Property Law and Real Estate Commons^™

Hb 834 - Property, Brian H. Cathey, Cassandra Tuchscher

Georgia State University Law Review

The Act allows a victim of domestic violence to terminate his or her residential rental agreement without an early termination penalty if the victim receives a court order related to that family violence.

Liability For Unintentional Nuisances: How The Restatement Of Torts Almost Negligently Killed The Right To Exclude In Property Law, Jill M. Fraley

West Virginia Law Review

No abstract provided.

11th Marine Law Symposium: Legal Strategies For Climate Adaptation In Coastal New England 2018, Roger Williams University School Of Law

Marine Affairs Institute Conferences, Lectures, and Events

No abstract provided.

When Are You An Investor Versus A Dealer In Real Property? (Powerpoint), James B. Sowell, Stephen J. Giordano

William & Mary Annual Tax Conference

No abstract provided.

A Prudential Take On A Prudential Takings Doctrine, Katherine Mims Crocker

Faculty Publications

The Supreme Court is set to decide a case requesting reconsideration of a doctrine that has long bedeviled constitutional litigants and commentators. The case is Knick v. Township of Scott, and the doctrine is the "ripeness" rule from Williamson County Regional Planning Commission v. Hamilton Bank that plaint~ffs seeking to raise takings claims under the Fifth Amendment must pursue state-created remedies first- the so-called "compensation prong" (as distinguished from a separate "takings prong"). This Essay argues that to put the compensation prong in the best light possible, the Court should view the requirement as a "prudential" rule rather than (as …

Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson

University of Miami Law Review

Federal law exerts a gravitational force on state actors, resulting in widespread conformity to federal law and doctrine at the state level. This has been well recognized in the literature, but scholars have paid little attention to this phenomenon in the context of constitutional property. Traditionally, state takings jurisprudence—in both eminent domain and regulatory takings—has strongly gravitated towards the Supreme Court’s takings doctrine. This long history of federal-state convergence, however, was disrupted by the Court’s controversial public use decision in Kelo v. City of New London. In the wake of Kelo, states resisted the Court’s validation of the …

Patent Prior Art And Possession, Timothy R. Holbrook

William & Mary Law Review

Prior art in patent law defines the set of materials that the United States Patent and Trademark Office (USPTO) and courts use to determine whether the invention claimed in a patent is new and nonobvious. One would think that, as a central, crucial component of patent law, prior art would be thoroughly theorized and doctrinally coherent. Nothing could be further from the truth. The prior art provisions represent an ad hoc codification of various policies and doctrines that arose in the courts.

This Article provides coherency to this morass. It posits a prior art system that draws upon property law’s …

The Criminalization Of Vehicle Residency And The Case For Judicial Intervention Via The Washington State Homestead Act, T. Ray Ivey

Seattle University Law Review

In 2014, a nationwide survey by the National Law Center on Homelessness and Poverty found that the number of cities with ordinances that effectively criminalized vehicle habitation increased by 119% between 2011 and 2014. These ordinances take the form of metered street parking zones, permit-only parking zones, time restrictions, restrictions on vehicle operability, restrictions regarding licensing and registration, and even prohibitions directed specifically at vehicle habitation. Violations of these policies typically result in noncriminal citations imposing fees, requiring attendance at hearings, or inflicting other financial burdens, which nevertheless can have devastating impacts on someone with already limited resources. Additionally, the …

Howard V. Hughes, 134 Nev. Adv. Op. 80 (Oct. 4, 2018), Christian Ogata

Nevada Supreme Court Summaries

The Court clarified the holding of Langevin v. York, and applied the presumptions outlined in Sack v. Tomlin to unmarried joint tenants. The Court held that before property may be partitioned and shares are proportionally divided between unrelated joint tenants, a party must overcome the presumption of equal ownership. If a party overcomes this presumption, the shares are proportionally divided based on the parties’ respective financial contributions to the initial purchase price, unless the other party can show a donative intent to gift an equal ownership interest.

Get Out From Under My Land! Hydraulic Fracturing, Forced Pooling Or Unitization, And The Role Of The Dissenting Landowner, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

This article addresses the legal circumstances arising when a state agency authorizes oil and gas production operations beneath a landowner’s land against that landowner’s wishes. One might assume that, if a landowner wants to preserve his or her land from oil and gas development, the landowner could simply refuse to allow drilling to occur beneath the land. However, neighbors may want to develop the oil and gas resources beneath their own land. To satisfy the neighbors’ wishes, an oil and gas producer must assemble mineral production rights on or beneath enough contiguous land to satisfy state spacing and acreage requirements …

Property Law—Landlord-Tenant Law—The Iron Triangle Of Residential Leases: Landlords, Tenants, And Economic Policy In America's Last State Without Implied Warranty Of Habitability. Alexander Apartments V. City Of Little Rock, 60cv-15-6339 (2017), Wesley N. Manus

University of Arkansas at Little Rock Law Review

No abstract provided.

Are Beach Boundaries Enforceable? Real-Time Locational Uncertainty And The Right To Exclude, Josh Eagle

Faculty Publications

Over the past few decades, landowners have tried to use the First, Fourth, and Fifth Amendments to fully privatize the upper, dry-sand part of the beach. If these efforts were to succeed, there would be a host of negative consequences, and not just for surfers. In most of the states in which beaches are economically important, including California, Florida, New Jersey and Texas, privatized dry sand would mean little to no public access at times when the public, wet-sand part of the beach is submerged, that is, in the hours immediately before and after high tides. Decreased beach use would …

Property-As-Society, Timothy M. Mulvaney

Faculty Scholarship

Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception …

Upper Skagit Indian Tribe V. Lundgren, Brett Berntsen

Public Land & Resources Law Review

Stemming from a property dispute between a private landowner and the Upper Skagit Indian Tribe, this action evolved into a debate concerning the scope of tribal sovereign immunity and whether Indian tribes should be bound by certain common law doctrines applicable to most other sovereigns. The Washington Supreme Court originally ruled against the Tribe, citing County of Yakima v. Confederated Tribes and Bands of Yakima Nation in holding that sovereign immunity does not apply to in rem actions. The United States Supreme Court granted certiorari to clarify that its ruling in Yakima did not support such a proposition. The case …

Section 3: Property Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Upstate Citizens For Equality, Inc. V. United States, Kirsa Shelkey

Public Land & Resources Law Review

The Indian Reorganization Act of 1935 is the proper avenue for Tribes pursuing restoration of their historic trust lands. The Oneida Indian Nation of New York long sought to reassert tribal jurisdiction over its historic homeland in Central New York. These efforts were largely unsuccessful until 2008 when the United States took 13,000 acres of this historic homeland into trust on behalf of the Tribe under the Indian Reorganization Act. This case affirms the federal government’s plenary powers over Indian Tribes, and that neither state sovereignty principles, nor the Enclave Clause upset that authority.

Wells Fargo, N.A. V. Radecki, 134 Nev. Adv. Op. 74 (Sep. 13, 2018) (En Banc), Yilmaz Turkeri

Nevada Supreme Court Summaries

The Court determined that: (1) Wells Fargo failed to present evidence of unfairness or irregularity that would invalidate the foreclosure sale; (2) pursuant to NRS 112.170(2), a regularly conducted, noncollusive foreclosure sale under NRS Chapter 116 is exempt under the Uniform Fraudulent Transfer Act (UFTA); and (3) inaccuracies in a foreclosure deed are not sufficient to invalidate a foreclosure sale that complied with NRS Chapter 116.

Bank Of America, N.A. V. Sfr Inv.’S Pool 1, Llc, 134 Nev. Adv. Op. 72 (Sept. 13, 2018) (En Banc), Esteban Hernandez

Nevada Supreme Court Summaries

The Court determined that becausethe holder of the first deed of trust provided valid tender of the superpriority portion of anHOA’s lien, the HOA’s foreclosure on the lien was void as to the superpriority portion. Further, anHOA has no right to convey full title to the property because the holder’s first deed of trust remains after foreclosure. Thus,when the holder unconditionally tenders the superiority amount due, the buyer at an HOA lien foreclosure sale takes the property subject to the deed of trust.

Rosenburg Living Trust V. Macdonald Highlands Realty, Llc C/W 70478, 134 Nev. Adv. Op. 69 (Sept. 13, 2018) (En Banc), Scott Cooper

Nevada Supreme Court Summaries

The Court determined that Nevada law does not recognize implied restrictive covenants based on a common development scheme, and the Court did not adopt the doctrine under these facts. Additionally, the Court held that, unlike common law disclosure requirements, claims arising from the duties of a licensee under NRS Chapter 645 could not be waived. Finally, it held that attorney fees and costs should only be awarded where a claim is without reasonable ground, or to harass the prevailing party.

California Department Of Toxic Substances Control V. Westside Delivery, Llc, Mitch L. Werbell V

Public Land & Resources Law Review

The Ninth Circuit’s recent decision in California Department of Toxic Substances Control v. Westside Delivery, LLC reminds prospective purchasers of tax-defaulted property of their responsibility for due diligence.The case addressed the reach of the third-party defense to a CERCLA cost recovery action. The court determined that CERCLA’s third-party defense did not apply to a company which purchased a contaminated property at a tax auction because of its “contractual relationship” with the former owner-polluter and because the relevant contaminating acts occurred “in connection with” the prior polluter’s ownership of the site.