Property Law and Real Estate Commons^™

The Future Of Fannie And Freddie, Mark Calabria, David Reiss, Lawrence White, Mark Willis

Cornell Law Faculty Publications

This is a transcript of a panel discussion titled, “The Future of Fannie and Freddie.” The panelists were Dr. Mark Calabria from the Cato Institute; Professor David Reiss from Brooklyn Law School; Professor Lawrence White from NYU Stern School of Business; and Dr. Mark Willis from NYU’s Furman Center for Real Estate and Urban Policy. The panel was moderated by Professor Michael Levine from NYU School of Law. Panelists looked at economic policy and future prospects for Fannie and Freddie. The remarks have not been edited by the panelists.

Forced Turnovers: Using Eminent Domain To Build Professional Sports Venues, Peter Montine

Washington Journal of Law, Technology & Arts

If a city wants to keep a professional sports team within its borders, can that city use the power of eminent domain to do so? Although cities have not been able to successfully condemn the actual sports franchises within their respective cities, they have been successful in condemning land for the development of new sports venues intended to entice their teams to stay. In 2005, the City of Arlington, Texas invoked the power of eminent domain to condemn and destroy houses to make room for the Dallas Cowboys’ new stadium. In 2006, New York City used eminent domain on land …

Conflicting Property Rights Between Conservation Easements And Oil And Gas Leases In Ohio: Why Current Law Could Benefit Conservation Efforts, Nicholas R. House

William & Mary Law Review

First, this Note will establish why conservation easements and oil and gas leases are likely to conflict. Second, this Note will present two scenarios under which conservation easements and oil and gas leases might conflict and then demonstrate how current law sorts out the conflicting rights. Third, it will advance several arguments for how conservation easements should be adapted, identifying specific provisions that should be altered in light of the Internal Revenue Code and Ohio’s current legal structure. By doing so, this Note will elucidate how the oil and gas boom in Ohio offers conservation organizations a unique opportunity to …

Accidental Inheritance: Retirement Accounts And The Hidden Law Of Succession, Stewart E. Sterk, Melanie B. Leslie

Articles

Americans currently hold more than $9 trillion in retirement savings accounts. Those accounts, together with the family home, are the principal source of wealth for most working and retired Americans. But when a retirement accountholder dies prior to exhausting retirement savings, what governs the distribution of the account? Most often, not the accountholder’s will or trust, but a one-page fill-in- the-blanks beneficiary designation form that the accountholder filled out, typically without advice of counsel, when she or he opened the account.

When accountholders fill out beneficiary designation forms, they are focused on starting a new job or beginning to save …

Evaluating The Impact Of The Home Affordable Modification Program In Response To The Foreclosure Crisis: Why Real Estate Securitization Demands A New Approach, John Kinney

University of the District of Columbia Law Review

This case presents an unfortunate, but all too common set of circumstances in the world today. Plaintiff is a homeowner in financial distress who seeks a loan modification from an unresponsive bank relying on an ineffectual federal program. This statement, by Magistrate Lois Bloom in Rivera v. Bank of America, best captures the utter frustration felt by financially distressed homeowners and sympathetic judges regarding the government's failed efforts to stem the foreclosure crisis. Heard countless times in thousands of courtrooms across the country in the aftermath of the 2008 global financial meltdown, Magistrate Bloom expressed what seemed deliberate efforts by …

How To Achieve Right Of Way Success, Dawn Haecker, Michael B. Jett, Jim Crall, Kathy Heistand, Nicolette Mendenhall, Todd Clift

Purdue Road School

The Real Estate Division of INDOT will provide an overview of the Right of Way process and key factors that affect time and expenditures. Panel discussion and Q&A session will include established best practices, new developments, lessons learned, and factors resulting in improved customer service and efficiency in terms of time and money for project delivery.

Complex Decision-Making And Cognitive Aging Call For Enhanced Protection Of Seniors Contemplating Reverse Mortgages, 46 Ariz. St. L.J. 299 (2014), Debra Pogrund Stark, Jessica M. Choplin, Joseph Mikels, Amber Schonbrun Mcdonnell

UIC Law Open Access Faculty Scholarship

This article analyzes the factors that affect the effectiveness of the current rules and counseling protocol in enabling seniors to make well-informed decisions on whether to enter into a proposed reverse mortgage in light of the cognitive barriers that consumers in general, and seniors in particular, face. The article then proposes further changes to these rules and the counseling protocol to better enable seniors to determine whether entering into reverse mortgages is in their best interest in light of their specific financial situations and goals. Section I provides an overview of the current status of the law relating to reverse …

The Parcel As A Whole: Defining The Relevant Parcel In Temporary Regulatory Takings Cases, Laura J. Powell

Washington Law Review

In regulatory takings cases, courts must look at the “parcel as a whole” rather than individual property interests to determine whether a taking has occurred. The Supreme Court, however, has not clarified how exactly the relevant parcel should be defined. The Federal Circuit’s recent decision in CCA Associates v. United States highlights the confusion surrounding the parcel as a whole. It also highlights the continuing need to clarify how the relevant parcel should be defined in temporary regulatory takings cases. This Comment analyzes the parcel as a whole in temporary regulatory takings cases, specifically those involving lost income. It argues …

Property, Exclusivity, And Jurisdiction, James Y. Stern

Faculty Publications

No abstract provided.

Property's Ends: The Publicness Of Private Law Values, Gregory S. Alexander

Cornell Law Faculty Publications

Property theorists commonly suppose that property has as its ends certain private values, such as individual autonomy and personal security. This Essay contends that property’s real end is human flourishing, that is, living a life that is as fulfilling as possible. Human flourishing, although property’s ultimate end, is neither monistic nor simple. Rather, it is inclusive and comprises multiple values. Those values, the content of human flourishing, derives, at least in part, from an understanding of the sorts of beings we are―social and political. A consequence of this conception of the human condition is that the values that constitute human …

House Swaps: A Strategic Bankruptcy Solution To The Foreclosure Crisis, Lynn M. Lopucki

Michigan Law Review

Since the price peak in 2006, home values have fallen more than 30 percent, leaving millions of Americans with negative equity in their homes. Until the Supreme Court’s 1993 decision in Nobelman v. American Savings Bank, the bankruptcy system would have provided many such homeowners with a remedy. They could have filed bankruptcy, discharged the negative equity, committed to pay the mortgage holders the full values of their homes, and retained those homes. In Nobelman, however, the Court misinterpreted reasonably clear statutory language and invented legislative history to resolve a three-to-one split of circuits in favor of the minority view …

The Value Of Conservation Easements: An Analysis Of The Effects Of Conservation Easements On Property Values In Central Vermont., Jonathan Decker

Capstone Collection

This capstone research aims to explore the possibilities of an association between changes in the fair market value of landed properties and their proximity to land parcels containing conservation easements. The study attempts to provide a greater understanding of how conservation easements provide benefits to Vermont municipalities. These benefits are described as ecosystem services, and their value was proxied by increases in the fair market value of transferred real-estate located within two distinct radiuses of the conserved land.

The study focuses on two specific properties located in the towns of Marshfield and East Montpelier. For each town, four separate datasets …

Farming The Slums: Using Eminent Domain And Urban Agriculture To Rebuild Baltimore's Blighted Neighborhoods, Keith Buzby

William & Mary Environmental Law and Policy Review

No abstract provided.

Banking And The Social Contract, Mehrsa Baradaran

Notre Dame Law Review

This Article asserts that there are three major tenets of the social contract: (1) safety and soundness, (2) consumer protection, and (3) access to credit. Regulators can and should require banks to meet standards in these areas to benefit society even if these measures reasonably reduce bank profits. Implicit in the social contract is the idea that each party must give up something in the exchange. This Article provides policymakers not only the appropriate narrative and justifications needed to frame their regulatory philosophy, but it also provides important textual support from the most prominent acts of banking legislation to give …

Reliance In Land Use Law, Kenneth A. Stahl

BYU Law Review

For generations, Americans have tapped their life savings and assumed huge amounts of debt in order to achieve the American dream of owning their own home. Though investing so heavily in a single asset is a rather risky move on its face, buyers have been induced to purchase homes by a slew of public policies, most notably zoning ordinances that buffer single-family neighborhoods against an invasion of unwanted uses. As a result, homeowners have a fairly convincing argument that they possess some sort of vested reliance interest in the existing zoning of their neighborhoods that should prevent municipal authorities from …

Requiem For Regulation, Garrett Power

Faculty Scholarship

This comment reviews U.S. Supreme Court decisions over the past 100 years which have considered the constitutional limitations on governmental powers. It finds that at the three-quarter mark of the 20th century, a remarkable set of Court precedents had swollen the regulatory powers of governments while shrinking private rights to property and contract. But since the Reagan years, a more conservative Court has undertaken to curtail governmental activity in general, and to limit federal, state, and local planning in particular. A number of 5-4 decisions expanded private property rights and contracted the scope of the federal “commerce power.” The comment …

Comments: An Unnecessary "Solution": High-Performance Market-Rate Rental Housing, David Hornstein

University of Baltimore Journal of Land and Development

On April 11, 2013, new rules and regulations regarding Baltimore City's property tax credits became effective. Similar to the payments in lieu of taxes program (PILOT), Baltimore City has enacted rules and regulations that afford property owners a major tax credit for developing and, or converting current buildings into high-performance market-rate rental housing. Baltimore City Mayor, Stephanie Rawlings- Blake, is optimistic about the tax credit, believing the credit will spur development within Baltimore City. The city believes that development projects will attract new residents to Baltimore City, as well as deter current residents from leaving the city for areas that …

Settlement Equals Another Missed Opportunity For The Supreme Court To Define Disparate Impact Claims Under The Fair Housing Act, Erika Flaschner

University of Baltimore Journal of Land and Development

In 2003, the New Jersey Township of Mount Holly designated a neighborhood known as the Gardens as a blighted, high crime area, and called for its redevelopment. The Township adopted a plan to demolish the Gardens and replace it with new residential units, of which only a fraction were designated for affordable housing. However, the predominately minority population of the Gardens filed suit to overturn the blight designation and stop the redevelopment plan on the grounds that the plan violated the Fair Housing Act (FHA) on a disparate impact theory.

Comments: Baltimore City's Green Building Standards, Building Towards An Uncertain Future, Gregory Franklin

University of Baltimore Journal of Land and Development

In August 2007 the Baltimore City Council passed Council Bill 07-0602 mandating that newly built and "extensively modified" buildings over 10,000 square feet comply with "Green Building Standards." This law is considered among the first and most extensive green building codes to be passed so far in the United States. This law has not surprisingly sparked praise and criticism. While the law has been praised for its potential environmental benefits, it has also been criticized on the grounds that it is stricter than the laws of surrounding jurisdictions and has made building in Baltimore excessively expensive. Moreover, the law has …

Promise Vs. Performance: Why Public Subsidies Of Private Development Are Not Likely To Produce Fair Returns To The Taxpaying Public, Marc Knapp

University of Baltimore Journal of Land and Development

On September 10, 2013, the Baltimore City Council gave final approval to Harbor Point, a $1 billion multi-use project to be built on a vacant, remediated brownfield that juts into Baltimore's Inner Harbor. Like many urban development or redevelopment projects, Harbor Point will be supported by significant taxpayer subsidies. Between a $107 million direct investment in project-related infrastructure largely parks that will surround the to-be-built offices, shops and residences, and a waterfront promenade - along with a mixed bag of real estate and income tax incentives, the visible public support to Harbor Point will exceed $200 million, 20% of projected …

Thank You Sir, May I Have Another: The Issue Of The Unsustainablity Of Low Income Housing Tax Credits And Proposed Solutions, John Baber

University of Baltimore Journal of Land and Development

The Federal Low-Income Housing Tax Credit (LIHTC) program is currently the nation's largest federal subsidy for the development and rehabilitation of affordable housing, having created or preserved over 2.5 million housing units and distributed over $7.5 billion in federal tax credits to developers of and investors in affordable housing from the program's inception in 1986 through 2007. However, despite its monumental size and impact, the program has some potentially fatal flaws that threaten the long-term financial and physical viability of the very affordable housing that it creates, and threatens the health of the neighborhoods that it is created in. Affordable …

Taking On Water: Local Government, Eminent Domain, And The Foreclosure Crisis, Brian Cullin

University of Baltimore Journal of Land and Development

The 2008 Financial Crisis and the ensuing Great Recession sent shockwaves throughout the U.S. and global economy, wreaking havoc from Wall Street to Main Street. The Crisis harkened economic contraction, high unemployment, and elevated rates of home foreclosure. While the financial industry recovered, spelling an end to one crisis, another continues - the Foreclosure Crisis. The rate of home foreclosure, already ominously on the rise before 2008 and growing in intensity and breadth in the aftermath of the Financial Crisis, provides the foundation for this paper. This article examines an innovative public-private partnership between a private firm, Mortgage Resolution Partners …

A Bundle Of Confusion For The Income Tax: What It Means To Own Something, Stephanie H. Mcmahon

Faculty Articles and Other Publications

ABSTRACT-Conceptions of property exist on a spectrum between the Blackstonian absolute dominion over an object to a bundle of rights and obligations that recognizes, if not encourages, the splitting of property interests among different people. The development of the bundle of rights conception of property occurred in roughly the same era as the enactment of the modem federal income tax. Nevertheless, when Congress enacted the tax in 1913, it did not consider how the nuances of property, and the possible splitting of the interests in an income-producing item, might affect application of the tax. Soon after the tax's enactment, the …

Tax Ferrets, Tax Consultants, Bounty Hunters, And Hired Guns: The Property Tax Netherworld Fueled By Contingency Fees And Champertous Agreements, J. Lyn Entrikin

Chicago-Kent Law Review

Contingency fee agreements between local tax assessors and contract auditors on the one hand, and property owners and private tax consultants on the other, create perverse financial incentives that undermine the integrity of state and local property tax administration. When local governments engage outside auditors to identify undervalued or escaped taxable property, the practice raises serious due process and ethical concerns. As a matter of policy, diverting a share of property tax revenue to private third parties in consideration for outsourced tax assessment services undermines public accountability and reduces net property tax revenue for local government services. And when states …

Barking Dogs: Code Enforcement Is All Barkand No Bite (Unless The Inspectors Have Assult Rifles), Marilyn Uzdavines

Faculty Scholarship

In Detroit, Michigan, in 2014, 1 broken windows, a roof caving in, and a yard that had not been maintained for years is the view for its residents in a blighted and unstable neighborhood. Code enforcement inspectors are nowhereto be found. The local code enforcement department lacks the resources, manpower, and strategic plan to deal with blight on a massive scale

The Right To Include, Daniel B. Kelly

Journal Articles

Recent scholarship has created renewed interest in the “right to exclude.” Many contend that, because owners have a right to exclude, private property has a tendency to promote individualism and exclusion. But, as I will argue, property can promote sociability and inclusion by providing owners with various ways of including others. Owners can assert their “right to include” by waiving exclusion rights, dividing existing rights by contracts or property forms, and creating new co-ownership arrangements. Inclusion is socially beneficial insofar as it enables sharing and exchange, facilitates financing and risk-spreading, and promotes specialization. Yet inclusion may entail costs, including coordination …

Private Law In The Gaps, Jeffrey A. Pojanowski

Journal Articles

Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …

A New Devil In The White City: The Demolition Of Prentice Women's Hospital And The Failures Of Chicago's Landmarks Ordinance, 48 J. Marshall L. Rev. 391 (2014), Laura Luisi

UIC Law Review

Chicago’s culture is, in large part, defined by its courageous, innovative, and rich architectural history. With such a strong cultural identity comes the responsibility to preserve the City’s character for generations to come. Throughout its history, the City of Chicago allowed architectural masterpieces to succumb to economic and political pressures. The recent decision in Hanna v. City of Chicago left Chicago’s Landmarks Ordinance unscathed, but nevertheless, its inadequacies are showcased by the demolition of the Prentice Women’s Hospital. An examination of the landmark ordinances of other large American cities further demonstrates the shortcomings of Chicago’s own ordinance. Chicago’s Landmarks Ordinance, …

More Market-Oriented Than The United States And More Socialist Than China: A Comparative Public Property Story Of Singapore, Jianlin Chen, Jiongzhe Cui

Washington International Law Journal

Compared to the more illustrious conceptualization of private property, the conceptualization of public property remains at a surprisingly infantile stage. The very definition of public property is ambiguous. This article utilizes a comparative case study of traffic congestion policies in the United States, China, and Singapore to highlight the conceptual pitfalls posed by the current confusion on public property. This article proposes a refined public property framework that offers greater conceptual clarity on the real issues at stake. In particular, this article argues that “property” in public property should include regulatory permits while “public” in public property should not be …

Empowering The Consumer: A Discussion On Minnesota's Dual Agency Statute And A Proposed Solution That Puts The Consumer First, Micheal Fleming

Student Scholarship

Many Americans across this county strive to achieve the dream of home ownership. The obstacles that stand in the way of achieving that dream can be staggering and unique to the persons pursuing home ownership. To a certain extent, it is expected that there be some proverbial hoops of fire to jump through before finally turning that key to a new home. What the consumer does not expect is to find a statutory scheme that creates unnecessary obstacles, such as a broker with a divided loyalty and information barriers, at the expense of the public. This statutory scheme is enshrined …