Property Law and Real Estate Commons^™

Rethinking Adverse Possession: An Essay On Ownership And Possession, Carol N. Brown

Law Faculty Publications

In the wake of the present real estate crisis, there has been prolonged discussion of the wrongdoing that led to systemic failures in the national real estate market. The mortgage crisis caught the nation’s attention because of its large scale and its rippling effect throughout the economy. Equally nefarious is the impact of adverse possession on the rights of individual property owners. While a single adverse possession does not affect the national market in the same way as the mortgage crisis did, to the individual owner, the wrongdoing, in the form of a trespass, that ripens into title, is just …

Women And Subprime Lending: An Essay Advocating Self-Regulation Of The Mortgage Lending Industry,Symposium On Law As Transformative Agent: Thinking And Doing Law In New Categories, Carol N. Brown

Law Faculty Publications

The subsequent national mortgage foreclosure crisis that seemed almost 5 uncontrollable by 2007 ignited a mortgage-related financial crisis that affected the global market place. News media, business reports, government investigations, 6 regulatory inquiries, and citizen suits focused national attention on the housing crisis and the problems attending what soon came to be known as the “mortgage meltdown.” A dual mortgage market had emerged in which subprime lending 7 disproportionately affected minorities (particularly blacks and Hispanics), women, and the elderly.8 Evidence of the disparate impact felt by certain minority borrowers is abundant and the evidence of gender disparities in subprime lending …

A Post-Carcieri Vocabulary Exercise: What If "Now" Really Means "Then"?, Heidi M. Staudenmaier, Ruth K. Khalsa

UNLV Gaming Law Journal

When the Indian Reorganization Act1 (“IRA”) was passed in 1934, it officially defined an “Indian” as a member of a recognized tribe “now under federal jurisdiction.” For nearly three-quarters of a century, this definition of an Indian and an Indian tribe — hallmarked by the four-word phrase “now under federal jurisdiction” — guided federal policy and agency action on a host of matters, including management of federal lands, land-into-trust acquisitions made on behalf of tribes, and — after 1988 — application of the Indian Gaming Regulatory Act (“IGRA”).

In February 2009, however, the United States Supreme Court upended seventy-five years …

Native Hawaiians And The Ceded Lands Trust: Applying Self-Determination As An Alternative To The Equal Protection Analysis, R. Hōkūlei Lindsey

American Indian Law Review

No abstract provided.

Character Counts: The "Character Of The Government Action" In Regulatory Takings Actions, Michael Lewyn

Scholarly Works

No abstract provided.

Land Use And Water Supply, Susan Kelly, Joanne Hilton

Water Matters!

As New Mexico grows and develops, there is a continuing increase in water demand and the need to provide additional supplies. Recent studies estimate the current population of the State to be about two million people, and the population is expected to grow to approximately 3,400,000 by 2050. Regional water plans project water demands for 16 regions within New Mexico. The total projected new water use associated with population growth—the public water supply and associated commercial sectors, exclusive of agriculture, mining, or other industries—ranges from 280,000 to 380,000 acre-feet per year of new water supply needed in the next 40 …

Ending Surprise Liens On Real Property, Chad J. Pomeroy

Faculty Articles

Academics, lawmakers, and the general public have long believed that secret liens are problematic. In real property, these are liens that are not recorded in the real property filing system. Secret liens become especially problematic when they are enforced, despite their secrecy, against subsequent purchasers of the property. If the purchaser does not satisfy the lien by paying the underlying debt, the lien holder can foreclose on the property. One of the main purposes of having real property recording statutes was to avoid surprise liens (secret liens afforded priority over subsequent purchasers) and ensure that real estate purchasers and investors …

Forced Sale Risk: Class, Race, And The "Double Discount", Thomas W. Mitchell, Stephen Malpezzi, Richard K. Green

Faculty Scholarship

What impact does a forced sale have upon a property owner's wealth? And do certain characteristics of a property owner such as whether they are rich or poor or whether they are black or white, tend to affect the price yielded at a forced sale? This Article addresses arguments made by some courts and legal scholars who have claimed that certain types of forced sales result in wealth maximizing, economic efficiencies. The Article addresses such economic arguments by returning to first principles and reviewing the distinction between sales conducted under fair market value conditions and sales conducted under forced sale …

Property As/And Constitutional Settlement, Timothy Zick

Faculty Publications

No abstract provided.

No Tax For "Phantom Income": How Congress Failed To Encourage Responsible Housing Consumption With Its Recent Tax Legislation, Rue Toland

Chicago-Kent Law Review

In the midst of the recent housing crisis, Congress passed two key pieces of federal tax legislation in an attempt to stem the tide of foreclosures and prevent further economic collapse. These two bills, the Mortgage Forgiveness Debt Relief Act in 2007 and the Housing and Economic Recovery Act in 2008, both sought competing goals: lessening the harm to existing homeowners, and encouraging purchases by new homebuyers. However, neither bill adequately addressed one of the root causes of the housing crisis, namely homeowners obtaining mortgages that, for whatever reason, they could not afford. Indeed, the tax incentives these bills created …

Real Property, Linda S. Finley

Mercer Law Review

The survey period, from June 1, 2008 to May 31, 2009, has been a volatile period for attorneys who regularly practice in areas involving real estate. Each day the media is replete with stories involving the country's historic economic crisis, and the effects can be seen in Georgia neighborhoods and in resulting legislation. Given our point in history, the cases and legislation discussed in this Survey were chosen for their significance to real property law and to update attorneys who regularly or occasionally practice or render opinions regarding real estate law.

Zoning And Land Use Law, Dennis J. Webb Jr., Marcia Mccrory Ernst, Davené D. Walker, Kelley B. Gray

Mercer Law Review

This Article provides a succinct and practical analysis of the significant judicial decisions in the area of zoning and land use law handed down by Georgia appellate courts between June 1, 2008 and May 31, 2009. The cases surveyed fall primarily within five categories: (1) zoning; (2) condemnation; (3) nuisance and trespass; (4) easements and restrictive covenants; and (5) miscellaneous.

Public Use, Public Choice, And The Urban Growth Machine: Competing Political Economies Of Takings Law, Daniel A. Lyons

University of Michigan Journal of Law Reform

The Kelo decision has unleashed a tidal wave of legislative reforms ostensibly seeking to control eminent domain abuse. But as a policy matter, it is impossible to determine what limits should be placed upon local government without understanding how cities grow and develop, and how local governments make decisions to shape the communities over which they preside. This Article examines takings through two very different models of urban political economy: public choice theory and the quasi-Marxist Urban Growth Machine model. These models approach takings from diametrically opposite perspectives, and offer differing perspectives at the margin regarding proper and improper condemnations. …

Tax Issues In Real Estate Workouts, Peter J. Genz

William & Mary Annual Tax Conference

No abstract provided.

In Re The Estate Of Avonne Goss, 2008 P 05, (Blkft. Tr. Ct. App., Nov. 4, 2009), Blackfeet Appellate Court

Court Decisions

In the Blackfeet Tribal Court of Appeals the Court answered the question to whether the “Bill of Sale” of a home from Avonne Goss to Robbin Goss, for the sum of $1, constituted a valid legal document. The Court determined that the home will remain in full ownership of Robbin Goss and the Bill of Sale for $1 was a valid legal document.

Existing Uses And The Limits Of Land Use Regulations, Christopher Serkin

Vanderbilt Law School Faculty Publications

This Article identifies property law's special protection for existing uses, explores possible justifications for this protection, and argues that none can support the strong protection that existing uses currently enjoy. Various land use doctrines- from zoning to the vested rights doctrine to amortization rules for prior noncon- forming uses--assume that the government cannot eliminate existing uses without paying compensation. The Article asks whether this result is compelled either by constitutional rules or by normative considerations. Neither the Takings Clause nor the Due Process Clause requires this level of protection for existing uses. Norma- tively, many obvious-seeming justifications dissolve on closer …

Land Use And Zoning Law: The Current Lay Of The Land, Philip C. Strother, Matthew R. Farley

University of Richmond Law Review

No abstract provided.

Guest Commentary—Retain Solar Access In Code, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

Good news: The Denver City Council is poised to enact the first comprehensive update to the Denver zoning code in 53 years. This new code could put Denver in the forefront as a progressive planning city and could serve as a blueprint for communities throughout the nation. Bad news: While the new code’s context- and form-based approach may improve transportation efficiencies in some parts of the city, in other respects it represents a step backward for sustainability, specifically for solar access.

Summary Of Citizens For Cold Springs V. City Of Reno, 125 Nev. Adv. Op. No. 16, Kristopher Milicevic

Nevada Supreme Court Summaries

Appeal from a district court’s decision to grant the City of Reno’s motion to dismiss for a failure to state a claim. The question on appeal is whether the Citizens for Cold Springs had standing under NRS 268.668 to challenge a land annexation when they did not own the property being annexed.

Warren County, Kentucky - Equity Court Cases (Mss 137), Manuscripts & Folklife Archives

Manuscript Collection Finding Aids

Finding aid only for Manuscripts Collection 137. This collection contains the extant Equity Court cases for Warren County, Kentucky, from Case #1 (1802) to Case #1977 (1856). The cases are arranged in numerical order. Information in this finding aid includes: case number, plaintiff, defendant, date, number of documents related to the case and notes. To search this document, download it and then use the "Find" function. When searching for a name, it is suggested that you search only the surname. Please remember to search for variant spellings, as there are many in these early records.

Waste No Land: Property, Dignity And Growth In Urbanizing China, Eva M. Pils

Cornell Law Faculty Working Papers

The Chinese state does not allow rural collectives to sell land, but takes land from them and makes it available on the urban property market. While rural land rights are thus easily obliterated, the newly created urban rights in what used to be rural land enjoy legal protection. The state justifies these land takings by the need for urbanization and economic growth. The takings have resulted in an impressive contribution of the construction and property sector to state revenue and GDP growth, but also in unfairness toward peasants evicted from their land and homes. The example discussed here shows that …

Things Fall Apart: The Illegitimacy Of Property Rights In The Context Of Past Theft, Bernadette Atuahene

All Faculty Scholarship

In many states, past property theft is a volatile political issue that threatens to destabilize nascent democracies. How does a state avoid instability when past property theft causes a significant number of people to believe that the property distribution is illegitimate? To explore this question, I first define legitimacy relying on an empirical understanding of the concept. Second, I establish the relationship between inequality, illegitimate property distribution, and instability. Third, I describe the three ways a state can achieve stability when faced with an illegitimate property distribution: by using its coercive powers, by attempting to change people’s beliefs about the …

Fraud Is Fun: Or How A Foreclosure Rescue Scam Changed My Life, Peter A. Holland

Faculty Scholarship

No abstract provided.

Effective And Constitutional: Goals For A Hurricane Response Plan In The Aftermath Of Hurricanes Katrina And Rita, Neal Mchenry

Indiana Law Journal

No abstract provided.

Cryopreserved Embryos As America's Prospective Adoptees: Are Couples Truly "Adopting" Or Merely Transferring Property Rights?, Alexia M. Baiman

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Solar Rights, Sara C. Bronin

Cornell Law Faculty Publications

The rights to access and to harness the rays of the sun - solar rights - are extremely valuable. These rights can determine whether and how an individual can take advantage of the sun’s light, warmth, or energy, and they can have significant economic consequences. Accordingly, for at least two thousand years, people have attempted to assign solar rights in a fair and efficient manner. In the United States, attempts to assign solar rights have fallen short. A quarter century ago, numerous American legal scholars debated this deficiency. They agreed that this country lacked a coherent legal framework for the …

Private Norms And Public Spaces, Nicole Stelle Garnett

William & Mary Bill of Rights Journal

Presented at the 2008 Brigham-Kanner Property Rights Conference.

Ellickson's Extraordinary Look At The Ordinary, Henry E. Smith

William & Mary Bill of Rights Journal

Presented at the 2008 Brigham-Kanner Property Rights Conference.

Pierson V. Post: The New Learning, Daniel R. Ernst

Georgetown Law Faculty Publications and Other Works

Pierson v. Post, 3 Caines 175 (N.Y. 1805), one of the most commonly assigned cases in the first-year Property course, was a dispute over the ownership of a fox discovered at large “upon a certain wild and uninhabited, unpossessed and waste land, called the beach.” For a very long time, all that was known about the case, other than the report itself, was a vivid but antiquarian account published in the Sag Harbor Express of October 24, 1895, by the judge and local historian Henry Parsons Hedges (1817-1911). Hedges claimed to have met Jesse Pierson (1780-1840) and Lodowick Post …

Scaling Property With Professor Ellickson, Lee Anne Fennell

William & Mary Bill of Rights Journal

Presented at the 2008 Brigham-Kanner Property Rights Conference.