Property Law and Real Estate Commons^™

The Possession Heuristic, James E. Krier, Christopher Serkin

Law & Economics Working Papers

This chapter for the forthcoming book, The Law and Economics of Possession (Yun-chien Chang, ed), explores the law of possession as an application of a heuristic (a simple decision making strategy devised to solve complex problems, part of System 1 thinking in Daniel Kahneman’s famous formulation). Since the law of property is essentially the law of belongings, its first task is to determine to whom things belong. There are all sorts of complicated inquiries that could be undertaken to figure out and justify an incredible range of answers to this question. Alternatively, there is a simple inquiry that provides a …

Profile - The Wildlife Conservation Society, James Hagy, Lana Buchbinder, Barbara Beau

Rooftops Project

What might it be like if your not-for-profit was responsible for projects with occupants consisting of humans plus some 1,700 other species? How can physical location and the needs of animals and visitors be harmonized through architectural design? Barbara Beau, Lana Buchbinder, and Professor James Hagy of The Rooftops Project interview Sue Chin about her work as Chief Architect at the Wildlife Conservation Society.

Social Hierarchies And The Formation Of Customary Property Law In Pre-Industrial China And England, Taisu Zhang

Faculty Scholarship

Comparative lawyers and economists have often assumed that traditional Chinese laws and customs reinforced the economic and political dominance of elites and, therefore, were unusually “despotic” towards the poor. Such assumptions are highly questionable: Quite the opposite, one of the most striking characteristics of Qing and Republican property institutions is that they often gave significantly greater economic protection to the poorer segments of society than comparable institutions in early modern England. In particular, Chinese property customs afforded much stronger powers of redemption to landowners who had pawned their land. In both societies, land-pawning occurred far more frequently among poorer households …

The Honey Trap: How Pesticide Regulations Hold The Key To Honey Bee Survival

Texas A&M Journal of Property Law

No abstract provided.

Field Of Dreams: Is The Movie Site's Commercialization A Dream Plan With Significant Benefits Or A Nightmare Script With Crippling Effects?, Michael J. Mcgraw

Texas A&M Journal of Property Law

This Comment will detail the field’s powerful attraction, discuss and analyze the applicable zoning laws and governing case law associated with comparable property disputes in relation to the present facts, praise the use of tax rebates to help subsidize the project, and assert that the public sector could have established even further requirements for the private business to meet before receiving such substantial public funds.

Old School: A Recommendation For The Treatment Of The Disposition Of Property Exempt From Local Zoning Ordinances In Kentucky, Christopher J. Ryan Jr.

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Advanced Property Issues In Family Law: An Annotated Bibliography, Travis Mcdonald, Nancy Levit

Faculty Works

This bibliography covers law review articles published, for the most part, after 2006 on property issues within the context of family law. Articles for which the title is self-explanatory or that concern only a single case, state, or statute are cited, but not annotated.

Dodd-Frank 2.0: Creating Interactive Home-Loan Disclosures To Enable Shrewd Consumer Decision-Making, 27 Loy. Consumer L. Rev. 95 (2014), Debra Pogrund Stark, Jessica M. Choplin, Mark A. Leboeuf, Andrew Pizor

UIC Law Open Access Faculty Scholarship

In Section I, we summarize and analyze the Dodd-Frank laws that were enacted to regulate home loan terms and the key changes made to the home loan disclosure rules and forms, critiquing in particular the changes made to the APR component of the new CFPB disclosure form. In Section II, we detail and report on the methods and results from two APR Experiments we conducted (one using eyetracking technology to see which areas of the disclosure form participants were looking at and for how long); we also report on the low level of financial literacy of the participants reflected in …

Property And The Right To Exclude Ii, Thomas W. Merrill

Faculty Scholarship

In 1998 I published a short essay entitled Property and the Right to Exclude. It appeared in an issue of the Nebraska Law Review honoring Lawrence Berger, a long-time property professor at Nebraska. The essay has been rather widely cited, but I have my doubts as to whether it has been widely read. A review of citations in Westlaw suggests that the essay is commonly identified as arguing that the right to exclude is the "sine qua non" of property, a statement that appears in the opening paragraph. The typical citing author takes this to mean that …

The Digital Death Conundrum: How Federal And State Laws Prevent Fiduciaries From Managing Digital Property, Christina L. Kunz, Damien A. Riehl, James D. Lamm, Peter J. Rademacher

Faculty Scholarship

This article discusses four types of fiduciaries, each of which is affected by the vast growth in and the need to manage digital property. The article begins by defining digital property and discussing why it must be managed. The article then discusses how digital property affects powers of attorney, conservatorships, probate administration, and trusts. After illustrating the problems that digital property creates for each fiduciary, the article shifts to resolving these problems. It begins by debunking purported solutions by both private and governmental entities. It concludes by offering a holistic approach to resolving the conflicts facing account holders, fiduciaries, and …

Contesting Disclaimer-Of-Reliance Clauses By Efficiency, Free Will, And Conscience: Staving Off Caveat Emptor, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This Article hopes to make evident two trends seemingly in conflict. The first trend is toward raising the standards of probity and veridicality in contractual relations toward greater accountability and liability on market actors operating outside traditional bounds. The first is expressed by new rules that: require good faith and fair dealing between parties; ensure sellers are obligated to disclose material facts about a property otherwise unavailable to buyers; and make wrongdoing parties liable to non-parties who foreseeably relied on the wrongdoers' contractual undertakings. This trend promises to avert injury, achieve efficiency, and seems to accord with society's evolving notions …

No Entry To The Public Lands: Towards A Theory Of A Public Trust Servitude For A Way Over Abutting Private Land, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This article explores the problem of inadequate access and why owners of private property abutting public lands cannot fence out the public if their sole or primary purpose is to deny access to public land. The reasons why such landowners should not be allowed to put up fences, even on their own land, if the effect is to hinder the public's access to public land are several. First, it is opportunistic and unjustly interferes with citizens' ability to enjoy the interest they hold in public lands. Second, it denies citizens access rights rooted in the common law. Third, and perhaps …

Muddying The Waterfall: How Ambiguous Liability Statutes Distort Creditor Priority In Condominium Foreclosures, Andrea Boyack, William E. Foster

Faculty Publications

Intentionally or not, every state’s law regarding lien priority and post-foreclosure liability allocates risk between mortgage lenders and privately governed “common interest communities” (CICs), such as condominiums. When lenders secure their interests with mortgages on property within a CIC, the mortgages may compete against the CIC’s interests for primacy in the lien hierarchy. Modern state regimes typically delineate the respective rights of mortgagees and CIC associations according to lien-priority statutes. Older condominium-enabling statutes, however, do not address CIC lien priority directly and speak only to continuing joint and several liability for subsequent purchasers. These older and more ambiguous statutes do …

Common Interest Community Covenants And The Freedom Of Contract Myth, Andrea Boyack

Faculty Publications

Courts take a hands-off approach with respect to the content of common interest community (CIC) covenants, reasoning that freedom of contract mandates their enforcement. But CIC covenants differ from voluntary private contracts in important ways, making deferential enforcement in the name of contract policy unwarranted. Covenants that run with the land are specifically enforceable and bind subsequent owners of the property, potentially in perpetuity. Furthermore, CIC covenants are contracts of adhesion, made up of completely non-negotiable, recorded terms bundled into home acquisition. Developers and lenders generally prescribe the content of such covenants, and they may not reflect community desires or …

Evictions, Aspiration And Avoidance, Brian E. Ray

Law Faculty Articles and Essays

In December 2011 four of the Constitutional Court’s five socio-economic rights cases turned on evictions.2 The Court decided three eviction-related cases in the 2012 term and two more in 2013.3 For a Court that averages fewer than 30 decisions per term 10 decisions in less than two and a half years is an extraordinary level of attention devoted to a single area of constitutional law.4 Does this sustained attention to eviction cases harbinger a significant development in the Court’s approach to the right to housing in FC s 26 and to socio-economic rights more generally? The cases provide some evidence …

Doppelganger Dilemma, Dominic Iannarella

Student Works

No abstract provided.

Not A Party: Challenging Mortgage Assignments, Eric A. Zacks, Dustin A. Zacks

Law Faculty Research Publications

No abstract provided.

Why We Need A Comprehensive Recording Fraud Registry, Randall K. Johnson

Faculty Works

This essay argues for a modest expansion of the Nationwide Mortgage Licensing System and Registry (NMLS). It does so, initially, by explaining why this online registry limits one type of recording fraud. The essay later describes how the NMLS could detect, and deter, more recording fraud. Lastly, it deals with concerns about a Comprehensive Recording Fraud Registry.

New Era Of Lavish Land Grants: Taking Public Property For Private Use And Brandt Revocable Trust V. United States, Danaya C. Wright

UF Law Faculty Publications

J.R. Pole's new book, Contract and Consent: Representation and the Jury in Anglo-American Legal History, is a delightful romp through centuries of Anglo-American history, law, and political theory. It would be better titled Contract, Consent, Juries, Sovereignty, and the State: A History of the Anglicization of Western Political Ideas. But in any event, this delightful set of essays, some more closely linked together than others, spans a breathtaking set of ideas--from sovereignty to the social compact to slavery to the moral agency of juries--through a breathtaking set of sources--from Slade's Case to Shakespeare to Aquinas to Faust to …

Reliance Interests And Takings Liability For Rail-Trail Conversions: Marvin M. Brandt Revocable Trust V. United States, Danaya C. Wright

UF Law Faculty Publications

On October 1, 2013, the U.S. Supreme Court granted certiorari in a relatively obscure case,Marvin M. Brandt Revocable Trust v. United States. On its face, the case involves an interpretation of the property rights created by the General Railroad Right of Way Act of 1875, which gave to any railroad, chartered by a state or territory, "[t]he right of way [200 feet wide] through the public lands of the United States." The 1875 Act was passed after a brief hiatus in congressional support for railroads following the era of lavish land grants between 1862 and 1871, in which over …

Substantive Due Process By Another Name: Koontz, Exactions, And The Regulatory Takings Doctrine, Mark Fenster

UF Law Faculty Publications

In Koontz v. St. Johns River Water Management District, a 5-4 majority of the United States Supreme Court reversed a state court decision that had limited the application of Nollan v. California Coastal Commission and Dolan v. City of Tigard. Nollan and Dolan concern the imposition of regulatory conditions on proposed development, also called exactions, which commonly occurs in land use regulation. In Koontz, a property owner challenged a regulatory agency's denial of his permit application following failed negotiations over exactions. The Florida Supreme Court had concluded that Nollan and Dolan did not extend to conditions that …

Weakening The “Ripeness Trap” For Federal Takings Claims: Sansotta V. Town Of Nags Head And Town Of Nags Head V. Toloczko, Michael B. Kent Jr.

Scholarly Works

No abstract provided.

Recent Development: Hamilton V. Kirson: The Court Of Appeals Of Maryland Held That Circumstantial Evidence Offered To Satisfy The Causation Element Of A Prima Facie Claim Of Negligence In Lead Paint Cases Must Demonstrate A Reasonable Probability, Not Mere Possibility, That The Subject Property Was The Cause Of The Lead Exposure, Matthew Stegman

University of Baltimore Law Forum

The Court of Appeals of Maryland held, in two consolidated cases, that circumstantial evidence presented to prove injuries from lead paint exposure was insufficient to survive a motion for summary judgment on the issue of causation.

Takings And The Right To Fish And Float In Colorado, Aaron Pettis

Indiana Law Journal

No abstract provided.

The Environmental Limitations To Property Rights In Brazil And The United States Of America, Leonardo Munhoz

Dissertations & Theses

This thesis aims to comparatively analyze the legislative evolution that environmental protection has experienced in the Brazilian versus the American legal systems and their relationship with property rights.

Demonstrably, Brazil’s concern with the environment actually came into focus in the 1980s and it therefore received treatment within the Federal Constitution of 1988, as a diffuse right, contributing to better, stronger environmental protection.

Similarly, the protection of the environment in the American Constitution and its statutes as well as their enforcement and interpretation within the legal system are explored.

Of concern is the notion that environmental protection and third-generation rights consequently …

Judicial Takings: Musings On Stop The Beach, James E. Krier

Articles

Judicial takings weren’t much talked about until a few years ago, when the Stop the Beach case made them suddenly salient. The case arose from a Florida statute, enacted in 1961, that authorizes public restoration of eroded beaches by adding sand to widen them seaward. Under the statute, the state has title to any new dry land resulting from restored beaches, meaning that waterfront owners whose land had previously extended to the mean high-tide line end up with public beaches between their land and the water. This, the owners claimed, resulted in a taking of their property, more particularly their …

Exactions Creep, Lee Anne Fennell, Eduardo M. PeñAlver

Cornell Law Faculty Publications

How can the Constitution protect landowners from government exploitation without disabling the machinery that protects landowners from each other? The Supreme Court left this central question unanswered — and indeed unasked — in Koontz v. St. Johns River Water Management District. The Court’s exactions jurisprudence, set forth in Nollan v. California Coastal Commission, Dolan v. City of Tigard, and now Koontz, requires the government to satisfy demanding criteria for certain bargains — or proposed bargains — implicating the use of land. Yet because virtually every restriction, fee, or tax associated with the ownership or use of land can be cast …

Judicial Takings: Musings On Stop The Beach, James E. Krier

Law & Economics Working Papers

This brief paper is a primer on and critique of judicial takings after Stop the Beach.

Judicial takings weren’t much talked about until a few years ago, when the Stop the Beach case made them suddenly salient. The case arose from a Florida statute, enacted in 1961, that authorizes public restoration of eroded beaches by adding sand to widen them seaward. Under the statute, the state has title to any new dry land resulting from restored beaches, meaning that waterfront owners whose land had previously extended to the mean high-tide line end up with public beaches between their land and …

The Categorical Lucas Rule And The Nuisance And Background Principles Exception, Carol N. Brown

Law Faculty Publications

This article examines the seminal 1992 United States Supreme Court decision, Lucas v. South Carolina Coastal Council, 1 specifically focusing on the Lucas nuisance exception. I surveyed approximately 1,600 reported regulatory takings cases decided since the Lucas decision involving Lucas takings challenges. I identified the statutory nuisance cases in which state and local governments unsuccessfully asserted the Lucas nuisance exception as a defense to the courts' findings of a Lucas taking. This article examines the prospective potential of these cases for assisting private property owners in enhancing private property rights protections within the area of regulatory takings.

The Three Waves Of Married Women's Property Acts In The Nineteenth Century With A Focus On Mississippi, New York And Oregon, Joseph A. Custer

Faculty Publications

This paper concentrates on three states that enacted married women's property acts during the nineteenth century: Mississippi, New York, and Oregon. Each state, starting with Mississippi, enacted acts that reflect a different wave. While Chused's indexing and classification schema have been groundbreaking and extremely helpful in providing order and a basic understanding of what types of married women's property acts were passed and when in the nineteenth century, in my opinion he did not clearly provide any underlying explanation or "why" for the passage of the acts.

This is not taking anything away from Chusad's substantial contribution, but does present …