Property Law and Real Estate Commons^™

Zoning’S Centennial: A Complete Account Of The Evolution Of Zoning Into A Robust System Of Land Use Law—1916-2016 (Part Ii), John R. Nolon

Elisabeth Haub School of Law Faculty Publications

The idea that local land use law can intelligently shape settlement patterns was not a familiar concept in the late 1960s when the Town of Ramapo, New York adopted an ordinance that delayed development permits until the Town could provide needed infrastructure. Ramapo was experiencing unprecedented growth as one of the closest northern suburbs of New York City. Developers, who in some cases had to wait years for services to their land, sued; they argued that these phased development controls were intended to prohibit subdivisions and restrict population growth, which is not authorized under the state’s zoning enabling legislation.

New …

Optimal Property Rights For Emerging Natural Resources: A Case Study On Owning Atmospheric Moisture, Jianlin Chen

University of Michigan Journal of Law Reform

This Article critically examines the design of property rights for emerging natural resources—naturally occurring substances that humans have only recently come to be able to exploit viably—through a case study of how the fifty states allocate ownership in, and regulate the use of, atmospheric moisture, an issue that has emerged in the context of weather modification (particularly cloud seeding). Building on the surprising finding that legislative declarations of state ownership have not resulted in greater regulatory control or other substantial restrictions on private use, this Article highlights a dimension of property rights design that has yet to receive concerted scholarly …

Restoring Hope For Heirs Property Owners: The Uniform Partition Of Heirs Property Act, Thomas W. Mitchell

Faculty Scholarship

For well over 125 years, many Americans have lost their tenancy-in-common property involuntarily in various legal proceedings. For example, courts throughout this country have often resolved partition actions, a legal proceeding in which a tenant in common seeks to exit a tenancy in common, by ordering a forced, partition sale of the property even when these courts could have ordered a remedy that would have preserved the property rights of the tenants in common. Though partition sales have negatively impacted a broad cross section of people in this country, the sales have particularly impacted poor and disadvantaged African-Americans, Hispanics, white …

Realigning The Governmental/Proprietary Distinction In Municipal Law, Hugh D. Spitzer

Seattle University Law Review

Lawyers and judges who deal with municipal law are perpetually puzzled by the distinction between “governmental” and “proprietary” powers of local governments. The distinction is murky, inconsistent between jurisdictions, inconsistent within jurisdictions, and of limited use in predicting how courts will rule. Critics have launched convincing attacks on the division of municipal powers into these two categories. Most articles have focused on problems with the distinction in specific areas of municipal law. In contrast, this article provides a comprehensive analysis of the governmental/proprietary distinction in seven specific doctrinal areas: legislative grants of municipal authority, government contracts, torts, eminent domain, adverse …

Fixing A Broken Common Law -- Has The Property Law Of Easements And Covenants Been Reformed By A Restatement?, Ronald H. Rosenberg

Florida State University Law Review

No abstract provided.

A New American Dream For Detroit, Andrea Boyack

Faculty Publications

The problem of neighborhood deterioration is keenly visible in Detroit today, but Detroit’s housing struggles are not unique. Like most of America, the Detroit metropolitan area is racially fragmented, and minority neighborhoods are the most likely to be impoverished and failing. Detroit’s problems of housing abandonment and neighborhood decay are both caused and exacerbated by decades of housing segregation and inequality. The “American Dream” has always been one of equal opportunity, but there can be no equality of opportunity when there is such stark inequality among home environments. Detroit’s neighborhood decline is a symptom of the city’s population loss and …

Zoning’S Centennial: A Complete Account Of The Evolution Of Zoning Into A Robust System Of Land Use Law—1916-2016 (Part I), John R. Nolon

Elisabeth Haub School of Law Faculty Publications

2016 is the 100th anniversary of the adoption of the first citywide comprehensive zoning law. Its original purpose was to create districts that separated incompatible land uses and building types in order to protect property values and promote the health, safety, and welfare of the community. 100 years later, zoning is used to achieve an impressive number of public objectives such as permitting transit oriented development, creating green infrastructure, preserving habitat, species, and wetlands, promoting renewable energy facilities, reducing vehicle miles traveled, and preserving the sequestering landscape.

Fixing A Broken Common Law -- Has The Property Law Of Easements And Covenants Been Reformed By A Restatement, Ronald H. Rosenberg

Faculty Publications

No abstract provided.

2016 Trying Times: Important Lessons To Be Learned From Recent Federal Tax Cases, Nancy Mclaughlin

Utah Law Faculty Scholarship

Since 2005, the courts have collectively issued more than 80 opinions involving challenges to deductions claimed under IRC § 170(h) with regard to conservation and facade easement donations. This outline provides a brief history of developments in the deduction context, discusses the practical implications of the recent court decisions, and offers advice on how to file a tax return package to minimize the risk of audit. It also briefly notes various other important issues, such as the IRS's focus on valuation and syndicated deals, quid pro quo, and reserved development rights.

An Evolution Of Tradition: Understanding The Unintended Effects Of The 1999 Inheritance And Marital Property Law On Intra-Family Relationships In Rwanda., Pete Freeman

Independent Study Project (ISP) Collection

In the months following the 1994 genocide in Rwanda, a disproportionate number of Rwandan women were left without husbands, homes, family, or property. These losses required women to take on cultural responsibilities hitherto reserved for men. One roadblock to assuming these responsibilities was the legal and cultural right of property ownership reserved exclusively for men. Then in 1999, the Rwandan government enacted legislation which allowed women and girls the rights to family property -- Law/nº 22/99 of 12/11/1999 on Matrimonial Regimes, Liberalities, and Successions. On paper, this Rwandan policy seemed like a step toward gender equality, a watershed moment in …

Contract And Property Law—Fee-Shifting Statutes And Landlord-Tenant Law—A Call For The Repeal Of The English Rule "Loser Pays" System Regarding Contract Disputes And Its Effect On Low-Income Arkansas Tenants, Stephanie Mantell

University of Arkansas at Little Rock Law Review

No abstract provided.

The Doctrine Of Lost Modern Grant And Prescriptive Easements In Newfoundland, Greg French

Dalhousie Law Journal

This article examines the history and development of prescriptive easements in Newfoundland and Labrador and the legal standards required to find such an easement to exist. The article concludes that the appropriate inquiry is not merely an examination of the length of use, but also the nature and extent of use, and that rigid application of timelines should not apply.

Evolving Water Law And Management In The U.S.: Montana, Irma S. Russell

Faculty Works

The availability of water or the lack thereof has influenced the evolution of each state and the laws of each state. The development of water law naturally grew from the realities of water and other resources in different areas of the country and the need for water for industry, agriculture, and other enterprises. The evolution and development of water management in Montana provide a good example of water management in the western United States. From the beginnings of Montana and of the West as a region, water sat at the top of the list of essentials for human occupancy and …

An Empirical Study Of Implicit Takings, James E. Krier, Stewart E. Sterk

William & Mary Law Review

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law “on the ground”—in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions over the period 1979 through 2012, attempts to fill that void.

This study establishes that the Supreme Court’s categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action other …

An Empirical Study Of Implicit Takings., James E. Krier, Stewart E. Sterk

Articles

Takings scholarship has long focused on the niceties of Supreme Court doctrine, while ignoring the operation of takings law "on the ground" in the state and lower federal courts, which together decide the vast bulk of all takings cases. This study, based primarily on an empirical analysis of more than 2000 reported decisions ovcr the period 1979 through 2012, attempts to fill that void. This study establishes that the Supreme Court's categorical rules govern almost no state takings cases, and that takings claims based on government regulation almost invariably fail. By contrast, when takings claims arise out of government action …

Response Brief Of Appellee Navajo Nation, Paul Spruhan

Faculty Scholarship

This appeal concerns the claimed authority of private utility companies to unilaterally force an easement over allotments that include a sovereign Indian nation among its owners. The four certified questions before the Court implicate congressional policy concerning allotments as well as the sovereign interests of the Navajo Nation (“Nation”). Appellants PNM and Transwestern assert that 25 U.S.C. § 357 (Section 357) applies beyond allotments wholly owned by individual allottees to also allow condemnation of the allotment interests of sovereign tribal nations. However, as discussed below, the application of Section 357 to a tribal nation’s property would unduly impair a tribal …

Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen Henderson

Other Faculty Publications

Chairman Barrington, Vice Chair Brooks, members of the Committee on Public Safety, Senators, and distinguished guests, I am grateful for the opportunity to speak to you today about unmanned aerial systems, or drones, and more particularly about their federal constitutional implications and what might be the constitutional restrictions on any legislation you might like to enact. I am the Judge Haskell A. Holloman Professor of Law at the University of Oklahoma, where my teaching and research focus on criminal law and procedure and privacy, including the constitutional rights pertaining thereto.My topic is not an easy one. The constitutional law is …

Anti-Social Behaviour, Expulsion From Condominium, And The Reconstruction Of Ownership, Douglas C. Harris

Osgoode Hall Law Journal

Statutory condominium regimes facilitate massive increases in the density of owners. The courts are responding to this spatial reorganization of ownership by reconstructing what it means to be the owner of an interest in land. This article analyzes the ten cases over eight years (from 2008 to 2015) in which Canadian courts grant eviction and sale orders against owners within condominium for anti-social behaviour. The expulsion orders are new. Until these cases, ownership within condominium in Canadian common law jurisdictions was thought to be as robust as ownership outside condominium such that owners could not be expelled from condominium for …

Bank Of Nevada V. Petersen, 132 Nev. Adv. Op. 64 (Aug. 12, 2016), Kristopher Kalkowski

Nevada Supreme Court Summaries

No abstract provided.

Shhh: Eighth Circuit Puts Conservationists Intervenor To Bed In Quiet Title Action In North Dakota Ex Rel. Stenehjem V. United States, Matthew K. Arnold

Villanova Environmental Law Journal (1991 - )

No abstract provided.