Property Law and Real Estate Commons^™

Deinstitutionalizing The Mentally Retarded In Maine: The Inevitable Face-Off With Zoning, Pamela D. Albee

Maine Law Review

In July 1978, agencies and officials of the State of Maine entered into a federal consent judgment which terminated a class action lawsuit that had dragged on for three years. The consent judgment in Wuori v. Zitnay detailed a comprehensive plan designed to bring about speedy and meaningful relief to the plaintiff class: mentally retarded citizens of Maine involuntarily confined to Pineland Center, Maine's principal institution for the mentally retarded, and certain others who were conditionally released from Pineland and in community placements. The relief granted was a right to be provided the least restrictive and most normal living conditions …

Stewart V. Inhabitants Of Durham: An Exclusionary Purpose Ignored, Peter Alexander Meyer

Maine Law Review

Exclusionary zoning of mobile homes has become an increasingly important issue in Maine because of escalating costs of conventional housing and rising unmet housing needs. Although towns may regulate mobile home or any other housing use in order to foster public health, safety, morals, or general welfare, they may not enact a zoning ordinance to exclude people of lower income in an attempt to avoid the "increased governmental costs and the stresses upon public services which generally accompany such an incursion." In Stewart v. Inhabitants of Durham, the Maine Supreme Judicial Court was confronted with an exclusionary purpose in a …

Probate Standing, David Horton

Michigan Law Review

Few topics in civil justice have sparked as much criticism as the standing doctrine. The U.S. Constitution and some of its state counterparts require plaintiffs to allege that they suffered an “injury-in-fact” that the defendant caused and that a court can redress. A veritable ocean of commentary argues that this requirement [is confusing, ahistorical, and unmoored from its objectives.

Yet a different manifestation of the standing doctrine has long lurked in obscurity. Standing issues are also common in state probate courts, where the transmission of assets from the dead to the living can affect a variety of parties. But in …

Disclose By Law, Obfuscate By Strategy: A Corpus-Based Analysis Of Patent Filings, Katherine Ireland, W. Michael Schuster, Tim R. Samples

BYU Law Review

The patent system encourages dissemination of technical information by granting inventors exclusive rights to their inventions in exchange for public disclosure of their technology. The American Inventors Protection Act (AIPA), enacted in 1999, advanced this goal by increasing the scope and speed of disclosure. Previously, filings were published only if and when a patent was granted, but under the AIPA most applications are published eighteen months after filing. The sum of those changes amplified a fundamental tradeoff between protection and exposure. Although patents offer protection, competitors can exploit disclosures by integrating the innovations into their own research and development efforts. …

Gifts, Joint Ownership, And Marital Property: Interspousal Transfers Of Property Under Maine's Marital Property Act, Paul Fillmore

Maine Law Review

The classification of property in divorce proceedings as either marital or individual is crucial because under Maine's Marital Property Act a divorce decree can dispose of only marital property. Once the court identifies the marital property, the actual division of that property is within the court's discretion. Courts, however, often have difficulty classifying property which was once individual property but which was transferred by the owner spouse into joint ownership during the course of the marriage. Maine courts have reached different results in these situations depending on whether they have read the Marital Property Act literally or in the context …

The Waiver Problem In Maine Real Property Foreclosure Law: A Commercial Paper Perspective, Dennis M. Patterson

Maine Law Review

When a mortgagee accepts from a mortgagor payment of part of a mortgage arrearage, does the mortgagee then waive its right to foreclose? Many bank counsel will say that the mortgagee does waive its right to foreclose, and they will point for authority to the broad holding of Savings & Loan Association of Bangor v. Tear. In that decision, the Maine Supreme Judicial Court, sitting as the Law Court, seemed to hold that a mortgagee waives its right to foreclose if it accepts tender of a late payment. This broad interpretation of the Savings & Loan decision has proven to …

Wilderness, Trust, And Finality: The Baxter State Park Snowmobile Dispute, Ellen Kandoian, Brooke E. Barnes

Maine Law Review

The recent controversies surrounding the use of snowmobiles in Baxter State Park exemplify the human essence of the trust relationship and the law's awkwardness in addressing the inherently nonlegalistic principles of trust. Baxter State Park is an area of 201,018 acres in northern Maine, purchased by former Governor Percival Proctor Baxter and then donated to the State of Maine in trust. The park includes Mount Katahdin, the highest mountain in Maine and the head of the Appalachian Trail. As Chief Justice McKusick wrote in a recent decision construing the trust, "in its combination of size, uniqueness, permanence, and vision, his …

Managing The Cumulative Effects Of Coastal Land Development: Can Maine Law Meet The Challenge?, Alison Rieser

Maine Law Review

Following a period of slow economic growth for the State of Maine in the early part of this decade, improved economic conditions and new demographic trends have renewed the demand for commercial, residential, and recreational development in coastal communities across the state. For many years, Maine has tried to stimulate growth in its communities. Now, many of its coastal towns face a huge development boom, particularly in the southern and mid-coast areas, in communities such as York, Wells, Ogunquit, Kennebunk, Kennebunkport, Portland, Camden, and Belfast. These towns are struggling to find ways to control the increasing density of development along …

Stealing Graceland And Evicting Aunt Mary Ann: Real Property, Erica L. Sullivan

Mercer Law Review

This Article surveys developments in Georgia real property law between June 1, 2023, and May 31, 2024. This Article reviews several cases decided during the Survey period and highlights real estate trends and news both in Georgia and nationally.

Reconceptualizing Property Law's Background Principles In Takings Law, Timothy M. Mulvaney

Faculty Scholarship

Both libertarians and progressives celebrated the result in Tyler v. Hennepin County. This Article asserts that this unified celebration has overshadowed the extent to which the Supreme Court’s reasoning calls into question even our most foundational assumptions about the meaning of property and the takings protections the constitution affords to it. Followed to its literal end, Tyler remarkably suggests that owners may well need to ground their expectations in the property laws endorsed by a majority of states rather than in the laws of their own state.

Suspicious that the Court intended such a revolutionary upheaval of the state variations …

Property Rights Or Obstacles To Progress?: The Fundamental Flaws In Takings Jurisprudence, Liam Higgins

Journal of Law and Policy

New York boasts some of the strongest protections for tenants out of all jurisdictions throughout the country. Chief among these laws is the state Rent Stabilization Law (“RSL”). Among other protections, the RSL has limited excessive rent increases on regulated apartments, granted tenants a right of renewal so that they could remain in their homes, and permitted family members to take over the tenancy of their loved ones upon their passing. The RSL has been amended several times throughout its history, each time providing more or less protections depending on the administration at the time. Recently, in 2019, the New …

Takings, Original Meaning, And Applying Property Law Principles To Fix Penn Central, John M. Groen

Touro Law Review

No abstract provided.

Fixing A Broken System: Reconciling State Foreclosure Law With Economic Realities, Yianni D. Lagos

Tennessee Journal of Law and Policy

No abstract provided.

Integrating Doctrine & Diversity Speaker Series: Owning Our Values: Supplementing Our Textbooks For Those Engaged In Social Justice, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

General Discretion Under Maine's Site Location Of Development Law, Tybe Ann Brett

Maine Law Review

The 1960s brought nationwide concern about the environmental impact of post-World War II development and industrial growth. Efforts to protect the environment took many different forms. Part of Maine's response to the growing need for environmental improvement measures was the Legislature's enactment in 1970 of the Site Location of Development Law (Site Law). The Site Law gives the state control over the location of developments that would substantially affect the environment, rather than leaving such decisions to single towns and individual developers. The Law also addresses concerns beyond those dealt with in air and water pollution control legislation. The Site …

Construing "Consideration" In Maine's Recreational Use Statute: Robbins V. Great Northern Paper Co., Russell B. Pierce Jr.

Maine Law Review

Since 1961, when the Legislature enacted the original version of Maine's "recreational use statute," the Maine Supreme Judicial Court has had little opportunity to construe the statute's several components. The recent case of Robbins v. Great Northern Paper Co., however, allowed the court to interpret the "consideration" exception of the statute for the first time. In a 4-3 decision, the Maine Supreme Judicial Court, sitting as the Law Court, ruled that a $95.00 annual rental fee for noncommercial, recreational use of a lot on the defendant's property did not constitute "consideration" so as to fall within the exception to landowner …

Rethinking The History Of The Seventeenth-Century Colonial Ordinance: A Reinterpretation Of An Ancient Statute, Mark Cheung

Maine Law Review

In 1648, the Massachusetts colonial government ordered into print The Book of the General Laws and Libertyes that included an ordinance, commonly known as the Colonial Ordinance. The Ordinance extended private seashore property rights to the low water mark but to no more than one hundred rods beyond the high-water mark. The 1648 Ordinance replaced an earlier version enacted in the Body of Liberties of 1641. While both versions of the Ordinance enumerated public rights of fishing, fowling, and navigation in the foreshore, the 1648 Ordinance provided the critical language extending the private boundary to the low water mark. Prior …

Shoreline Access In Rhode Island: A Case Study Of Black Point, Michael Rubin

Maine Law Review

Access to the shoreline in Rhode Island has been a strong tradition since the colonial era. However, with increasing development pressures on the formerly rural shore areas, especially in the region of the state commonly called "South County," it was only a matter of time before public and private interests collided over the diminishing resource. That inevitable collision occurred at a particular piece of shorefront property known as Black Point, in the Town of Narragansett, when a developer purchased this large tract of ocean-front property and proposed the construction of luxury condominiums. The project would entail the closing of an …

Expanding Public Access By Codifying The Public Trust Doctrine: The Massachusetts Experience, William L. Lahey, Lauren Sandler Zurier, Kenneth W. Salinger

Maine Law Review

The Commonwealth of Massachusetts is dramatically expanding public access to the coast through statutory and regulatory codification of the public trust doctrine. Is this legislative and administrative experiment relevant to other states, particularly to Maine? The initial answer to this question may depend on the meaning of the Bell v. Town of Wells decision. For better or for worse, Massachusetts jurisprudence set the course followed by the majority of the Maine Supreme Judicial Court in Bell. To some, including several of the authors in this symposium, the bearing of the Massachusetts courts leads to a civic wasteland where the public's …

Intellectual Indifference—Intellectual Dishonesty: The Colonial Ordinance, The Equal Footing Doctrine, And The Maine Law Court, Orlando E. Delogu

Maine Law Review

Perhaps the most disappointing aspect of the recent Bell decision was the fact that it was 4-3, that significant public interests were lost because a bare majority refused to examine, in the detail necessary, the Colonial Ordinance, old and new United States Supreme Court cases, Maine law, or the reasoning of their own colleagues who filed a compelling dissenting opinion in the case. A mere recitation of the dissenting opinion would serve no useful purpose—it is a part of the public record; its rationale speaks for itself. Had the rationale of the dissent been adopted by the majority it would …