Property Law and Real Estate Commons^™

Chandra V. Schulte, 135 Nev. Adv. Op. 66 (December 26, 2019), Michael Desmond

Nevada Supreme Court Summaries

The Court determined that (1) the spousal exception bars recovery from the Nevada Real Estate Education, Research and Recovery Fund (“Fund”) for fraud incurred during the period of the marriage and (2) where a spouse co-owned the defrauded property, the surviving spouse may not recover from the Fund.

The Eagle Theory, Thomas W. Merrill

Faculty Scholarship

This Article evaluates three interpretations of the Takings Clause capable of generating a regulatory takings doctrine. The first, the Epstein interpretation, puts primary emphasis on what it means to provide “just compensation” for takings; the second, the Penn Central interpretation, centers on what it means to “take” property; the third, which I call the Eagle theory, in honor of Steven Eagle, this year’s Brigham-Kanner prize recipient, focuses on when the government has taken “private property.” The Article argues that the Eagle theory has the most plausible basis in the original understanding of the Takings Clause, rests on a theory about …

“Fair Enough”? Revising The Yellowstone Injunction To Fit New York’S Commercial Leasing Landscape And Promote Judicial Economy, Gabriel W. Block

Brooklyn Journal of Corporate, Financial & Commercial Law

The Yellowstone injunction is an equitable remedy that tolls any applicable cure period and gives tenants a better opportunity to maintain their leasehold when they have defaulted under their lease. The remedy is available to commercial tenants in New York City and to commercial and residential tenants throughout the State. This Note examines the Yellowstone injunction in the context of New York City’s commercial tenants, who employ it most frequently and benefit most from its protections. This Note examines the development and application of the Yellowstone injunction and proposes changing the doctrine to exclude cases of monetary defaults and expired …

Discounts For Fractional Ownership Of Real Property Are Accepted, So Why Haven’T The Irs And Courts Accepted Discounts For Fractional Ownership Of Artwork?, Maren N. Eisenmesser

Brooklyn Journal of Corporate, Financial & Commercial Law

In 2014, the Fifth Circuit held that Mr. Elkins’s estate was entitled to apply a fractional ownership discount to determine the taxable value of the undivided interest in artwork. The estate received a $14 million refund plus interest. The Internal Revenue Code directs taxpayers to value the items in a gross estate at their fair market value. Fractional ownership adds another problem in the valuation of an estate’s interest property. In general, courts have accepted fractional ownership discounts for real property. In contrast, courts have been reluctant to apply a fractional ownership discount for artwork. This Note will argue that …

Between Scylla And Charybdis: Maritime Liens And The Bankruptcy Code, Ian T. Kitts

Brooklyn Journal of Corporate, Financial & Commercial Law

Federal courts have had trouble fitting maritime law into the bankruptcy scheme created by the Bankruptcy Code (the Code). Particularly troublesome have been vessel-arrest proceedings that are underway when the vessel’s owner files for bankruptcy. Prior to the enactment of the Code, courts applied the doctrine of custodia legis to decide whether the admiralty or the bankruptcy court would administer the vessel. Since the Code was enacted, courts have generally held that the bankruptcy court gained control. A recent Ninth Circuit decision, however, split with other circuits and seems to have revived custodia legis. This Note argues that the Ninth …

Empowering The Poor: Turning De Facto Rights Into Collateralized Credit, Steven L. Schwarcz

Notre Dame Law Review

The shrinking middle class and the widening gap between rich and poor threaten social and financial stability. Though sometimes identified as a problem of developing nations, the inability of the poor to obtain credit by using their de facto rights in property as collateral impedes upward mobility in nearly all countries, including the United States. Efforts to solve this problem have focused on trying to transform de facto rights into de jure title under property law. Those efforts have been unsuccessful because, among other reasons, property law is tightly bound to tradition and protecting vested ownership. This Article proposes an …

Community Consequences Of Airbnb, Allyson E. Gold

Washington Law Review

Short-term rental accommodations account for more than 20% of the United States lodging market, with annual sales now greater than those of nearly all legacy hotel brands. The rise of companies like Airbnb has created a booming market that provides affordable short-term rentals for travelers and new income for those with an extra couch, spare room, or even an unused home. However, while individual hosts and guests may benefit economically, the use of short-term rentals produces significant consequences for the surrounding community. Airbnb proliferation causes fewer affordable housing options, higher average asking rents, and erosion of neighborhood social capital. Due …

Legal And Regulatory Framework For The Mortgage Industry In Nigeria, Kehinde Ogundimu

Economic and Financial Review

This article examines the legal and regulatory framework for the mortgage industry in Nigeria. The article examines the concept of housing as a global need and provides an overview of the Nigerian Housing Market with a population of 183 million people and increasing rapidly, a huge housing deficit of around 17 million units. This is further compounded by a rapid rising need for housing by about 20 per cent a year in cities like Lagos, Ibadan, Kano, and Abuja. At least 700,000 housing units across different segments are needed annually to keep up with demand, whereas, production was around 100,000 …

The Land Use Act And The Nigerian Housing Sector, Yusuf Yahaya

Economic and Financial Review

The article discusses the Land Use Act and the and how it has affected developments in the Nigerian housing sector. Prior to the Land Use Act, all the existing tenure systems encouraged land holding without an obligation to develop them, fragmentation and uncoordinated alienation, hoarding speculatively for value appreciation and without precise documentation. Consequently, the Land Use Act was enacted to: make land easily accessible to all Nigerians; prevent speculative purchases of communal land; streamline and simplify the management and ownership of land; make land available to government at all levels for development; provide the system of government administration of …

Shoring Up The Hear Act: Proposed Amendments To Federal Legislation Designed To Assist Heirs And Claimants Of Nazi-Looted Art, Alexander Hull

Journal of Law and Policy

From 1933 to 1945, Nazi German forces executed a mass campaign of property confiscation, stealing as many as 600,000 pieces of art, including paintings, tapestries and sculptures from museums and private collections across Europe. It is estimated that some 300,000 pieces of art are still missing or are currently in the possession of someone other than the so-called “true” owner, based on reviews of Nazi documentation conducted by the Jewish Restitution Organization. While Nazi art looting has been regarded as “dehumanizing,” “self-advancing” and concomitant with the Nazi regime’s larger genocidal crusade, restitution in this context has been framed as a …

Politics And Policy: Chinese Money And Its Impact On The Regulation Of Residential Property In The West, Edward Seng Wei Ti

Research Collection Yong Pung How School Of Law

The narrative of Chinese real estate investors in some western jurisdictions reads like this: China has in recent decades, enjoyed burgeoning wealth creation across all strata in society. Chinese buyers are attracted to a ‘westernised’ education for their children, an agreeable and law-abiding civic society all whilst living in a clean and pleasant environment. Western real estate markets are seen as safe havens and bringing about portfolio diversification. This flood of Chinese wealth has impacted residential housing markets resulting in locals being outpriced. To combat unaffordability and housing shortages, governments have had no choice but to impose regulatory measures preventing …

Condominium Government And The Right To Live In The City, Douglas C. Harris

All Faculty Publications

Condominium is an architecture of land ownership that produces separate, privately owned units within multi-unit developments. Condominium also constructs a form of private, democratic government, described as a fourth order of government, that acts beneath federal and provincial governments, and alongside municipal government, to govern owners and their property. This article considers a conflict between residential-unit owners and a commercial-unit owner within a condominium development in Vancouver’s Downtown Eastside. Drawing from material produced in litigation, the article situates the dispute within its property and urban contexts to argue that condominium government requires attention, and not just for its impact on …

Virginia Uranium, Inc. V. Warren, Nyles G. Greer

Public Land & Resources Law Review

The Supreme Court of the United States recently ruled that the Atomic Energy Act did not preempt a Virginia law prohibiting uranium mining in the Commonwealth. The Court held that although the Act delegated substantial power over the nuclear life cycle to the Nuclear Regulatory Commission, it offered no indication that Congress sought to strip states of their traditional power to regulate mining on private lands within their borders.

The Implications Of Environmental Law And Latino Property Rights On Modern-Age Border Security: Rejecting A Physical Border And Embracing A Virtual Wall, Kevin Hernandez

Student Scholarship

For many, the construction of a physical border is a rational solution to national security concerns at the southern border. However, there is much evidence indicating that the negative impacts of building a physical border wall far outweigh its benefits. Particularly, the border region’s eco-systems have much to lose in the form of extinctions, biodiversity reduction, and critical habitat destruction. On top of that, a number of Latino communities would be the victims of various eminent domain claims that would strip them of land that, in many cases, has been in their family for multiple gener- ations. The broad, almost …

From Animal Control To Zoning: 2019 Local Government Law Update, Tyler C. Southall

University of Richmond Law Review

The goal of this Article is to review significant recent developments in Virginia local government law. First, this Article discusses a number of Supreme Court of Virginia and Fourth Circuit Court of Appeals cases published between July 1, 2018 and July 1, 2019. These cases involve questions of the First Amendment and social media, the First Amendment and employment law, attorney client privilege and Freedom of Information Act requests, vested rights issues in zoning ordinances, the powers of the Virginia State Corporation Commission, and public finance. Second, this Article addresses new laws from the 2019 General Assembly. It is impossible …

When (And Why) The Levee Breaks: A Suggested Causation Framework For Takings Claims That Arise From Government-Induced Flooding, Charles D. Wallace

William & Mary Law Review

In 1968, the United States Army Corps of Engineers finished constructing the seventy-six-mile Mississippi River-Gulf Outlet (MR-GO) navigational channel. Congress authorized the Army Corps of Engineers to begin construction to create a shipping route between New Orleans and the Gulf of Mexico. However, the MRGO also caused significant erosion and other environmental detriments that greatly increased the risk of flooding around its vicinity. The Army Corps of Engineers learned about many of these detriments and risks through numerous studies it conducted between 1998 and 2005, but never fully addressed them.

Hurricane Katrina eventually showcased the MR-GO’s defects in violent fashion. …

Property Beyond Exclusion, Lee Anne Fennell

William & Mary Law Review

Property rights have long been associated with a simple and distinctive technology: exclusion. But technologies can become outdated as conditions change, and exclusion is no exception. Recent decades have featured profound changes that have made exclusion a less useful, less necessary, and more expensive way of regulating access to resources. This Article surveys the prospects for a post-exclusion understanding of real and personal property. It proceeds from the premise that property is built upon complementarities, the nature and scale of which have undergone seismic shifts. Physical boundaries and lengthy claims on resources are designed to group complementary elements together in …

Lee Hargis Lytton Iii: A Most Extraordinary, Interesting And Instructive Life, Robert Summers

St. Mary's Law Journal

Tribute to Lee Hargis Lytton III, a professor at St. Mary's University School of Law in San Antonio, Texas.

Unlimited Liability For Banks: Deposits As Fraudulent Transfers, Katherine Zampas

St. Mary's Law Journal

One of a trustee’s most valuable resources in bankruptcy proceedings is his avoidance powers. A trustee is charged with the duty to recover and recapture any property wrongfully removed from the estate by way of fraudulent transfer or preference. In some cases, a trustee has attempted to treat a debtor’s deposit into a bank account as a transfer, rendering it subject to his avoidance powers. Such a result will leave banks collaterally responsible as a transferee for a debtor’s conduct despite their lack of culpability and control over the funds.

The definition of transfer within the Bankruptcy Code is comprehensive …

Community In Property: Lessons From Tiny Homes Villages, Lisa T. Alexander

Faculty Scholarship

The evolving role of community in property law remains undertheorized. While legal scholars have analyzed the commons, common interest communities, and aspects of the sharing economy, the recent rise of intentional co-housing communities re-mains relatively understudied. This Article analyzes tiny homes villages for unhoused people in the United States, as examples of co-housing communities that create a new housing tenure—stewardship—and demonstrate the growing importance of community, co-management, sustainability, and flexibility in con-temporary property law. These villages’ property relationships challenge the predominance of individualized, exclusionary, long-term, fee simple ownership in contemporary property law and exemplify property theories such as progressive property …