Property Law and Real Estate Commons^™

Enforcing Takings Clauses In China, Jie Cheng

All Faculty Publications

Property rights are considered fundamental in constitutional jurisprudence and essential for economic development. However, China’s economic growth over the past 30 years has posed a special paradox to many theorists: for some, it is a mysterious phenomenon that China could continue rapid growth for a few decades without proper contract law until 1999 and without constitutional private property rights until after 2004. For others, the lack of property rights explains the social unrests arising from land-taking and the potential risk of non-sustainability of further development. This does not mean that there is no property protection in China; both the Constitution …

Due Process For Cash Civil Forfeitures In Structuring Cases, Timothy J. Ford

Michigan Law Review

On January 22, 2013, Tarik “Terry” Dehko sat down to pay the bills for his small Michigan grocery store when a federal agent entered his office. The agent told Dehko that the Internal Revenue Service (IRS) had executed a seizure warrant and taken the market’s entire bank account—more than $35,000. When Dehko asked how he could run his business without its bank account, the agent replied, “I don’t care.” The government did not charge Dehko with a crime that day. In fact, Dehko had never been charged with any crime in his life. Instead, the government waited until July 19 …

Making "Smart Growth" Smarter, Steve P. Calandrillo, Chryssa V. Deliganis, Andrea Woods

Articles

The “smart growth” movement has had a significant influence on land use regulation over the past few decades, and promises to offer the antidote to suburban sprawl. But states and local governments that once enthusiastically touted smart growth legislation are beginning to confront unforeseen obstacles and unintended consequences resulting from their new policies.

This Article explores the impact of growth management acts on private property rights, noting the inevitable and growing conflicts between the two sides that legislatures and courts are now being asked to sort out. It assesses the problems with creating truly intelligent urban growth, ranging from political …

Borrowers And Bankruptcy Trustees’ Unsuccessful Attempts To Avoid A Mortgage Under The “Splitting-The-Note” Theory, Alana Friedberg

Bankruptcy Research Library

(Excerpt)

In 1993, the mortgage industry created the electronic database Mortgage Electronic Registration System (“MERS”) in order to “track ownership interests in residential mortgages.” MERS “serves as the mortgagee in the land records for loans registered on the MERS System, and is a nominee (or agent) for the owner of the promissory note.” To date, MERS holds title to around 60 million home mortgages, about half of all home mortgages in the United States.

Borrowers and bankruptcy trustees have attempted unsuccessfully to argue a mortgage or deed of trust is void if a third party, such as MERS, was designated …

Landlord’S Liability For Tenant’S Nuisance: Uksc Clarifies The Law In Lawrence V Fen Tigers (No. 2), Kee Yang Low

Research Collection Yong Pung How School Of Law

Where an occupier of premises creates or causes a nuisance and affects his neighbour’s enjoyment of land, the neighbour may sue him under the tort of nuisance. Where the occupier is a tenant, the neighbour may also have recourse to the landlord. This area of law, however, has not been the subject of rigorous judicial analysis and appears to be still lacking in clarity, precision and sophistication. The position prior to the UKSC decision in Lawrence and another v Fen Tigers Ltd and others (No. 2),1 (“Lawrence”) as discerned by the authors of Markesinis & Deakin’s Tort Law2 is that, …

When Private Property Rights Collide With Growth Management Legislation, Steve P. Calandrillo, Chryssa V. Deliganis, Andrea Woods

Articles

Over the past century, ever-expanding urban and suburban growth in the United States has offered a clear sign of America’s economic vitality, but it has not come without unique challenges of its own. Indeed, efforts to promulgate “smart growth” legislation as an antidote to suburban “sprawl” have proliferated in the past three decades, but it is time we ask ourselves whether their benefits outweigh their unintended consequences. States and local governments that once enthusiastically touted such legislation are beginning to confront unforeseen obstacles–and litigation–that raise the need for immediate reform.

This Article explores the impact of growth management acts on …

Possession As A Natural Right, Thomas W. Merrill

Faculty Scholarship

What follows is, I hope, a tribute both to Friedrich Hayek, for whom this lecture series is named, and Richard Epstein, who was kind enough to invite me to give the lecture. Hayek has long been an inspiration for his insights about the advantages of decentralized decision making and the importance of information in understanding design of institutions. Both are recurring themes in my own work. Richard was my teacher at the University of Chicago Law School and has been a guiding light ever since. His works on nuisance law, takings, and the public trust doctrine, among others, have had …

Following New Lights: Critical Legal Research Strategies As A Spark For Law Reform In Appalachia, Nicholas F. Stump

American University Journal of Gender, Social Policy & the Law

The nascent “critical legal research” movement applies the constellation of critical theory to the American legal research regime. Work in this discourse has unpacked the means through which commercial print and online legal resources (e.g., Westlaw and Lexis) insidiously channel the efforts of legal researchers, essentially predetermining research outcomes. Although legal research is commonly conceived as a normatively neutral paradigm, such commercial homogenizing agents (paired with traditional methods of legal analysis) in fact reflect and perpetuate society’s dominant interests. As grounded in the existing literature, this Article outlines novel strategies that may together constitute one potential version of a critically …

Ownership And Possession, Thomas W. Merrill

Faculty Scholarship

One of the enduring mysteries about property is why the law protects both ownership and possession. In a pre-modern world, with low rates of literacy and no formal method of registering titles, one can understand why the law would protect possession. In such a world, there may be no concept of property beyond the understanding that persons should respect possessory rights established by others. It is less clear why possession should be protected once property comes to be understood as ownership. Ownership and possession will commonly overlap, and protecting ownership will protect possession. Nevertheless, even in the most sophisticated legal …

Anticipatory Remedies For Takings, Thomas W. Merrill

Faculty Scholarship

The Supreme Court has rendered two lines of decisions about the remedies available for a violation of the Takings Clause. One line holds that courts have no authority to enter anticipatory decrees in takings cases if the claimant can obtain compensation elsewhere. The other line, which includes three of the Court's most recent takings cases, results in the entry of an anticipatory decree about takings liability. This Essay argues that the second line is the correct one. Courts should be allowed to enter declaratory or other anticipatory judgments about takings liability, as long as they respect the limited nature of …

Introduction: Toward Voice And Reflexivity, Olivier De Schutter, Katharina Pistor

Faculty Scholarship

In their introductory chapter, De Schutter and Pistor argue that in light of increasing absolute and relative scarcity of land and fresh water there is urgent need to improve the governance of these and other essential resources. Emphasizing “essentiality” shifts the debate from allocative efficiency to normative concerns of equity and dignity. Essential resources are indispensable for survival and/or for meaningful participation in a given community. Their allocation therefore cannot be left to the pricing mechanism alone. It requires new parameters for governance. The authors propose Voice and Reflexivity as the key parameters of such a regime. Voice is …

On Bargaining For Development, Timothy M. Mulvaney

Faculty Scholarship

In his recent article, Bargaining for Development Post-Koontz, Professor Sean Nolon concludes that the Supreme Court’s recent ill-defined expansion of the circumstances in which land use permit conditions might give rise to takings liability in Koontz v. St. John’s River Water Management District will chill the state’s willingness to communicate with permit applicants about mitigation measures. He sets out five courses that government entities might take in this confusing and chilling post-Koontz world, each of which leaves something to be desired from the perspective of both developers and the public more generally.

This responsive essay proceeds in two parts. First, …

Supreme Court 2002 Term - The Property Cases: Iolta, Qui Tam Actions, And Punitive Damages, Leon D. Lazer

Touro Law Review

No abstract provided.

Summary Of First Financial Bank V. Lane, 130 Nev. Adv. Op. 96, Joseph Meissner

Nevada Supreme Court Summaries

The Court determined whether the definition of “indebtedness,” found in NRS 40.451, in conjunction with NRS 40.459, limits the amount a successor lienholder can recover in a deficiency judgment.

The Property Rights Revolution That Failed: Eminent Domain In The 2004 Supreme Court Term, David Schultz

Touro Law Review

No abstract provided.

Takings Cases In The October 2004 Term, Leon D. Lazer

Touro Law Review

No abstract provided.

Federalism Cases In The October 2004 Term, Erwin Chemerinsky

Touro Law Review

No abstract provided.

One Stick In The Bundle: Characterizing Nonparticipating Royalty Interests Under West Virginia Law, Andrew S. Graham, Allison J. Farrell, Lauren A. Williams, Amber M. Moore

West Virginia Law Review

No abstract provided.

Real Property, Linda S. Finley

Mercer Law Review

Any survey of Real Property Law will certainly include a report of the "usual suspects" including boundaries, easements, zoning, and the like, but today's real estate practitioner is expected to be knowledgeable about other related topics such as the unauthorized practice of law, taxation, the rights of consumers in foreclosure, and other varied topics. No survey can discuss every relevant case or topic, but the purpose here is to provide the reader with a broad understanding of "hot" topics and, perhaps, lead the reader to more specific research and debate about these topics.

From Railroads To Sand Dunes: An Examination Of The Offsetting Doctrine In Partial Takings, Louis M. Russo

Fordham Law Review

Called “shadowy at best,” the offsetting doctrine in partial takings has confused “even trained legal minds” and generated inconsistent decision after inconsistent decision.  The offsetting doctrine allows certain benefits, termed special, to offset condemnation awards, while general benefits may not be offset.  Courts blindly adhere to the doctrine despite its underpinnings rooted in eighteenth-century public policy, which was based on concerns of overly speculative valuation and arguably erroneous fairness, as well as incorrect interpretations of Takings Clause jurisprudence.  Such adherence dramatically increases the cost of financing a takings project.

In the face of blind adherence to the doctrine, municipalities are …