Property Law and Real Estate Commons^™

Sabermetrics And Patents?: Open Source, Property Protections, And Alice V. Cls Bank, Keegan L. Rand

Marquette Intellectual Property & Innovation Law Review

None

Theft, Extortion, And The Constitution: Land Use Practice Needs An Ethical Infusion, Michael M. Berger

Touro Law Review

There are many ways in which property owners/developers interact with regulators. To the extent that texts and articles deal with the ethical duties of the regulators, they tend to focus on things like conflicts of interest. But there is more. This article will examine numerous other ways in which regulators may run afoul of ethical practice in dealing with those whom they regulate

The Future Of Cryptocurrency And Real Estate Transactions, Rachel Silverstein

Touro Law Review

Bitcoin and other cryptocurrencies are all the rage right now and are beginning to make their ways into everyday transactions— including real estate transactions. This article discusses whether using cryptocurrencies to complete real estate transactions will become the norm in the near future. Cryptocurrency laws in general are few and far between, but laws surrounding cryptocurrency and real property are even more sparse. Recent case law involving cryptocurrency is a major focus of this article, along with background knowledge about cryptocurrency and the meaning of “money” as we know it today. The article concludes with a discussion about the unlikelihood …

A Timeshare By Any Other Name: Fractional Homeownership And The Challenges And Effects Of Commodified Single-Family Homes, Christopher Markuson

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Property Prohibitions: Why Criminalizing Prostitution Violates Constitutional Guarantees, James J. Bernstein

University of San Francisco Law Review

No abstract provided.

Firpta Repeal: The United States’ Post-Pandemic Economic Solution To Infrastructure Reform, Adam Mazin

University of San Francisco Law Review

No abstract provided.

Real Property, J. Richard White, Amanda Grainger

SMU Annual Texas Survey

No abstract provided.

The Legal Relations Of ‘Private’ Forests: Making And Unmaking Private Forest Lands On Vancouver Island, Estair Van Wagner

All Papers

While the vast majority of forestlands in Canada are considered ‘Crown land’, there are key areas of private forestland. On private land the incidents of fee simple ownership mean the owner emerges as land use decision maker – the “agenda setter” for the land. Yet a richer set of legal relations exists in these forests.

Indigenous legal orders derived from an enduring relationship with the land and place also govern forestlands. Using the case of the Esquimalt and Nanaimo Railway lands in British Columbia, this article explores the intersection between historical and contemporary human-forest relations upheld by Anglo-Canadian law and …

Whiteness As Contract, Marissa Jackson Sow

Faculty Publications

2020 forced scholars, policymakers, and activists alike to grapple with the impact of “twin pandemics”—the COVID-19 pandemic, which has devastated Black and Indigenous communities, and the scourge of structural and physical state violence against those same communities—on American society. As atrocious acts of anti-Black violence and harassment by law enforcement officers and white civilians are captured on recording devices, the gap between Black people’s human and civil rights and their living conditions has become readily apparent. Less visible human rights abuses camouflaged as private commercial matters, and thus out of the reach of the state, are also increasingly exposed as …

Confronting The Local Land Checkerboard, Daniel B. Rosenbaum

University of Richmond Law Review

Fractured public land is hidden in plain sight. In communities across the country, a patchwork assortment of local governments share splintered ownership over surplus public properties, which can be found scattered in residential neighborhoods and alongside highways, in the shadows of development projects and in the scars of urban renewal. The ripple effect of this fragmentation extends across the spectrum of local governance. It creates needless costs and bureaucratic headaches at a time of acute fiscal distress for cities and counties. It contributes to an inequitable imbalance of local power between formal and informal landowners in a community. And curiously, …

Structural Precarity And Potential In Condominium Governance Design, Andrea Boyack

Faculty Publications

In the early hours of June 24, 2021, half of Champlain Towers South Condominium, a thirteen-story multifamily building located in the Miami suburb of Surfside, collapsed without warning. The Miami Herald called the collapse “unprecedented” in that one wing “simply caved in––for no obvious reason.” The collapse killed ninety-eight people and was the deadliest multifamily building engineering failure in US history. After an arduous search and rescue and safely dismantling the rest of the structure, inquiries sought to determine why this deadly collapse happened. Who was to blame, and what could have been done differently?

Within six months of this …

Home Of The Dispossessed, Allison Anna Tait

Law Faculty Publications

The objects that people interact with on a daily basis speak to and of these people who acquire, display, and handle them—the relationship is one of exchange. People living among household objects come to care for their things, identify with them, and think of them as a constituent part of themselves. A meaningful problem arises, however, when people who have deep connections to the objects that populate their lived spaces are not those who possess the legal rights of ownership. These individuals and groups—usually excluded from the realm of property ownership along lines of gender, race, and ethnicity—live on an …

Innate Property: The Danger Of Incongruency Between Law And The Biological And Behavioral Roots Of Property And Possessiveness, Aaron Schwabach

Cardozo Law Review de•novo

Property law is, in some areas, dangerously out of step with property expectations. Property—the idea that a place, object, or idea can belong to a person—is at the root of the world’s economies and thus also at the root of much of its laws. Property is neither solely a creature of positive law, nor of some abstract natural law with a moral underpinning, but rather may be biologically determined, much as Noam Chomsky proposed for languages in Aspects of the Theory of Syntax.1 The idea that ownership is at least behaviorally, and perhaps to some extent instinctively, determined has been …

What Property Does, Christopher Serkin

Vanderbilt Law School Faculty Publications

For centuries, scholars have wrestled with seemingly intractable problems about the nature of property. This Article offers a different approach. Instead of asking what property is, it asks what property does. And it argues that property protects people’s reliance on resources by moderating the pace of change. Modern scholarly accounts emphasize voluntary transactions as the source and purpose of reliance in property. Such “transactional reliance” implies strong, stable, and enduring rights. This Article argues that property law also reflects a very different source of reliance on resources, one that rises and falls simply with the passage of time. This new …

Fencing The Wind: Property Rights In Renewable Energy, Martin Lockman

Faculty Publications

In the face of global warming, the rapid development of carbon-neutral energy resources is utterly imperative. However, even environmentally friendly energy production like wind power has real externalities. Those who live in the shadow of wind turbines and suffer the immediate effects of wind development can be disenfranchised by municipal and state-level siting processes. Meanwhile, absent or ad hoc governance of windstreams prevents the efficient economic use of renewable energy resources when upwind development can doom a nascent windfarm. As windstream development intensifies, each of these conflicts will only become more frequent and more severe.

This article proposes a novel …

A Property Law Reader: Cases, Questions, And Commentary, 5th Ed., Preface And Table Of Contents, Douglas C. Harris, Jeremy De Beer, Tenille E. Brown, Patricia L. Farnese

All Faculty Publications

Nobody has been more influential over the past generation in the teaching of property law in Canada than Bruce Ziff. His Principles of Property Law is the foundational textbook on the subject. A Property Law Reader: Cases, Questions, and Commentary, which he first published as a sole author in 2004, has become, over three subsequent editions, the most widely used teaching material for property law in the country. Bruce retired from teaching property law in 2019. His retirement left major holes not only at the University of Alberta, where he taught for decades, but also throughout Canada in terms of …

The Constitutional Right To “Establish A Home", John G. Sprankling

McGeorge School of Law Scholarly Articles

Everyone needs a home. But exclusionary zoning ordinances in many communities prevent low-income and moderate-income families from securing affordable homes, disproportionately harming people of color. Because these ordinances satisfy the rational basis test, they have been immune from substantive due process attack. This Article provides a new method to challenge the constitutionality of exclusionary zoning.

For decades, the Supreme Court has recognized that the Due Process Clause of the Fourteenth Amendment protects the right to “establish a home.” The Clause was adopted, in part, as a response to the “Black Codes” enacted by southern states in the post-Civil War era …

Returning Home And Restoring Trust: A Legal Framework For Federally Non- Recognized Tribal Nations To Acquire Ancestral Lands In Fee Simple, Taino J. Palermo

Roger Williams University Law Review

No abstract provided.

Waste And The Governance Of Private And Public Property, Tara Righetti, Joseph Schremmer

Faculty Articles

Common law waste doctrine is often overlooked as antiquated and irrelevant to modern law as a result of contract, corporate law, trust and estate planning, and public law. At best, waste doctrine is occasionally examined as a lens through which to evaluate evolutions in modern property theory. We argue here that waste doctrine is more than just an historical artifact. Rather, the principle embedded in waste doctrine underpins a great deal of property law generally, both common law and statutory, as well as the law governing oil and gas, water, and public trust resources. Seen for what it is, the …

Land Options For Housing: How New Property Rights Can Break Old Land Monopolies, Roderick M. Hills Jr., Shitong Qiao

Faculty Scholarship

The world today is afflicted by inequality of wealth created in large part by monopolistic ownership of land. Hong Kong, with the least affordable housing in the world, provides a particularly apt example of how property law protects such monopolies—and also how the creation of new property rights can break them up.

In this Article we use Hong Kong as a case study to suggest both a diagnosis and a solution to two aspects of property law that slow down the creation of housing. First, the division of property rights between private owners and the government creates a bilateral monopoly …