Property Law and Real Estate Commons^™

A Railway, A City, And The Public Regulation Of Private Property: Cpr V. City Of Vancouver, Douglas C. Harris

All Faculty Publications

The doctrine of regulatory or constructive taking establishes limits on the public regulation of private property in much of the common law world. When public regulation becomes unduly onerous — so as, in effect, to take a property interest from a private owner — the public will be required to compensate the owner for its loss. In 2000, the City of Vancouver passed a by-law that limited the use of a century-old rail line to a public thoroughfare. The Canadian Pacific Railway, which owned the line, claimed the regulation amounted to a taking of its property for which the city …

Keynote Address: 14th Annual Conference On Litigating Takings Challenges To Land Use And Environmental Regulations, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Keynote address to the 14th Annual Annual Conference on Litigating Takings Challenges to Land Use and Environmental Regulations, November 18, 2011 at Georgetown University Law School.

This conference explores the regulatory takings issue as it relates to land use and environmental regulation. The conference brings together a diverse group of leading scholars and experienced practitioners to discuss cutting-edge issues raised by recent decisions and pending court cases. Some of the topics to be discussed include takings claims generated by major flooding events in the Mississippi River, including Hurricane Katrina and the Mississippi floods of 2011, the takings issues raised by …

The Cathedral Engulfed: Sea-Level Rise, Property Rights, And Time, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Sea-level rise will require many new initiatives in land use regulation to adapt to unprecedented climate conditions. Such government actions will prompt regulatory and other takings claims, and also will be shaped by apprehension of such claims. This article analyzes the categories of land use regulations and other government initiatives likely to be enacted to adapt to sea-level rise and anticipates the takings claims that may be brought against them. In addition to hard and soft coastal armoring, the article considers regulations intended to force or induce development to retreat from rising waters. Retreat regulations present difficult takings problems, because …

Book Review Of American Property: A History Of How, Why, And What We Own, By Stuart Banner, Douglas C. Harris

All Faculty Publications

Property Law is about things, but only secondarily. It is primarily about relationships between people as they pertain to things. As a result, although we commonly identify material and immaterial things as private, common, or state property, property law deals with the subset of human relationships that determines rights and responsibilities with respect to things. The institution of property law — the rules that define this subset of human relationships — arises in the context of scarcity. When things are scarce and accordingly hold exchange value, humans construct ideas of ownership. We have been doing so for millennia, or at …

The Property Strategy, Thomas W. Merrill

Faculty Scholarship

My objective in this Article is to offer a description of property as an institution for organizing the use of resources in society. There are several strategies for deciding how valued things will be used, and by whom. “Might makes right” is one approach: we can let a strongman decide these questions. Bureaucratic governance is another: we can create a hierarchical organization and adopt rules and procedures for allocating resources. Group consensus is a third: questions about resource use can be resolved through meetings and discussion among those most closely involved. The claim advanced here is that property is a …

Cutting Municipal Services During Fiscal Crisis: Lessons From The Denial Of Services To Condominium And Homeowner Association Owners, Gerald Korngold

Articles & Chapters

No abstract provided.

Going Rogue: Stop The Beach Renourishment As An Object Of Morbid Fascination, Mary Doyle, Stephen J. Schnably

Articles

Scholarly response to the Supreme Court's decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection has focused on the plurality's strong advocacy of a judicial takings doctrine. We take a different tack. While the concept of judicial takings is worthy of serious attention, it is wrong to treat the plurality opinion as an ordinary object of analysis. It is, instead, the emanation of a Court going rogue.

Three basic symptoms of the pathology stand out. First, sleight of hand. The plurality opinion purports to be about an institutional issue-can a state court commit a taking? - …

Historic Preservation And Its Cultured Despisers: Reflections On The Contemporary Role Of Preservation Law In Urban Development, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The past years have seen widely noticed critiques of historic preservation by “one of our leading urban economists,” Edward Glaeser, and by star architect Rem Koolhaas. Glaeser, an academic economist specializing in urban development, admits that preservation has value. But he argues in his invigorating book, Triumph of the City, and in a contemporaneous article, Preservation Follies, that historic preservation restricts too much development, raises prices, and undermines the vitality of the cities. Koolhaas is a Pritzker Prize-winning architect and oracular theorist of the relation between architecture and culture. In his New York exhibit, Cronocaos, he argued …

The Character Of The Governmental Action, Thomas W. Merrill

Faculty Scholarship

Penn Central Transportation Co. v. New York City holds a secure position in the architecture of the regulatory takings doctrine. That doctrine is at bottom a tool for distinguishing between different governmental powers; in particular, between the power of eminent domain and the police power. Because eminent domain requires that compensation be paid, whereas the police power does not, it is necessary to draw a line between these powers. Conceivably we could simply take the legislature at its word as to which power it is exercising. But at least since Pennsylvania Coal Co. v. Mahon, the Supreme Court has insisted …

Promising To Be Prudent: A Private Law Approach To Mortgage Loan Regulation In Common-Interest Communities, Julia Patterson Forrester Rogers, Jerome Organ

Faculty Journal Articles and Book Chapters

This Article explores one possible private law prescription that may help common-interest communities avoid the financial disaster associated with foreclosure epidemics-a financing restriction that would limit (1) the ability of any homeowner in a common-interest community to borrow excessively against the value of her home, and (2) the ability of lenders to make loans that a homeowner does not have the ability to repay. Part I of this Article begins in the Great Depression with a discussion of Neponsit Property Owners' Association v. Emigrant Industrial Savings Bank, w exploring how the case both fostered the development of common-interest communities and …

Property As Modularity, Thomas W. Merrill

Faculty Scholarship

Professor Henry Smith’s Property as the Law of Things urges a return to an older conception of property as rights with respect to things – and justifies this in terms of a very new conception of property based on modularity. Throughout, he highlights the importance of information costs in determining the structure of property law, starting with a baseline of in rem rights of exclusion supplemented by governance rules to deal with exceptional situations. I fully agree with his emphasis on the centrality of things in the law of property, the in rem nature of property, the primacy of exclusion …

Official Maps And The Regulatory Takings Problem: A Legislative Solution, Trent Andrews

BYU Law Review

No abstract provided.

Summary Of Holt V. Regional Trustee Services Corp., 127 Nev. Adv. Op. 80, Brandon C. Sendall

Nevada Supreme Court Summaries

The Court considered an appeal from a district court order refusing to enjoin a lender from instituting a second foreclosure action after being denied a Foreclosure Mediation Program certificate in a prior foreclosure action.

Foreclosing Modifications: How Servicer Incentives Discourage Loan Modifications, Diane E. Thompson

Washington Law Review

Despite record losses to investors, homeowners, and surrounding communities, the foreclosure crisis continues to swell. Many commentators have urged an increase in the number of loan modifications as a solution to the foreclosure crisis. The Obama Administration created a program specifically designed to encourage modifications. Yet, the number of foreclosures continues to outpace modifications. One reason foreclosures outpace modifications is that the mortgage-modification decision maker’s incentives generally favor a foreclosure over a modification. The decision maker is not the investor or the lender, but a separate entity, the servicer. The servicer’s main function is to collect and process payments from …

Real Property, Linda S. Finley

Mercer Law Review

The survey period, June 1, 2010 through May 31, 2011, saw continued dire economic times for Georgia and the entire United States, which were marked with a record-breaking number of foreclosures. Georgia courts and the Georgia General Assembly began to pay attention to the foreclosure process, the diminution of property values, and how these issues affect Georgia families. Although the purpose of this Article is not to specifically address these serious issues, judicial and legislative trends indicate that these issues will be around for some time.

Pluralism And Property, Gregory S. Alexander

Cornell Law Faculty Publications

Welfarism is no longer the only game in the town of property theory. In the last several years a number of property scholars have begun developing various versions of a general vision of property and ownership that, although consistent with welfarism in some respects, purports to provide an alternative to the still-dominant welfarist account. This alternative proceeds under different labels, including “virtue theory” and “progressive,” but for convenience purposes let us call them collectively “social obligation” theories. For what they have in common is a desire to correct the common but mistaken notion that ownership is solely about rights. These …

Property's Memories, Eduardo M. Peñalver

Cornell Law Faculty Publications

This short essay, presented at Fordham's conference on the social functions of property (and in an earlier form at a conference on law and memory at USC), explores the relationship between property and memory. It distinguishes between property as the object of memory ("memory of property") and property as a medium of memory ("memory in property"). With respect to both kinds of memory, the common law expresses a great deal of ambivalence towards memory. Unlimited memory is no less dangerous to a system of property than it is to an individual’s ability to think. Recent reforms of adverse possession, the …

The Public Pore Space: Enabling Carbon Capture And Sequestration By Reconceptualizing Subsurface Property Rights, James Robert Zadick

William & Mary Environmental Law and Policy Review

No abstract provided.

Legitimate Exercises Of The Police Power Or Compensable Takings: Courts May Recognize Private Property Rights, Terence J. Centner

Journal of Food Law & Policy

Under their police power, governments regulate nuisances and take actions in emergency situations. For protecting humans, animals, and plants from diseases and other pests (jointly referred to as diseases), governments order inoculations, quarantine items and people, and seize and destroy property.' With respect to plants and animals, the United States Secretary of Agriculture is authorized to prohibit the importation and movement of items than may be infested. The Secretary also has the authority to hold, treat, and destroy items to prevent the dissemination of plant and animal pests. State governments take additional actions to prevent the introduction and dissemination of …

No Room For Squatters: Alaska’S Adverse Possession Law, Jennie Morawetz

Alaska Law Review

In 2003, the Alaska Legislature dramatically changed Alaska’s adverse possession law. Alaska’s new law curtails the application of adverse possession in a way that is more stringent than any other state’s law. This Note summarizes Alaska’s adverse possession law prior to 2003 and discusses how it was changed in 2003 by the passage of Senate Bill 93. The Note then explores some implications of the new law: the ability to extinguish but not create private easements by prescription, the importance of recording, and the potential for a “good faith squatter” to lose land she believes is hers.