Property Law and Real Estate Commons^™

The Cathedral Engulfed: Sea-Level Rise, Property Rights, And Time, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Sea-level rise will require many new initiatives in land use regulation to adapt to unprecedented climate conditions. Such government actions will prompt regulatory and other takings claims, and also will be shaped by apprehension of such claims. This article analyzes the categories of land use regulations and other government initiatives likely to be enacted to adapt to sea-level rise and anticipates the takings claims that may be brought against them. In addition to hard and soft coastal armoring, the article considers regulations intended to force or induce development to retreat from rising waters. Retreat regulations present difficult takings problems, because …

The Conservation Easement Tax Expenditure: In Search Of Conservation Value, Roger Colinvaux

Scholarly Articles

Federal tax law has long provided a tax benefit for charitable contributions of easements for conservation purposes. A fundamental problem with this conservation easement tax expenditure is that the measure for the tax benefit – lost economic development value – is erroneous. Use of such an erroneous measure obscures the conservation benefits of the program by focusing attention and resources on divining a largely extraneous and unhelpful number. Further, to a considerable extent, the easement program is reflexively justified and understood based on this false measure, as if it represented the conservation value of the program. The Article argues that, …

Cases And Materials On American Property Law, 6th Edition, Carol N. Brown

Law Faculty Publications

This casebook continues its traditional approach to the teaching of property law. The new edition features a number of new cases inserted into almost every chapter of the book. The notes and comments have been appropriately updated. The opening chapter continues to include a section of cases designed to hone a student's skill in close case analysis. The book in its entirety introduces students to a broad spectrum of material traditionally covered in a first-year property course.

"[This] I Know From My Grandfather:" The Battle For Admissibility Of Indigenous Oral History As Proof Of Tribal Land Claims, Hope M. Babcock

American Indian Law Review

A major obstacle indigenous land claimants must face is the applicationof federal evidentiary rules, like the hearsay doctrine, which block the useof oral history to establish legal claims. It is often oral history and storiesthat tribes rely upon as evidence to support their claims, reducingsubstantially the likelihood of a tribe prevailing. Indigenous oral historypresents unique challenges to judges when faced with its admissibility.Canadian courts have largely overcome these challenges by interpretingevidentiary rules liberally, in favor of the aborigines. As such, Canadianaborigines have enjoyed greater land claim success than indigenousclaimants in the United States, raising the question why United Statescourts do …

Sword Or Submission? American Indian Natural Resource Claims Settlement Legislation, Benjamin A. Kahn

American Indian Law Review

No abstract provided.

Winner, Best Appellate Brief In The 2012 Native American Law Student Association Moot Court Competition, Jocelyn Jenks, Jacquelyn Amour Jampolsky

American Indian Law Review

No abstract provided.

Fire Losses And Conflicting Judicial Rulings Over Whether Property Insurers Must Indemnify Insureds And Pay Third-Party Claims - Some Implications For Wildfire Litigation In Texas's Courts, Willy E. Rice

Faculty Articles

Wildfires in Texas have generated two interrelated questions: (1) whether insurers have a duty to indemnify residential and commercial property owners if a wild forest, brush, grass, or prairie fire destroys homeowners' property in Texas, and (2) whether insurers have a duty to pay or settle third-party claims in Texas if a property owner starts a fire on her property, which evolves into a wildfire and destroys a third party's residential or commercial property.

Identifying Values In Land Use Regulation, Adam J. Macleod

Scholarly Articles

The rules governing the lawfulness of land use decisions are a mess. State enabling acts elide distinguishable and plural objectives of the police powers. Courts — especially state courts — generally fail to distinguish between different types of challenges and different types of land use regulatory actions. As a result, courts typically resort to the deferential position that the Supreme Court adopted in Village of Euclid, Ohio v. Ambler Realty Co., even where that standard of review is wholly inappropriate.

Meanwhile, the evidence is mounting that local governments often exercise their land use regulatory authority in arbitrary, irrational, and discriminatory …

Inclusionary Housing On A Global Basis, James J. Kelly Jr.

Journal Articles

This is a book review of Inclusionary Housing in International Perspective: Affordable Housing, Social Inclusion, and Land Value Recapture (2010, Nico Calavita and Alan Mallach, eds.). The book offers a comparative look at land-use based approaches to the creation of affordable housing in a broad range of developed countries. A little less than a sixth of the book is dedicated to the U.S., with special attention given to the development on inclusionary programs in California and New Jersey. The editors then devote a chapter each to Canada, England, Ireland, France, Spain and Italy. The penultimate chapter looks at inclusionary practices …

Suing Courts, Frederic Bloom, Christopher Serkin

Publications

This Article argues for a new and unexpected mechanism of judicial accountability: suing courts. Current models of court accountability focus almost entirely on correcting legal errors. A suit against the court would concentrate on something different--on providing transition relief, by way of legal remedy, to those bearing the heaviest burdens of desirable legal change. These suits may at first appear impossible. But suing courts is conceptually rational and mechanically reasonable, a tool that eases legal transitions while navigating the many hurdles modern doctrine puts in the way. This Article sets out the first complete account of how, where, and why …

Using Agent-Based Modeling To Simulate The Foreclosure Contagion Effect, Andrew J. Collins, Michael J. Seiler

Engineering Management & Systems Engineering Faculty Publications

A foreclosed property can have a negative impact on the prices of other properties within its neighborhood and these reduced property prices can lead to further foreclosures within the neighborhood; this is known as the foreclosure contagion effect. This effect has been demonstrated, within the real estate literature, to occur. Traditionally, real estate research have used statistical regression to analysis this issues. The application of Agent-based Modeling and Simulation (ABMS) has risen in the last 15 years and has successfully been used to model complexity situations, e.g., the real estate market. ABMS offers a way to explore the impact of …

Water Rights, Markets, And Changing Ecological Conditions, Jonathan H. Adler

Faculty Publications

Conventional environmentalist thought is suspicious of private markets and property rights. The prospect of global climate change, and consequent ecological disruptions, has fueled the call for additional limitations on private markets and property rights. This Essay presents an alternative view. Specifically, this Essay briefly explains why environmental problems generally, and the prospect of changing environmental conditions such as those brought about by climate change in particular, do not counsel further restrictions on private property rights and markets. To the contrary, the prospect of significant environmental changes strengthens the case for greater reliance on property rights and market institutions to address …

Official Maps And The Regulatory Takings Problem: A Legislative Solution, Trent Andrews

BYU Law Review

No abstract provided.

Summary Of Holt V. Regional Trustee Services Corp., 127 Nev. Adv. Op. 80, Brandon C. Sendall

Nevada Supreme Court Summaries

The Court considered an appeal from a district court order refusing to enjoin a lender from instituting a second foreclosure action after being denied a Foreclosure Mediation Program certificate in a prior foreclosure action.

Foreclosing Modifications: How Servicer Incentives Discourage Loan Modifications, Diane E. Thompson

Washington Law Review

Despite record losses to investors, homeowners, and surrounding communities, the foreclosure crisis continues to swell. Many commentators have urged an increase in the number of loan modifications as a solution to the foreclosure crisis. The Obama Administration created a program specifically designed to encourage modifications. Yet, the number of foreclosures continues to outpace modifications. One reason foreclosures outpace modifications is that the mortgage-modification decision maker’s incentives generally favor a foreclosure over a modification. The decision maker is not the investor or the lender, but a separate entity, the servicer. The servicer’s main function is to collect and process payments from …

Real Property, Linda S. Finley

Mercer Law Review

The survey period, June 1, 2010 through May 31, 2011, saw continued dire economic times for Georgia and the entire United States, which were marked with a record-breaking number of foreclosures. Georgia courts and the Georgia General Assembly began to pay attention to the foreclosure process, the diminution of property values, and how these issues affect Georgia families. Although the purpose of this Article is not to specifically address these serious issues, judicial and legislative trends indicate that these issues will be around for some time.

Pluralism And Property, Gregory S. Alexander

Cornell Law Faculty Publications

Welfarism is no longer the only game in the town of property theory. In the last several years a number of property scholars have begun developing various versions of a general vision of property and ownership that, although consistent with welfarism in some respects, purports to provide an alternative to the still-dominant welfarist account. This alternative proceeds under different labels, including “virtue theory” and “progressive,” but for convenience purposes let us call them collectively “social obligation” theories. For what they have in common is a desire to correct the common but mistaken notion that ownership is solely about rights. These …

Property's Memories, Eduardo M. Peñalver

Cornell Law Faculty Publications

This short essay, presented at Fordham's conference on the social functions of property (and in an earlier form at a conference on law and memory at USC), explores the relationship between property and memory. It distinguishes between property as the object of memory ("memory of property") and property as a medium of memory ("memory in property"). With respect to both kinds of memory, the common law expresses a great deal of ambivalence towards memory. Unlimited memory is no less dangerous to a system of property than it is to an individual’s ability to think. Recent reforms of adverse possession, the …

The Public Pore Space: Enabling Carbon Capture And Sequestration By Reconceptualizing Subsurface Property Rights, James Robert Zadick

William & Mary Environmental Law and Policy Review

No abstract provided.

Legitimate Exercises Of The Police Power Or Compensable Takings: Courts May Recognize Private Property Rights, Terence J. Centner

Journal of Food Law & Policy

Under their police power, governments regulate nuisances and take actions in emergency situations. For protecting humans, animals, and plants from diseases and other pests (jointly referred to as diseases), governments order inoculations, quarantine items and people, and seize and destroy property.' With respect to plants and animals, the United States Secretary of Agriculture is authorized to prohibit the importation and movement of items than may be infested. The Secretary also has the authority to hold, treat, and destroy items to prevent the dissemination of plant and animal pests. State governments take additional actions to prevent the introduction and dissemination of …

Property's Morale, Nestor M. Davidson

Michigan Law Review

A foundational argument long invoked to justify stable property rights is that property law must protect settled expectations. Respect for expectations unites otherwise disparate strands of property theory focused on ex ante incentives, individual identity, and community. It also privileges resistance to legal transitions that transgress reliance interests. When changes in law unsettle expectations, such changes are thought to generate disincentives that Frank Michelman famously labeled "demoralization costs." Although rarely approached in these terms, arguments for legal certainty reflect underlying psychological assumptions about how people contemplate property rights when choosing whether and how to work, invest, create, bolster identity, join …

No Room For Squatters: Alaska’S Adverse Possession Law, Jennie Morawetz

Alaska Law Review

In 2003, the Alaska Legislature dramatically changed Alaska’s adverse possession law. Alaska’s new law curtails the application of adverse possession in a way that is more stringent than any other state’s law. This Note summarizes Alaska’s adverse possession law prior to 2003 and discusses how it was changed in 2003 by the passage of Senate Bill 93. The Note then explores some implications of the new law: the ability to extinguish but not create private easements by prescription, the importance of recording, and the potential for a “good faith squatter” to lose land she believes is hers.

Summary Of Chateau Vegas Wine, Inc. V. S. Wine & Spirits, 127 Nev. Adv. Op. 73, Richard A. Andrews

Nevada Supreme Court Summaries

The Court considered an appeal from a district court order granting a permanent injunction in a business tort action.

Unclaimed Property And Due Process: Justifying 'Revenue-Raising' Modern Escheat, Teagan J. Gregory

Michigan Law Review

States have long claimed the right to take custody of presumably abandoned property and hold it for the benefit of the true owner under the doctrine of escheat. In the face of increasing fiscal challenges, states have worked to increase their collection of unclaimed property via new escheat legislation that appears to bear little or no relation to protecting the interests of owners. Holders of unclaimed property have raised substantive due process challenges in response to these modern escheat statutes. This Note contends that two categories of these disputed laws-those shortening dormancy periods and those allowing states to estimate a …

The Accession Insight And Patent Infringement Remedies, Peter Lee

Michigan Law Review

What is the appropriate allocation of rights and obligations when one party, without authorization, substantially improves the property of another? According to the doctrine of accession, a good faith improver may take title to such improved property, subject to compensating the original owner for the value of the source materials. While shifting title to a converter seems like a remarkable remedy, this outcome merely underscores the equitable nature of accession, which aims for fair allocation of property rights and compensation between two parties who both have plausible claims to an improved asset. This Article draws upon accession-a physical property doctrine …

Summary Of Walters V. Dist. Ct., 127 Nev. Adv. Op. 66, William Habdas

Nevada Supreme Court Summaries

The Court reviewed a petition for a writ of mandamus or prohibition. The issue was whether a counterclaim, cross-claim, and written motion setting the grounds for the application and the relief sought satisfied the requirements of NRS Chapter 40 for seeking a deficiency judgment upon a breach of guaranty.

Summary Of G.C. Wallace, Inc. V. Dist. Ct., 126 Nev. Adv. Op. 64, Alan Miller

Nevada Supreme Court Summaries

The Court examined a petition for a writ of mandamus challenging the district court's jurisdiction on grounds that a failure to raise the issue of damages in a summary eviction proceeding in justice court precluded a landlord from subsequently seeking damages in district court.

Community Collateral Damage: A Question Of Priorities, Andrea Boyack

Faculty Publications

Today’s soaring mortgage default rate and the uncertainty and delay associated with mortgage foreclosure proceedings threatens to cause financial tragedies of the commons in condominiums and homeowner associations across the country. Assessment defaults in privately governed communities result in an inequitable allocation of upkeep costs, and current law provides no way to prevent this spillover effect. But the collateral damages caused by delayed foreclosures and insufficient recoveries can be minimized by gradually increasing the priority position of the association lien.

In a majority of states, association liens are completely subordinate to the first mortgage lien. At foreclosure of the mortgage …

The People's Court, Kermit J. Lind

Law Faculty Articles and Essays

The Cleveland Housing Court adjudicates only one house and one owner at a time, while the investors and speculators in blighted properties operate in secret at high volume from a distance. However, the court's focus on housing code compliance and its (when needed) willingness to hand down strong measures is powerful. Even now, the City of Cleveland is implementing new strategic code compliance measures in partnership with neighborhood-based community development corporations, to the point where there is less profit in owning worthless houses in Cleveland, and the court is redirecting the disposal of low-value foreclosed houses to local land banks …

Property Law—Homestead Exemption—A Beneficiary Interest Can Support A Homestead Exemption In Arkansas And A Look At Other Interests Sufficient To Support A Homestead Exemption. Fitton V. Bank Of Little Rock, 2010 Ark. 280, __ S.W.3d __., Seth Williams

University of Arkansas at Little Rock Law Review

No abstract provided.