Property Law and Real Estate Commons^™

Solar Rights For Texas Property Owners, Sara Bronin

Faculty Articles and Papers

In response to Jamie France's note, "A Proposed Solar Access Law for the State of Texas," Professor Bronin urges future commentators to focus on three additional areas of inquiry related to proposed solar rights regimes. Bronin argues that such proposals would be strengthened by discussion of potential legal challenges to the proposals, related political issues, and renewable energy microgrids.Ms. France’s proposal for the State of Texas includes the elimination of preexisting private property restrictions that negatively affect solar access. Bronin argues that this proposal would be strengthened by a discussion of potential challenges under federal and state takings clauses. Additionally, …

Property In Law: Government Rights In Legal Innovations, Stephen Clowney

Law Faculty Scholarly Articles

One of the most enduring themes in American political thought is that competition between states encourages legal innovation. Despite the prominence of this story in the national ideology, there is growing anxiety that state and local governments innovate at a socially suboptimal rate. Academics have recently expressed alarm that the pace of legal experimentation has become "extraordinarily slow," "inefficient," and "less than ideal." Ordinary citizens, too, seem concerned that government has been leeched of imagination and the dynamic spirit of experimentation; both talk radio programs and newspapers remain jammed with complaints about legislative gridlock and do-nothing politicians who cannot, or …

The World Of Deadwood: Property Rights And The Search For Human Identity, Michael B. Kent Jr.

Scholarly Works

The year is 1876. Gold has been discovered in the fledgling camp of Deadwood, bringing hordes of new arrivals each day seeking to strike it rich. The allure of wealth is coupled with the allure of complete autonomy. There is no law. Although part of the United States, Deadwood is unaffiliated with any existing territorial government. It is free. Or is it? From this backdrop, HBO’s highly-acclaimed drama Deadwood springs forth. Series creator David Milch is frank about his mission behind the story: to explore how order arises from chaos. The assignment and protection of property rights play central roles …

The Due Process Rights Of Residential Tenants In Mortgage Foreclosure Cases., Henry Rose

Faculty Publications & Other Works

No abstract provided.

Sifting Through The Wreckage: An Analysis And Proposed Resolution Concerning The Disposition Of Historic Shipwrecks Located In International Waters, Jeremy Neil

NYLS Law Review

No abstract provided.

Melms V. Pabst Brewing Co. And The Doctrine Of Waste In American Property Law, Thomas W. Merrill

Faculty Scholarship

Melms v. Pabst Brewing Co. may be the most important decision ever rendered by an American court concerning the law of waste. Unless your specialty is property law, that might not be enough to stir your interest. The doctrine of waste, after all, does not loom very large in public consciousness these days.

Nevertheless, waste has held a peculiar fascination for property theorists. The reason, I think, is that it touches directly on an important line of division in how we think about property. Does property exist primarily to protect the subjective expectations that particular owners have in particular things? …

The Inauthentic Claim, Anthony J. Sebok

Vanderbilt Law Review

"It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." -Oliver Wendell Holmes'

This Article takes a critical look at the persistence of legal doctrines that prohibit or limit property rights in litigation. The Article focuses on prohibitions on assignment and maintenance. Assignment of personal injury tort claims is prohibited throughout the United States, while …

How United States V. Jones Can Restore Our Faith In The Fourth Amendment, Erica Goldberg

School of Law Faculty Publications

United States v. Jones, issued in January of this year, is a landmark case that has the potential to restore a property-based interpretation of the Fourth Amendment to prominence. In 1967, the Supreme Court abandoned its previous Fourth Amendment framework, which had viewed the prohibition on unreasonable searches in light of property and trespass laws, and replaced it with a rule protecting the public’s reasonable expectations of privacy. Although the Court may have intended this reasonable expectations test to provide more protection than a test rooted in property law, the new test in fact made the Justices’ subjective views about …

The Origin And Civil Law Foundation Of The Community Property System, Why California Adopted It And Why Community Property Principles Benefit Women, Caroline Bermeo Newcombe

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

New Mexico’S Major Reservoirs: An Overview, Susan Kelly, Diego Urbina

Water Matters!

This paper describes the salient facts about the major water storage reservoirs in New Mexico. For each reservoir, we address the purposes of water storage allowed by law, storage capacity, the responsible operating agency, and some key operational issues. This is by necessity a vast simplification of the topic.Books, articles, research reports, operation manuals, and other materials on these topics run into the hundreds. Millions of dollars have been spent on technical studies and computer models to understand,and sometimes alter, the operations of various dams and reservoirs.

Strategic Spillovers, Daniel B. Kelly

Journal Articles

The conventional problem with externalities is well known: Parties often generate harm as an unintended byproduct of using their property. This Article examines situations in which parties may generate harm purposely, in order to extract payments in exchange for desisting. Such “strategic spillovers” have received relatively little attention, but the problem is a perennial one. From the “livery stable scam” in Chicago to “pollution entrepreneurs” in China, parties may engage in externality-generating activities they otherwise would not have undertaken, or increase the level of harm given that they are engaging in such activities, to profit through bargaining or subsidies. This …

The Enforceability Of Exacted Conservation Easements, Jessica Owley

Articles

No abstract provided.

The Liability-Offset Theory Of Peracchi, Bradley T. Borden, Douglas Longhofer

Faculty Scholarship

No abstract provided.

Not In My Atlantic Yards: Examining Netroots’ Role In Eminent Domain Reform, Kate Klonick

Faculty Publications

(Excerpt)

Since the Supreme Court's decision in Kelo v. City of New London, which expanded the state's power to condemn private property and transfer it to other private owners under the Fifth Amendment, there have been significant calls to curb the power of eminent domain through statutory reform. Scholars and jurists in favor of eminent domain reform have asserted that legislation is needed to protect private property rights against the rising tide of state power, with many arguing that such reform should incorporate a public approval process into land use decisions. Those opposed to eminent-domain reform argue that empowering …

A Tale Of Two Citites: The Residential Landlord's Duty To Mitigate In New York, Jeremy N. Sheff

Faculty Publications

The past half century has seen sweeping changes to the legal regime applicable to the landlord-tenant relationship, particularly for residential properties. The ancient feudal conception of a lease as a present transfer of an interest in land has given way to a more modem understanding of leases as contracts between a provider of a package of goods and services and their consumer. Among the changes wrought by this conceptual shift has been the imposition of previously unknown obligations on landlords in the event of tenant abandonment. Called either the duty to mitigate or, perhaps more accurately, the avoidable consequences rule, …

Self Interested: Protecting The Cultural And Religious Privacy Of Native Americans Through The Promotion Of Property Rights In Biological Materials, Kimberly Self

American Indian Law Review

No abstract provided.

Origins Of The Social Function Of Property In Chile, M C. Mirow

Faculty Publications

In 1925, Chile was one of the first countries in Latin America to adopt a social-function limitation on property. This study traces the importance of Duguit’s work in the construction of the property provisions of the Chilean Constitution of 1925. This contribution notes the shift from the earlier expressions of property as an absolute right, as found in the Constitution of 1833, to the language of the Constitution of 1925 that submits property to “the maintenance and progress of the social order.” It tracks the debates in the drafting committees to expose the various concepts of property open to the …

Globalizing Conservation Easements: Private Law Approaches For International Environmental Protection, Gerald Korngold

Articles & Chapters

For the past thirty years nonprofit organizations have revolutionized open space and habitat conservation in the United States through the use of conservation easements. Pursuant to legislation, nonprofits may now acquire and hold perpetual restrictions that prevent alteration of the subject land’s natural and ecological features. These rights can be held “in gross,” with the result that the nonprofit need not own land near the restricted property and can be based in a distant location.

As a result of this success, proponents in more recent years have advocated the export of “conservation easements” from the United States to other countries. …

Oklahoma Landlords Beware: Miller V. David Grace, Inc. Abandons Caveat Emptor In Residential Leases, Jamie M. Powers

Oklahoma Law Review

No abstract provided.

The Proposed Texas Assignment Of Rents Act: A Legislative Escape From The Common Law Morass, Julia Patterson Forrester Rogers

Faculty Journal Articles and Book Chapters

When a loan is secured by a mortgage or deed of trust on an income-producing property, such as an office building, shopping center, or apartment complex, rents are a significant part of the security for the loan, in addition to the land and improvements.Rents provide the funds necessary to pay for operating and maintaining the mortgaged property and to make payments on the mortgage loan.After a default on the mortgage loan, a borrower, facing the possibility of losing the property to foreclosure, may apply rents to purposes unrelated to the property or the mortgage loan. The lender, on the other …

Changing Property In A Changing World: A Call For The End Of Perpetual Conservation Easements, Jessica Owley

Articles

No abstract provided.

Conservation Easements At The Climate Change Crossroads, Jessica Owley

Articles

No abstract provided.

The Law Of Abandonment And The Passing Of Property In Trash, Cheng Lim Saw

Research Collection Yong Pung How School Of Law

This article examines the law of abandonment – primarily in the context of rubbish disposal – from a comparative perspective. It will, in particular, consider whether the owner of moveable property can, in theory, divest himself of ownership rights therein by simply abandoning the chattel in question, and whether the common law recognises such a concept of (unilateral) divesting abandonment. Additionally, the article will examine how, if at all, the notion of abandonment – as it is understood and applied in relation to physical property – may also operate in the realm of intangible property.

The Rise And Fall Of The Implied Warranty Of Habitability, David A. Super

Georgetown Law Faculty Publications and Other Works

Growing concern about poverty in the late 1960s produced two sweeping legal revolutions. One gave welfare recipients rights against arbitrary eligibility rules and benefit terminations. The other gave low-income tenants recourse when landlords failed to repair their homes. The 1996 welfare law exposed the welfare rights revolution's frailty. Little noticed by legal scholars, the tenants' rights revolution also has failed, and for broadly similar reasons.

Withholding rent deliberately to challenge landlords' failure to repair is unduly risky for most tenants in ill-maintained dwellings: either moving to better housing is a better option or the risk of retaliation is too great. …

Law As Asymmetric Information: Theory, Application, And Results In The Context Of Foreign Direct Investment In Real Estate, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

In his seminal 1970 article on lemon markets, George Akerlof posited the possibility of market failure in the presence of asymmetric information regarding a good’s value. In the intervening four decades, the importance of accurate valuation information has grown as transnational trade has boomed. The aim of the instant article is to assess the potential impact on transnational trade of asymmetric information regarding the legal attributes of a given good. Inaccurate or asymmetric information regarding relevant legal attributes may give rise to the same problem of market failure that Akerlof initially posited. If buyers are unsure of the ownership of …

Resurrecting The Bogeyman: The Curious Forms Of The Substantial Burden Test In Rluipa, Adam J. Macleod

Scholarly Articles

In 2000 Congress revived strict scrutiny review of regulations that substantially burden religious land use when it enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA). Many worry that RLUIPA creates a blanket exemption for religious institutions from neutral laws of general application, and that it threatens principles of federalism. A decade of experience with RLUIPA shows that these fears are unfounded. Indeed, the United States Courts of Appeals have gone out of their way to constrain the reach of RLUIPA's substantial burden provision. They have imposed upon the provision some creative interpretations, many of which are inconsistent with …

Introduction To The Iachr Report On Indigenous And Tribal Peoples' Rights Over Their Ancestral Lands And Natural Resources: Norms And Jurisprudence Of The Inter-American Human Rights System, Taiawagi Helton

American Indian Law Review

No abstract provided.

This Land Is Your Land, This Land Is My Land? Why The Cobell Settlement Will Not Resolve Indian Land Fractionation, Jered T. Davidson

American Indian Law Review

No abstract provided.

Indigenous And Tribal Peoples' Rights Over Their Ancestral Lands And Natural Resources: Norms And Jurisprudence Of The Inter-American Human Rights System, Inter-American Commission On Human Rights

American Indian Law Review

No abstract provided.

Yours, Mine, Ours? Renovating The Antiquated Apartheid In The Law Of Property Division In Native American Divorce, Vickie Enis

American Indian Law Review

No abstract provided.