Property Law and Real Estate Commons^™

The Public Trust Doctrine And The Great Lakes Shores, Kenneth K. Kilbert

Cleveland State Law Review

The shores of the Great Lakes may look serene, but they are a battleground. Members of the public enjoy using the shores for fishing, boating, birding, or simply strolling along and taking in the scenic vistas. Repeatedly, however, owners of land ordering the Great Lakes (i.e., littoral owners),' armed with deeds indicating they own the shore to the water's edge or even lower, have tried to stop members of the public from using their property above the water's edge. The right to exclude others from your property, the littoral owners argue, is one of the most important sticks in the …

The Wholesale Decommissioning Of Vacant Urban Neighborhoods: Smart Decline, Public-Purpose Takings, And The Legality Of Shrinking Cities, Ben Beckman

Cleveland State Law Review

This Note is principally concerned with those takings that arise from the State's exercise of eminent domain, either directly or through the State's designee. To put a finer point on it, this Note addresses the distinction that property-rights advocates have developed to delegitimize certain types of takings. This distinction divides condemnations into disfavored-yet-legitimate takings-the direct-government-use and common-carrier takings-and ostensibly illegitimate public-purpose takings. The property-rights movement unequivocally places economic-development takings in the illegitimate category. The status of blight-remediation takings is ambiguous but tends toward legitimacy.

Social Justice In The Surrogate's Courts, Margaret Valentine Turano

Journal of Civil Rights and Economic Development

(Excerpt)

When the Journal of Civil Rights and Economic Development put out a call to the St. John's faculty for papers for this symposium, I knew I wanted to participate. How interesting, I thought, to view our respective disciplines through the lens of racial, social and economic justice. My area of expertise is Trusts & Estates, and at first blush the link between Trusts & Estates and social justice may seem attenuated, but the Surrogate's Courts are always abuzz with fiduciary issues, where one person is entrusted to safeguard another's interests, and in that context issues of social justice bubble …

Is It All About The Money? Considering A Multi-Factor Test For Determining The Appropriateness Of Forced Partition Sales In North Carolina, Lawrence Anderson Moye Iv

Campbell Law Review

This Comment examines partition sales in North Carolina. First is a brief review of tenancy in common ownership and the dissolution remedy of partition. This is followed by a more detailed look into North Carolina's current partition sales statute and recent efforts to amend it. Arguments favoring and opposing the addition of a multi-factor test to the current statute will be discussed, as well as case analysis from three states whose courts consider non-economic factors when determining the appropriateness of ordering a partition sale. The conclusion critiques the arguments for and against the addition of a multi-factor test, and also …

Intent And Empirics: Race To The Subprime, Carol N. Brown

Law Faculty Publications

The United States’ history of racially discriminatory banking, housing, and property policies created a community of black Americans accustomed to exploitative financial services and vulnerable to victimization by subprime lenders. My thesis is that black borrowers are experiencing a new iteration of intentional housing discrimination in the twentieth and twenty-first centuries; lenders identified a vulnerable 'emerging market' of black homeowners and borrowers and knowingly targeted them to receive subprime or predatory loan products when equally situated white borrowers were given superior, prime mortgage products. This Article explores how disparate lending practices coupled with banking deregulation undermined the Congressional push for …

Pendaftaran Hakmilik Tanah Selepas Tsunami Di Banda Aceh : Isu-Isu Yang Berbangkit Berkenaan Perlindungan Hakmilik., Afifuddin Manan

Student Works (2010-2019)

The earthquake and tsunami disaster that hit Acheh on December 24, 2004 had destroyed most of the records and files on land ownership. The disaster had created difficulties and brought about various conflicts in land administration and ownership. This dissertation aims to examine the procedure and legality of registration and the responsibility of the state in the protection of land ownership in the post tsunami era. The research revealed general problems relating to the protection of ownership of land post-tsunami, which include antinomy of law and improper actions of land registration officers. The antinomy of law and improper acts of …

Pemakaian Peraturan-Peraturan Kumpulan Wang Simpanan Pekerja (Kwsp) 2001 Dalam Tuntutan Dan Agihan Harta Tanpa Penamaan : Pelaksanaannya Di Kwsp Kuala Lumpur., Siti Fatimah Azzura Mohd Yusof

Student Works (2010-2019)

This research generally examines the concept of property without nomination and its administration in Malaysia. In order to examine the administration of the property, the Employees Provident Fund (EPF) institution was selected. The main discussion of this research focuses on the EPF claim application and its distribution aspects. Both of the aspects are stated in the EPF Regulations 2001. Furthermore this research is concentrated on the administrative issues of the claim and distribution of the property. This qualitative research had used methods of library research, documentation, sampling (Purposive Sampling) and interviewing in the collection of the data. In analyzing the …

Isu-Isu Dalam Kes Harta Sepencarian Di Mahkamah Syariah Singapura : Satu Analisis., Idham Halid Romli

Student Works (2010-2019)

This study discusses the issues of harta sepencarian (jointly-accumulated wealth) in the Syariah Court of Singapore. The objectives of this study are to examine the meaning and interpretation of harta sepencarian, and the influence of direct and indirect contributions in determining the amount received by the husband and wife from the harta sepencarian. Although the AMLA has provided general guidelines and interpretation on the factors which need to be taken into consideration when determining the distribution of harta sepencarian, but these guidelines do not distinguish between the main and supporting factors. Through literature studies, case-studies of Court cases and interviews, …

Clarifying Cultural Property, Kristen A. Carpenter, Sonia K. Katyal, Angela R. Riley

Publications

Author Stephenie Meyer forever altered the cultural existence of Quileute Indians when she wrote them into her Twilight novels. Now a veritable global phenomenon complete with books, movies, and affiliated merchandise, the Twilight series depicts young, male members of the tribe as vampire-fighting werewolves who ferociously defend a peace and territorial treaty made with local bloodsuckers. In reality, the Quileute Tribe consists of approximately 700 Indians, many of whom live on a remote reservation in the Pacific Northwest, a tiny parcel of the once vast Quileute territory. Since Twilight's unprecedented international success, the Quileute have been overwhelmed with fans …

Cases, Materials And Problems In Property (Third Edition), Richard H. Chused

Books

This casebook raises interesting and challenging problems concerning the development of property law. Property concepts are introduced through cutting edge issues, such as intellectual property, rights of publicity, and ownership rights in the human body. Historical dimensions are presented through discussions of laws which formerly excluded certain individuals from most forms of ownership and property control, such as Native Americans, African Americans, and women. The text covers traditional topics: estates in land, landlord and tenant laws, transfers of property, private land use controls, and constitutional limitations on public land use controls.

Why Lingle Is Half Right, Thomas W. Merrill

Faculty Scholarship

Lingle v. Chevron U.S.A. Inc. is a highly unusual decision in that it repudiated a legal doctrine that the Supreme Court itself had created. The Court was able to do this without overruling any prior decision because the repudiated doctrine-which condemned as a taking any regulation of property that fails to "substantially advance legitimate state interests" – had taken hold in the lower courts but had never been applied by the Court itself in support of a judgment. Lingle is also unusual in that there is no indication that the Court was motivated to jettison the doctrine because it was …

City Of New York V. Verizon New York, Inc., Michael T. Leigh

NYLS Law Review

No abstract provided.

Power Without Property, Still: Unger, Berle, And The Derivatives Revolution, Cristie Ford, Carol Liao

All Faculty Publications

This paper was produced for “In Berle’s Footsteps,” a symposium marking the launch of the Adolf A. Berle, Jr. Center on Corporations, Law and Society at the University of Seattle School of Law. It considers the light that the “derivatives revolution” sheds on the theoretical perspectives of Roberto Unger and Adolf Berle. While an unlikely pair, both Unger and Berle focused, in different ways, on the same issues: property, the power associated with property, and the impact of “smashing the atom” of traditional property rights. For Unger, breaking down consolidated property holding at the societal level was a pro-democratic move. …

Protecting The Good-Faith Tenant: Enforcing Retaliatory Eviction Laws By Broadening The Residential Tenant's Options In Summary Eviction Courts, Lauren A. Lindsey

Oklahoma Law Review

No abstract provided.

Maryland's Affordable Housing Land Trust Act, James J. Kelly Jr.

Journal Articles

On May 20, 2010, Maryland’s governor, Martin O’Malley, signed the Affordable Housing Land Trust Act (AHLT Act) into law. Its enactment marked the culmination of six years of advocacy by the University of Baltimore Community Development Clinic and by the Maryland Asset Building and Community Development Network. The AHLT Act authorizes a new method of creating and sustaining permanently affordable homeownership. By using the affordable housing land trust agreements outlined in the legislation, Maryland nonprofits and governmental agencies may now enter into enforceable long-term agreements with publicly subsidized low- and moderate-income homeowners to ensure that their homes remain affordable to …

Unbundling Homeownership: Regional Reforms From The Inside Out, Nicole Stelle Garnett

Journal Articles

Two vexing puzzles plague American land use regulators. The first puzzle is how to protect property owners from harmful spillovers without unduly stifling land use diversity. The dominant forms of land use regulation in the United States - zoning and private covenants - rely on ex ante prohibitions. Yet, since local governments and private developers rarely can calibrate the level of regulation to residents’ true preferences, the costs imposed by these regulations tend to exceed the benefits of actual harm prevention. The result is the over-protection of property owners and, and, many would argue, a monotonous, sterile, inefficient, and inconvenient …

Privatopia In Distress: The Impact Of The Foreclosure Crisis On Homeowners’ Associations, Casey Perkins

Nevada Law Journal

Part I of this Note provides an introduction to HOAs, the foreclosure crisis, and the resulting recession that currently threaten many associations' financial stability. Part I begins with a discussion of the rise of common interest communities in the United States, as well as basic association functions. Following this historical introduction is a discussion of the foreclosure crisis and an overview of the severity of this crisis in Nevada.

Part II introduces the problems faced by HOAs across the country because of the foreclosure crisis. These problems fall into two general categories, budget shortfalls and physical deterioration of abandoned properties. …

First Principles For And Effective Federal Housing Policy, David Reiss

Faculty Scholarship

No abstract provided.

Entrenching Environmentalism, Christopher Serkin

Vanderbilt Law School Faculty Publications

This piece for the University of Chicago Law Review Symposium: Reassessing the State and Local Government Toolkit, examines how local governments can use private law mechanisms to entrench policy in ways that circumvent typical legal limitations. The piece examines in detail a specific example of a town donating conservation easements over property it owns to a third-party not-for-profit conservation organization in order ensure that the property would not be developed in the future. This is nearly the functional equivalent of passing an unrepealable zoning ordinance restricting development, something existing anti-entrenchment rules would never permit. The piece examines the costs and …

You Can Have It, But Can You Hold It?: Treating Domain Names As Tangible Property, Daniel Hancock

Kentucky Law Journal

No abstract provided.

The Third Time Is Not Always A Charm: The Troublesome Legacy Of A Dutch Art Dealer-The Limitation And Act Of State Defenses In Looted Art Cases, Bert Demarsin

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Structural Causes Of Mortgage Fraud, Jim Smith

Scholarly Works

Mortgage fraud, often a violation of federal and state criminal statutes, covers a number of different types of behavior, all of which have the common denominator of conduct that has the intent or effect of impairing the value of residential mortgage loans. Mortgage fraud has become prevalent over the past decade and shows no signs of diminishing despite the collapse of domestic housing markets during the past two years. This paper analyzes the complex relationships between prime mortgage loan markets, subprime markets, and various types of mortgage fraud. This paper concludes that the root causes of mortgage fraud are associated …

The Social-Obligation Norm Of Property: Duguit, Hayem, And Others, M C. Mirow

Faculty Publications

This article discusses and analyzes the sources and methods used by Leon Duguit in constructing the social-obligation or social-function norm of property as set out in an influential series of lectures in Buenos Aires published in 1912. The work of Henri Hayem has been underappreciated in the development of Duguit's ideas. Hayem should be restored as a central influence on Duguit's thought and as one of the main and earliest proponents of the idea of the social-function norm. The article also examines the influence of Charmont, Comte, Durkheim, Gide, Hauriou, Landry, and Saleilles in Duguit's thought on property and its …

Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, And Costs Lives (Introduction), Michael A. Heller

Faculty Scholarship

Twenty-five new runways would eliminate most air travel delays in America; fifty patent owners are blocking a major drug company from creating a cancer cure; 90 percent of our broadcast spectrum sits idle while American cell phone service suffers. These problems have solutions that can jump-start innovation and help save our troubled economy. So, what's holding us back?

Book Review Of The Law Of The Land: The Advent Of The Torrens System In Canada, By Greg Taylor (Toronto: Osgoode Society For Canadian Legal History, 2008), Douglas C. Harris

All Faculty Publications

Systems for recording interests in land are not the subject of much public interest or concern in Canada. Occasionally a sympathetic victim of egregious fraud receives some media attention, but generally the land system operates quietly in the background. This has not always been so, and Greg Taylor's history of Torrens or title registration in Canada reveals a nineteenth century during which the merits and limitations of the common law, deeds registration, and title registration systems were vigorously and publicly debated. Eventually, title registration based on a model first developed in South Australia would prevail in the provinces and territories …

Stop The Beach Renourishment Stops Private Beachowners' Right To Exclude The Public, Kristen G. Juras, Sydney F. Ansbacher, Robert K. Lincoln

Faculty Law Review Articles

In this article, the authors examine the various measures implemented by state and local governments to enhance public access to and use of government-owned tidelands, streambeds, and lake shores and how, although not necessarily titled as such, many of these measures result, without payment of compensation, in an easement allowing public access to and use of private waterfront property.

Section I describes the rights of riparian property owners and the right of the public to use government-owned shores and tidelands, followed by a general overview of various state legislative and judicial responses designed to address the conflicts that arise when …

Single Asset Real Estate And Development Projects: The Kara Homes Mistake, Marshall E. Tracht

Articles & Chapters

The Kara Homes decision held that various affiliates of Kara Homes, Inc., each of which owned a separate real estate project, were "single asset real estate" ("SARE'') cases under the Bankruptcy Code's definition. According to the author of this article, the designation as single asset real estate substantially increased the difficulty faced by the debtors in maintaining their reorganization efforts, and has given lenders and their counsel a significant amount of comfort. However, the definition runs against the actual wording of the Bankruptcy Code, the intent underlying the SARE provisions, and the political winds. It should, and may well, be …

Forced Eviction And Resettlement In Cambodia: Case Studies From Phnom Penh, Chi Adanna Mgbako, Rijie Ernie Gao, Elizabeth Joynes, Anna Cave, Jessica Mikhailevich

Faculty Scholarship

This Article culminates a project undertaken by the Walter Leitner International Human Rights Clinic (“Leitner Clinic”) at Fordham Law School to examine the effects of land resettlement on communities that were forcibly evicted or are at risk of forced eviction from their homes, and, in particular, the effects of forced evictions on the Boeung Kak Lake community in central Phnom Penh and on people living with HIV/AIDS (“PLWHA”). This Article is based on field research the Leitner Clinic conducted in Cambodia in the fall of 2008. While in Cambodia, the Leitner Clinic interviewed families from four different communities: resettlement camps …

The Constructive Trust In Singapore: Five Persistent Puzzles, Hang Wu Tang

Research Collection Yong Pung How School Of Law

This paper investigates some persistent difficulties surrounding the constructive trust. The five persistent puzzles relating to the constructive trust that are considered in this paper are: the terminology puzzle, the institutional and remedial puzzle, the explanatory puzzle, the bankruptcy puzzle and the Torrens puzzle. It is the author’s thesis that these five enduring puzzles must be addressed and ultimately unravelled in order to ensure the coherent development of the law in this area.

A Non-Fatal Collision: Where Religious Land Uses And Community Interests Meet, Adam J. Macleod

Scholarly Articles

This paper grapples with the question how best to interpret the Religious Land Use and Institutionalized Persons Act, which creates a prophylactic remedy in favor of religious land users burdened by local land use regulations. Where the burden on religious exercise is substantial, RLUIPA subjects the regulation to strict scrutiny review. Several scholars object to RLUIPA on the grounds that it violates principles of federalism and equality between religious and non-religious landowners. Other scholars make the case for an expansive RLUIPA on the ground that the First Amendment privileges religious exercise over other types of land use.

This article first …