Property Law and Real Estate Commons^™

Domestic Asset Protection Trusts: A Debtor's Friend And Creditor's Foe, Nora Hood

Brooklyn Journal of Corporate, Financial & Commercial Law

In 1997, Alaska enacted the first law in the United States legalizing Domestic Asset Protection Trusts (DAPTs), also referred to as self-settled asset protection trusts, as valid legal entities. Under traditional trust law, a debtor cannot shield assets from creditors by placing them in a trust for his or her own benefit. Alaska’s statute allowing DAPTs calls the traditional rule into question. This Note will examine use of DAPTs in the United States, including whether or not the recently amended Uniform Voidable Transaction Act would consider any transfer to a DAPT voidable per se, and discuss an approach that intends …

Air Banned And Barred: Why New York City's Affordable Housing Crisis Has No Room For Short-Term Rentals, Wilson Chow

Brooklyn Journal of Corporate, Financial & Commercial Law

In August 2018, New York City passed a law that required short-term rental websites to disclose information about their users who host in the city. Airbnb, the largest short-term rental company, filed suit with hopes of having short-term rentals legalized. The law stems from the city’s efforts to amelioerate its affordable housing crisis. With over 8.5 million residents living in a tight housing market, New York City should not allow home owners or rental tenants to commercialize their property into de facto hotels that will likely provide accommodations to tourists. This Note will examine the recent law’s impact on New …

Property In Digital Coins, J.G. Allen

Research Collection Yong Pung How School Of Law

Digital coins have burst into mainstream awareness recently, mainly as a result of high-worth ‘Initial Coin Offerings’ (‘ICOs’). The most immediate question in the legal treatment of digital coins is whether they are properly seen as digital ‘commodities’, and/or as ‘securities’, and/or as units of ‘money’. But the conceptual underpinnings of these categories are not clear, nor is it clear how these categories relate to each other; no legal system currently deals adequately with incorporeal objects as objects of property law. This category includes not only digital coins but also some forms of conventional money and securities. Establishing a satisfactory …

From Nuisance To Environmental Protection In Continental Europe, Vanessa Casado-Pérez, Carlos Gomez Liguerre

Faculty Scholarship

This paper analyzes the evolution and complexity of the legal response to neighboring conflicts in European civil law countries. All of the civil codes analyzed (France, Germany, Spain, Netherlands, and Catalonia) are based on Roman Law rules that are not always clear. The fuzziness of those Roman Law rules explains, in part, why despite this common origin, the Civil Codes did not respond homogeneously to nuisances. The first subsection briefly describes the institution of nuisance in Roman Law. Then, the paper describes the original codification of nuisance and the changes in the treatment of this institution. After assessing the initial …

Maralex Resources, Inc. V. Barnhardt, Bradley E. Tinker

Public Land & Resources Law Review

In Maralex Resources v. Barnhardt, Maralex and property owners brought an action to protect private property from BLM inspections of oil and gas lease sites. The Tenth Circuit looked at the plain meaning of a congressional statute and held in favor of Maralex, finding that BLM lacked authority to require a private landowner to provide BLM with a key to inspect wells of their property. The Tenth Circuit held BLM has the authority to conduct inspections without prior notice on private property lease sites; however, it is required to contact the property owner for permission before entering the property.

Rights Of Creditors To Collect Marital Debts After Divorce In Community Property Jurisdictions, James L. Musselman

Pace Law Review

The primary thrust of this Article is to address the post-divorce liability issue outlined in Part III from the perspective of debtor-creditor law. The rules adopted in most of the community property jurisdictions with respect to this issue appear to be primarily focused on the perspective of marital property and family law without regard to general debtor-creditor law principles and policies. For example, basic fraudulent transfer law has been ignored in those jurisdictions and not applied in the usual manner. As a result, the rules developed in those jurisdictions with regard to the post-divorce liability issue are not consistent with …

Law And Neighborhood Names, Nestor M. Davidson, David Fagundes

Vanderbilt Law Review

This Article provides a novel investigation of how law both enables and constrains the ability of city residents to claim, name, and often rename their neighborhoods. A rich interdisciplinary dialogue in fields such as geography and sociology has emerged on the significance of place names, but this literature has largely ignored the legal dimensions of the phenomenon and its implications for urban governance, belonging, and community conflict. This Article's empirical exploration of the role of law in change and conflict regarding neighborhood identity thus advances the discourse both for legal scholars focused on urban dynamics and across disciplines.

From gentrification …

Trying Times: Conservation Easements And Federal Tax Law (April 2019), Nancy Mclaughlin

Utah Law Faculty Scholarship

Since 2006, the Tax Court, District Courts, and Circuit Courts have collectively issued more than one-hundred decisions relating to the federal charitable income tax deduction for the donation of perpetual conservation easements. This outline discusses these court decisions and other developments in the conservation easement donation context. The outline was prepared for a May 3rd, 2019, program of the same name at the University of Utah S.J. Quinney College of Law. Presenters at the program were Nancy A. McLaughlin, Professor of Law, University of Utah S.J. Quinney College of Law; Stephen J. Small, Attorney at Law, Law Office of Stephen …

Uncompensated Takings: Insurance, Efficiency, And Relational Justice, Brian Angelo Lee

Faculty Scholarship

No abstract provided.

Crime And Punishment In Gold Country : A Historical Case-Study, Shih-Chun Steven Chien, Lawrence M. Friedman

Law Faculty Articles and Essays

Rural life, small town life, is not and has never been idyllic. It has always had its share of pathology, sometimes deep pathology. Small town life is not necessarily traditional life, close-knit family life, neighborly life. That kind of life certainly exists; but America was never a traditional society in that sense. Its small towns were full of strangers. The population of El Dorado County, small as it was, had been growing rapidly. Like America in general, El Dorado County had its share of anomie; rootless men (and women), without strong relationships: ships without anchors, driftwood on the sea of …

Endangering Missouri’S Captive Cervid Industry, Lauren Hunter

Missouri Law Review

This Note seeks to explore the validity of regulations proposed by the Commission to prevent the spread of chronic wasting disease (“CWD”) – a fatal neurodegenerative disease – in cervids, such as white-tailed deer. Part II discusses the facts and circumstances surrounding the Missouri Supreme Court’s decision in Hill v. Missouri Department of Conservation. Part III dissects the delicate balance between private property interests and government interests, the scope of the Commission’s regulatory authority, as well as the driving forces behind the “right-to-farm” amendment to the Missouri Constitution. Part IV unpacks the court’s reasoning in Hill before concluding with a …

Privacy Remedies, Lauren H. Scholz

Indiana Law Journal

When consumers sue companies for privacy-intrusive practices, they are often unsuccessful. Many cases fail in federal court at the motion to dismiss phase because the plaintiff has not shown the privacy infringement has caused her concrete harm. This is a symptom of a broader issue: the failure of courts and commentators to describe the relationship between privacy rights and privacy remedies.

This Article contends that restitution is the normal measure of privacy remedies. Restitution measures relief by economic gain to the defendant. If a plaintiff can show the likely ability to recover in restitution, that should be sufficient to pass …

Commercial-Property Leases As A Means For Private Environmental Governance, Darren A. Prum

Georgia State University Law Review

Commercial-property leases as a means for private environmental governance routinely get overlooked despite their noticeable presence. The applicable theoretical models used in environmental law and the standards that typically measure legal activity fail to detect the commercial-property lease as a regulatory action as well. Moreover, the public and positive law and policy approach of the past that heavily relied on administrative authority now follows more of a private law and governance approach. The private law and governance approach responds to the marketplace where standards are set, enforcement occurs, and dispute resolution takes place between parties involved in the transaction outside …

Afterlife Of The Death Tax, Samuel D. Brunson

Indiana Law Journal

More than a century ago, Congress enacted the modern estate tax to help pay for World War I. Unlike previous iterations of the estate tax, though, this one outlived the war and accumulated additional goals beyond merely raising revenue. The estate tax helped ensure the progressivity of the tax system as a whole, and it limited the hereditary ability to accumulate wealth.

This modern estate tax almost instantly met with opposition, though. The opposition has never been sufficient to entirely eliminate the estate tax, but it has severely weakened its ability to raise revenue and to prevent the accumulation of …

Legislative Reform Or Legalized Theft?: Why Civil Asset Forfeiture Must Be Outlawed In Ohio, Alex Haller

Cleveland State Law Review

Civil asset forfeiture is a legal method for law enforcement to deprive United States citizens of their personal property with little hope for its return. With varying degrees of legal protection at the state level, Ohio legislators must encourage national policy reform by outlawing civil asset forfeiture in Ohio. Ohio Revised Code Section 2981.05 should be amended to outlaw civil asset forfeiture by requiring a criminal conviction prior to allowing the seizure of an individual’s property. This Note proposes two plans of action that will restore Ohio resident’s property rights back to those originally afforded in the United States Constitution.

Uncompensated Takings: Insurance, Efficiency, And Relational Justice, Brian Lee

Faculty Scholarship

No abstract provided.

Standing For Standing Rock?: Vindicating Native American Religious And Land Rights By Adapting New Zealand's Te Awa Tupua Act To American Soil, Malcolm Mcdermond

Dickinson Law Review (2017-Present)

On February 23, 2017, the Standing Rock Sioux Tribe (“Tribe”) was forced to disband its nearly year-long protest against the construction of the Dakota Access Pipeline, which threatened the integrity of its ancestral lands. The Tribe sought declaratory and injunctive relief in the United States District Court for the District of Columbia, but the court ruled against the Tribe and failed to protect its interests. While the United States was forcibly removing Indigenous protesters, other countries were taking steps to protect Indigenous populations. In unprecedented legislative action, New Zealand took radical steps to protect the land and cultural rights of …

Residential Mortgage Default And The Constraints Of Junior Liens, R. Wilson Freyermuth, Dale A. Whitman

Faculty Publications

Our purpose in this Article is to show how and why junior liens impose these constraints on the process of resolving residential mortgage loan defaults, and to suggest some changes in the law that can restore a measure of desirable flexibility for borrowers and servicers in negotiating default resolutions. At the same time, these suggestions take into account, as they must, the need for fairness in respecting the legitimate rights of junior lienholders.

Say What You Mean! How Arkansas Courts Are Contradicting The Default Rule Of Tenancy In Common, Joel Hutcheson

Arkansas Law Notes

In 2015, the Arkansas Court of Appeals ruled that a warranty deed with the grantees listed as “Herbert Love and Gloria Love” vested the property in a tenancy by the entirety. There was no language in the deed designating the grantees as a married couple, such as “husband and wife” or “tenants by the entirety.” In fact, the only way someone reading the deed would know that the grantees were married was that the grantees were also the grantors, where it listed them as husband and wife. The court made its decision by looking to precedent case law which states …

Conserving A Vision: Acadia, Katahdin, And The Pathway From Private Lands To Park Lands, Sean Flaherty, Anthony L. Moffa

Maine Law Review

Although a century separates the official designations, the strategies required to ensure federal protection of Maine’s two National Park Service areas—Acadia National Park and Katahdin Woods and Waters National Monument—closely track one another. In both cases, a handful of enterprising conservationists shared the vision for conservation. Both areas depended on the private acquisition, and donation, of title to the numerous parcels that comprised them before the land could garner federal protection. Politics in the early 20th and 21st centuries had to be overcome. This work tells the stories in parallel, highlighting and analyzing four strands of similarity to not only …