Property Law and Real Estate Commons^™

Exposing The Hocus Pocus Of Trusts, Kent D. Schenkel

Akron Law Review

Part II makes the conceptual case for viewing the trust as an elective cost-externalization device. Part III offers the spendthrift trust as the archetypal model for purposes of our analysis, briefly describes the spendthrift trust, and explores its consequences to outsiders to the trust deal. Part IV offers some reasons why the elective externalities of trusts persist. Part V first examines and rejects a couple of approaches to minimizing the externalized costs of trusts that rely on the “bundle of sticks” approach to property interests. It then moves beyond the bundle of sticks approach, settling on a solution based on …

Begone, Euclid!: Leasing Custom And Zoning Provision Engaging Retail Consumer Tastes And Technologies In Thriving Urban Centers, Michael N. Widener

Pace Law Review

Is urban center retailing in a death spiral? Competition for consumers with Internet vendors is afoot; winners and losers shall be anointed. The threats to physical retailing in an era of the “Internet of Goods” initially are described below. Adaptations by tenants, landlords, and stakeholders in urban centers will be required quickly, and new perspectives and partnerships, including those among local and regional governments, are instrumental if physical retail operations in municipal cores are to survive. The balance of this article describes these needs from the vantage point of each stakeholder; but this article argues that integrating information and communication …

Nature’S Law: The Evolutionary Origin Of Property Rights, Kathryn Loncarich

Pace Law Review

This article contributes to the outline of the origin of property rights set forth by Professor Krier, by more fully analyzing the role of evolutionary biology in the development of property rights. This article focuses on the pre-political formation of property ownership and the initial formation of concepts of property and ownership. Expanding on Krier’s analysis, this article considers the implications of this evolutionary foundation on our modern property regime, particularly given the growing chasm between the wealthy on one side and the poor and middle-class on the other.

Part II discusses the growing disparity of wealth in America and …

Heir Property In The African American Community: From Promised Lands To Problem Lands, Roy W. Copeland

Professional Agricultural Workers Journal

Abstract

African American landowners have been reluctant to take advantage of intergenerational succession laws which provide for an orderly transfer of property from one generation to the next. This reluctance has led to a prevalence of heir property. Heir property is created when a person dies intestate. Heir property has created an impediment to wealth accumulation and has contributed to African American land loss in America. Partition actions are a byproduct of heir property which has operated to accelerate the loss of real property in the African American community. The Uniform Partition of Heir Property Act provides for procedural safeguards …

The Governance Function Of Constitutional Property, Lynda L. Butler

Faculty Publications

Contemporary takings scholarship has devoted much attention to the problem of regulatory takings and has largely assumed that physical takings are resolved under a clear but simplistic per se rule. Under that rule, modern courts automatically find a physical taking whenever government action causes a permanent physical invasion of property, regardless of the context or the importance of the public interest. Applying this bright-line rule has proved to be difficult because it ignores the nuances of physical takings situations and the complexities of modern property arrangements. Should the physical takings concept apply to a rent control law that limits the …

The Relationship Between Self-Determination And Client Outcomes Among The Homeless, Samuel M. Hanna

Electronic Theses, Projects, and Dissertations

This paper has attempted to determine if there is a significant relationship between self-determination and client outcomes among the homeless. The study has been based upon the conceptual framework set forth in Self-Determination Theory. The purpose of the study was to explore the relationship between self-determination and client outcomes among the homeless. Using a data collection instrument, based on empirically validated instrumentation, clients from several homeless service providers in the City of San Bernardino were assessed for the level of self-determination and autonomy support they experience within these agencies. Outcome measures included such things as whether the client was going …

Of Property Rights And Rights To Property, James E. Krier

Articles

In 2004, President George W. Bush said, “I believe in private property so much, I want everyone in America to have some.” Much earlier, in 1948, an economics professor from the University of Texas expressed the same sentiment in strikingly similar terms. When asked by an investigatory committee of the Texas legislature whether he favored private property, he replied, “I do . . . and so strongly that I want everyone in Texas to have some.” Even putting aside the possibility that the President’s speechwriters found inspiration in an unacknowledged source, there are several interesting things to note about these …

Finding, Sharing And Risk Of Loss: Of Whales, Bees And Other Valuable Finds In Iceland, Denmark And Norway, William I. Miller, Helle Vogt

Articles

The focus of the paper is twofold: the first part is about how property rights were assigned and ranked in finds, both in those items such as bees, rings and other valuables which were previously owned, and also in those things, like whales, which were unowned. We focus on Icelandic, Danish and Norwegian laws from the twelfth and thirteenth centuries, yet most of the provisions were copied into later laws and were in force up until modern times, some even current now. The second part treats the question of how risks of loss were handled, and how simple forms of …

A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan

Michigan Journal of Environmental & Administrative Law

Our land use control system operates across a variety of multidimensional and dynamic categories. Learning to navigate within and between these categories requires an appreciation for their interconnected, dynamic, and textured components and an awareness of alternative mechanisms for achieving one’s land use control preferences and one’s desired ends. Whether seeking to minimize controls as a property owner or attempting to place controls on the land uses of another, one should take time to understand the full ecology of the system. This Article looks at four broad categories of control: (1) no controls, or the state of nature; (2) judicial …

Vendor’S Privilege: Adheret Visceribus Rei, L. David Cromwell

Louisiana Law Review

The article offers information on the vendor's privilege on the mortgage debt as stated by the Louisiana Supreme Court. Topics discussed include failure of timely transcription of the mortgage do not affect the vendor's privilege, effectiveness for failure of timely reinscription, and formulation of vendor's privilege law traces back to Code Napoléon.

Survey Of The Rights Of Receiverships To Sell Real Property, Baruch Kreiman

The Journal of Business, Entrepreneurship & the Law

The focus of this article is on the abilities of the receiver and the restrictions put on him regarding his management of the property-- specifically, whether the receiver has the ability to sell the land free and clear of all liens, and, if so, under what circumstances and by what method. Part II gives an overview of the article, discusses the structures of receivership statutes in various jurisdictions, and further discusses receivership sales. Part III analyzes the statutory frameworks and caselaw from a selection of jurisdictions with regards to their treatment of receiverships and focuses on sales made by the …

Judicial Treatment Of California’S Anti-Deficiency Legislation Section 580b: Is It Effective?, Cole F. Morgan

The Journal of Business, Entrepreneurship & the Law

Short sales of real property represent approximately a quarter of all homeowner transactions. Recently, short sales passed foreclosures as the preferred method in home sales due to the ease of sale. Coker v. JP Morgan Chase Bank, N.A., has ruled lenders of a purchase-money mortgage may not pursue a deficiency judgment after the short sale of a home. Essentially, this means after the sale is completed and the lender has obtained the proceeds from the sale, if there is a deficiency, they may not personally hold the borrower liable for the remaining debt of the mortgage. The ruling was established …

Aventura Management, Llc V. Spiaggia Ocean Condominium Association: Condominium Associations Beware, William C. Matthews

Florida Law Review

In late January 2013, the Third District Court of Appeal sent shockwaves throughout the real estate community with regards to condominium associations’ rights as unit owners. In AventuraManagement, LLC v. Spiaggia Ocean Condominium Association (Spiaggia), the appellate court interpreted Florida Statute § 718.1162 in an unprecedented way. The court held that if a condominium association takes title to a unit before the bank forecloses on a defaulting unit owner, the association is jointly and severally liable for all past due assessments with the previous owner that came due, up to the time of transfer of title.3 Condominium associations across …

Bitproperty, Joshua A.T. Fairfield

Scholarly Articles

Property is the law of lists and ledgers. County land records, stock certificate entries, mortgage registries, UCC filings on personal property, United States Copyright and Patent registries of interests in intellectual property, bank accounts, domain name systems, and consumers’ Kindle eBook collections in the cloud — all are merely entries in a list, determining who owns what.

Each such list has suffered under a traditional limitation. To prevent falsification or duplication, a single entity must maintain the list, and users must trust (and pay) that entity. As a result, transactions must proceed at significant expense and delay. Yet zero or …

The Possession Heuristic, James E. Krier, Christopher Serkin

Book Chapters

A heuristic, as Daniel Kahneman (2011: 98) observes, “is a simple procedure that helps find adequate, though often imperfect, answers to difficult questions.” Kahneman is a psychologist, one of a handful of scholars who have brought heuristics to the attention of a general audience, thanks in large part to several books (Kahneman, Slovic, and Tversky 1982; Gilovich, Driffin, and Kahneman 2002). Just as Thomas Kuhn’s 1962 ideas about paradigms in the history of science are fodder for academics in all sorts of fields (this for better or worse), so too for Kahneman and company’s ideas about heuristics, and legal academics …

An Introduction To Conservation Easements In The United States: A Simple Concept And A Complicated Mosaic Of Law, Nancy Mclaughlin, Federico Cheever

Utah Law Faculty Scholarship

The idea of a conservation easement – restrictions on the development and use of land designed to protect the land’s conservation or historic values – can be relatively easily understood. More significant and more challenging is the complex body of state and federal laws that shapes the creation, funding, tax treatment, enforcement, modification, and termination of conservation easements.

The explosion in the number of conservation easements over the past four decades has made them one of the most popular land protection mechanisms in the United States. The National Conservation Easement Database estimates that the total number of acres encumbered by …

The Coming Wave Of Pretextually Profiteering Social Entrepreneurs: A Case Study At The Nexus Of Property And Civil Rights, David Groshoff

William & Mary Environmental Law and Policy Review

This Article builds on my prior publications employing case studies that serve as the prisms through which this Article applies a legal analysis to a newly trending problem in social entrepreneurship.

Specifically, this Article reviews the financial and property interests implicated when, in the milieu of an aging baby-boomer demographic likely to display decaying neurocognitive abilities, ostensibly socially beneficent limited liability companies (“LLCs”) pretextually pose as small businesses with a desire to serve people suffering from particular alleged mental disorders. In reality however, these brand-managed social entrepreneurs may represent conveniently detachable arms of integrated corporate enterprises that have hundreds of …

Sharp Curves Ahead: Analyzing Dedications To Public Use In Louisiana After Webb V. Franks Investment Co., Ben Jumonville

Louisiana Law Review

The article offers information on the history, purpose and significance application of the dedication law by Louisiana courts in transfer ownership case of Webb v. Franks Investment Co. It discusses the judicial decision of the Louisiana Supreme Court in the case of St. Charles Parish School Board v. P & L Investment Corp. applied the presumption for formal dedications transfer ownership of land to the public use.

Summary Of Branch Banking & Trust V. Windhaven & Tollway, Llc, 131 Nev. Adv. Op. 20 (Apr. 30, 2015), Joseph Meissner

Nevada Supreme Court Summaries

The Court determined the proper interpretation of NRS 40.455(1), and applied it in a claim for a deficiency judgment following an out-of-state nonjudicial foreclosure. NRS 40.455(1) “does not require an out-of-state trustee’s sale to comply with NRS 107.080, nor does it preclude a deficiency judgment in Nevada when a nonjudicial foreclosure sale is conducted pursuant to the laws of another state.”

Tax Planning: Foreign Investment In United States Real Property, William H. Newton Iii

Georgia Journal of International & Comparative Law

No abstract provided.