Property Law and Real Estate Commons^™

An Introduction To Conservation Easements In The United States: A Simple Concept And A Complicated Mosaic Of Law, Federico Cheever, Nancy A. Mclaughlin

Sturm College of Law: Faculty Scholarship

The idea of a conservation easement – restrictions on the development and use of land designed to protect the land’s conservation or historic values – can be relatively easily understood. More significant and more challenging is the complex body of state and federal laws that shapes the creation, funding, tax treatment, enforcement, modification, and termination of conservation easements.

The explosion in the number of conservation easements over the past four decades has made them one of the most popular land protection mechanisms in the United States. The National Conservation Easement Database estimates that the total number of acres encumbered by …

Using Historic Preservation Laws To Halt The Destruction Of Porch Culture In The Lower Ninth Ward Of New Orleans, Jamila Jefferson-Jones

Law Faculty Research Publications

No abstract provided.

Wildlands Conservancy Addendum, Susie Van Kirk

Susie Van Kirk Papers

Shaw Property: W Half SE qt, SE qt SE qt sec 6; NE qt NE qt sec 7, 2N2W. Barn located across Centerville Road (north side) from house. Looks like both are in sec 7. Report includes site visit, deed information, tax assessments, references, and photos.

Recognition And Reflection, Kristen Barnes

Texas A&M Journal of Property Law

This Article focuses on the meaning of the system Gerhart describes by unpacking some of the conclusions he draws regarding legitimacy, cooperation, and morality. The Article also evaluates the framework he proposes for achieving decisions that are “fair and efficient.”3 The Article concludes that Gerhart’s theory significantly advances the project of incorporating equalizing concepts into property law which should result in decisions that are more equitable from a participatory and distributive perspective. However, there are aspects of the theory that do not capture the discordant elements of property systems and that do not unearth the inequalities at the root of …

Mission Impracticable: The Impossibility Of Commercial Impracticability, Jennifer Camero

The University of New Hampshire Law Review

[Excerpt] “Residents of Chicago’s Streeterville neighborhood certainly cannot forget the recent financial crisis thanks to a gaping hole in their midst. That hole is to be the home of the Spire, the tallest building in the Northern Hemisphere, at 2,000 feet high with 1,194 residences ranging in price from $750,000 for a studio to $40 million for the penthouse. The developer, Shelbourne Development Group, Inc., began construction in 2007 using its own funds. It also obtained “starter” funds from Bank of America via a loan agreement that required Shelbourne to demonstrate proof of a construction loan by November 1, 2008. …

Why New Hampshire Should Permit Married Couples To Choose Community Property, Calvin Massey

The University of New Hampshire Law Review

[Excerpt] “Two states, Alaska and Tennessee, offer married couples the choice of holding their property as separate or community property. Another nine states use community property as the default arrangement. Yet in each of those nine states a couple can opt out of community property rules by agreement. Only in the remaining thirty-nine states are married couples forced to accept separate property. There is no good reason for this condition to exist. This essay sets forth the advantages of offering married couples the choice of community or separate property and deals with some expected objections to this proposal. Section I …

Zombie Subdivisions In The United States And Ghost Developments In Europe: Lessons For Local Governments, Jan G. Laitos, Rachel Martin

Washington Journal of Environmental Law & Policy

This article addresses the phenomenon of abandoned or failed commercial or residential developments, sometimes referred to as “zombie subdivisions” in America, and “ghost developments” in Europe. Both arose as a result of the real estate market disintegration after 2008. Around the world, but particularly in America and in certain European countries, developers ran out of funds and were unable to finish their projects, resulting in non-completed or largely vacant “zombie” or ghost properties. Such abandoned properties can be found throughout America and Europe, but they are more common in particular Intermountain states in the United States, and in Ireland, Spain …

Small Property, Adverse Possession And Optional Law, Shitong Qiao

Faculty Scholarship

No abstract provided.

Fracking: The Unconventional Energy Response To Climate Change: Implications For The Real Estate Industry, 49 J. Marshall L. Rev. 449 (2015), Celeste Hammond

UIC Law Review

No abstract provided.

Land Use And Climate Change Bubbles: Resilience, Retreat, And Due Diligence, John R. Nolon

Elisabeth Haub School of Law Faculty Publications

This Article examines events on the ground in several localities where climate change is lowering property values and analyzes how those changes in value can be reckoned with by regulators. It merges practices and principles of real estate transactions and finance with those of land use and environmental regulation.

Climate change is a planetary phenomenon whose environmental implications are far-reaching. Reports on climate change consequences increasingly focus on what is happening locally and presently, while speculation continues about long-term global consequences. In numerous communities, property values are declining because of repeated flooding, continued threats of storm surges, sustained high temperatures, …

Building Resilient Communities In The Wake Of Climate Change While Keeping Affordable Housing Safe From Sea Changes In Nature And Policy, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This Article will explore the twin interests of responding to climate change and preserving accessible and affordable housing. Part II will give a broad overview of the scientists' climate change predictions. Part III will discuss what these predictions portend for populations, housing, and communities. Part IV will describe the broad responses that the federal, state, and local governments are making to climate change to create communities that are thriving and resilient. Part V discusses the efficacy of these responses and their potential impact on the poor, housing, and communities. Part VI looks for parallels between the resilient cities movement and …

Property, Morality, And Moral Psychology: Comments On Gerhart’S Property Law And Social Morality, Dave Fagundes

Texas A&M Journal of Property Law

My comments will proceed in two parts. In Part I, I will briefly describe and summarize the study of moral psychology, indicating how it might apply to property law. And in Part II, I will analyze Property and Social Morality through the lens of moral psychology, showing how Professor Gerhart’s project may be advanced through a richer understanding of the content of our ethical beliefs about property and the psychological mechanisms that give rise to them.

Moral Obligation And Natural Capital Commons On Private Land: Perspectives On Peter Gerhart’S Property Law And Social Morality, Blake Hudson

Texas A&M Journal of Property Law

This Article makes a simple and hopefully straightforward attempt to demonstrate how Gerhart’s property theory fills the gaps in privatized commons resource theory. Part II describes in more detail privatized commons resource theory, while Part III discusses Gerhart’s theory both generally and more specifically in the context of natural resources management. This Part first analyzes Gerhart’s explicit grappling with the commons broadly, and more directly wrestles with how his theory lays a legal framework for addressing temporal commons and the interests of future generations in natural capital. Next, this Part discusses the role of positive public law in manifesting society’s …

The Evolution Of Relational Property Rights: A Case Of Chinese Rural Land Reform, Shitong Qiao, Frank Upham

Faculty Scholarship

The most notable, or at least the most noted, form of property evolution has been the transfer of exclusive rights from collectives to individuals and vice versa, such as the farm collectivization in Soviet Union and the establishment of the People’s Communes in Mao’s China and their reversals. Such radical moments, however, constitute only a small part of history. For the most part, property rights evolve quietly and incrementally, which is hard to explain if we take exclusive rights as the core of property, or, to put it more generally, if we are focusing solely on the question of who …

What Is Owed: Obligation’S Relevance In Property And Intellectual Property Theory, Kali Murray

Texas A&M Journal of Property Law

This Essay explores how Gerhart’s theory of social obligation in property law offers us an innovative way to characterize key theories in patent law. Consequently, throughout this Essay, I employ lessons from patent law that provide a concrete example of how obligations may work in various doctrinal subjects. Part I outlines the basic contours of Gerhart’s theory of obligation. Part II outlines the three basic functions of obligation in property and intellectual property theory. It is hoped that this Essay will serve a substantive function by continuing the ongoing dialogue between property law and intellectual property law in ways that …

Reflections An Property As A Social Good, Peter M. Gerhart

Texas A&M Journal of Property Law

In this reflection, Professor Gerhart relates the ideas of the symposium contributors to his goals in writing Property Law and Social Morality. In doing so, he reflects, in Part I, on his attempt to separate politics from private law property theory, and, in Part II, on how his framework theory provides a mechanism for integrating ideas about the content of legal doctrine from a wide variety of intellectual disciplines. In the first Part of his reflection, Professor Gerhart comments on the corrective justice/distributive justice distinction, related theories of human flourishing, and on rights theories. In the second Part of the …

A Moral Theory Of Property, Laura S. Underkuffler

Texas A&M Journal of Property Law

Gerhart’s theory of “property as tort” is simple, bold, and intuitively compelling. Just as actions that an individual voluntarily undertakes can impose moral obligations in tort, so actions that an individual voluntarily undertakes can impose moral obligations in property. Finally, we have a simple, understandable basis on which other-regarding obligations can be imposed upon property owners, for the externalities that they cause. But does it capture all that is involved in the ownership of property? Put another way, does Gerhart reckon with all of the implications of his theory in the complex world of property ownership?

Horne V. Usda: The Takings Clause, The Commerce Clause, And The "World's Most Outdated Law", Thomas E. Travis

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Local Sustainability Movement Rides Wave Of Evolving Federalism To 'Axe' Private Property Rights, Lawrence A. Kogan

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Making "Smart Growth" Smarter, Steve P. Calandrillo, Chryssa V. Deliganis, Andrea Woods

Articles

The “smart growth” movement has had a significant influence on land use regulation over the past few decades, and promises to offer the antidote to suburban sprawl. But states and local governments that once enthusiastically touted smart growth legislation are beginning to confront unforeseen obstacles and unintended consequences resulting from their new policies.

This Article explores the impact of growth management acts on private property rights, noting the inevitable and growing conflicts between the two sides that legislatures and courts are now being asked to sort out. It assesses the problems with creating truly intelligent urban growth, ranging from political …

Anticipatory Remedies For Takings, Thomas W. Merrill

Faculty Scholarship

The Supreme Court has rendered two lines of decisions about the remedies available for a violation of the Takings Clause. One line holds that courts have no authority to enter anticipatory decrees in takings cases if the claimant can obtain compensation elsewhere. The other line, which includes three of the Court's most recent takings cases, results in the entry of an anticipatory decree about takings liability. This Essay argues that the second line is the correct one. Courts should be allowed to enter declaratory or other anticipatory judgments about takings liability, as long as they respect the limited nature of …

Ownership And Possession, Thomas W. Merrill

Faculty Scholarship

One of the enduring mysteries about property is why the law protects both ownership and possession. In a pre-modern world, with low rates of literacy and no formal method of registering titles, one can understand why the law would protect possession. In such a world, there may be no concept of property beyond the understanding that persons should respect possessory rights established by others. It is less clear why possession should be protected once property comes to be understood as ownership. Ownership and possession will commonly overlap, and protecting ownership will protect possession. Nevertheless, even in the most sophisticated legal …

Profiles - Chicago Literacenter, James Hagy

Rooftops Project

Business news is often filled with stories about incubator spaces and entrepreneurial hubs in which start-up companies can hang out, network, and grow. What might result when these concepts are adapted to bring together diverse not-for-profit organizations focused on similar missions? Professor James Hagy visits Stacy Ratner, Co-Founder and Creative Director of the Chicago Literacy Alliance, and Transwestern’s Larry Serota at the grand opening of Literacenter in downtown Chicago.

Common Law Property Theory And Jurisprudence In Canada, Sarah E. Hamill

Osgoode Legal Studies Research Paper Series

In recent years, property theorists have offered varying accounts as to what exactly ownership is, typically focusing on one or more key rights to the owned thing. However, most of these theories are articulated in the abstract and do not engage the jurisprudence. This article uses the jurisprudence concerning expropriation and adverse possession to show that Canadian courts have in fact developed their own definition of ownership — one that is not reflected in the property theory discourse. The author goes on to argue that this narrower definition of ownership — made up by the rights to exclude and to …

Property Law: Limited Compensation Under Minnesota's Minimum-Compensation Statute—County Of Dakota V. Cameron, Kristine J. Williams

William Mitchell Law Review

No abstract provided.

Paradoxes, Parallels And Fictions: The Case For Landlord Tort Liability Under The Revised Uniform Residential Landlord-Tenant Act, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

In this article, I show how a coherent legal narrative must capture the revolution's radical policy by abandoning the no tort liability rule, which can be done in a number of ways: an open acknowledgement that the duty to repair creates a new property right that must be enforced by a property rule or more subtly through the use of both traditional and modern tools of jurisprudence, that is, legal fictions, equitable maxims and economic efficiency analysis. This article proceeds with a discussion of the common law landlord-tenant law, the adoption of the implied warranty of habitability, along with the …

On Corrective Justice And Rights In Property: A Comment On Property Law And Social Morality, Eric R. Claeys

Texas A&M Journal of Property Law

In this Review, I hope to critique specific parts of Property Law and Social Morality that fairly represent these various reactions. In Part I, I explain the basis for my first cheer, and situate Property Law and Social Morality in relation to other prominent moral theories of property. In Part II, I study one representative example confirming my second cheer about Gerhart’s cross-pollination experiment—his critique of economic “evolutionary” or “Demsetzian” accounts of property in chapter 4. In Part III, I offer what I hope is a friendly amendment to Property Law and Social Morality, to clarify several possible confusions about …

From Social Recognition Of Property To Political Recognition By The State: Peter Gerhart’S Property Law And Social Morality And The Evolution Of Positive Rights, Christopher Serkin

Texas A&M Journal of Property Law

This short response argues that positive property rights—especially in a modern regulatory state—are inherently redistributive. When the State has a choice between different regulatory strategies for achieving public goals, constitutional limits like the Takings Clause should not rely on formal categories but must instead account explicitly for distributive concerns. At the end of the day, the State is an active, not passive, player in the definition of property rights, a role that comes with both constitutional limitations and requirements.

Doing A Double Take: Rail-Trail Takings Litigation In The Post-Brandt Trust Era, Danaya C. Wright

UF Law Faculty Publications

After providing a brief explanation of railroad development, railbanking, the takings cases, and the Brandt Trust decision, this Article will explore the implications of each of these three legal issues at the heart of the takings disputes. What makes the decision in Marvin M. Brandt Revocable Trust v. United States particularly disappointing is not that the Court came to the wrong conclusion in its interpretation of the railroad’s interest in federally granted railroad rights of way (“FGROWs”) granted pursuant to the 1875 General Railroad Right of Way Act, but that its wrong interpretation adds all of the 1875 Act FGROW …

Horizontal Drilling, Vertical Problems: Property Law Challenges From The Marcellus Shale Boom, 49 J. Marshall L. Rev. 413 (2015), Joshua Fershee, S. Alex Shay

UIC Law Review

No abstract provided.