Property Law and Real Estate Commons^™

Stategraft, Bernadette Atuahene, Timothy Hodge

All Faculty Scholarship

Although sometimes difficult to detect, governmental power abuses can have detrimental impacts. Property tax assessments provide an effective lens to examine this phenomenon because, given the complexity of calculating property tax assessments, it is difficult for citizens to know when local government has exceeded its legitimate taxing authority and crossed into the realm of illegal extraction. Michigan is an ideal case study because it protects property owners by making assessment-related power abuses more visible through a unique state constitutional provision: property tax assessments cannot exceed 50 percent of a property’s market value. Abuses have persisted nevertheless. Between 2011 and 2015, …

Disclaiming Property, Michael Pappas

Faculty Scholarship

Can Congress pick and choose when it must follow the Constitution? One would expect not, and yet the Supreme Court has allowed it to do so. In multiple statutory programs, Congress has disclaimed constitutional property protections for valuable interests that otherwise serve as property. The result is billions of dollars’ worth of “disclaimed property” that can be bought, sold, mortgaged, or leased, but that can also be revoked at any moment without due process or just compensation.

Disclaimed property already represents a great source of value, and property disclaimers are at the core of major recent policies ranging from natural …

The Architectural Works Copyright Act: Can It Protect An Architect's State Of The Art Development When Funded Through Federal Dollars?, Kyle R. Moore

Marquette Intellectual Property Law Review

Westlawn Gardens, the multi-million, multi-phase redevelopment, is nearing completion. As it stands, the LEED award winning development is the largest public housing neighborhood in Wisconsin. But what if a commercial company or individual tried to recreate that development; would the original architect’s work be protected under copyright law?

Copyright law has provided no answers and the law typically protects the architect, but when federal dollars are handed down to independent agencies the ownership line is blurred. 17 United States Code Section 105, states that “copyright protection under this title is not available for any work of the United States government, …

Pipelines, Electrical Lines, And Little Pink Houses: Do Any Limits On "Public Use" Remain In Eminent Domain Law?, Kristin J. Hazelwood

Law Faculty Scholarly Articles

That property is more than mere dirt, brush, or rugged terrain is made obvious by the fervor with which individuals will defend their right to inhabit or use that property. Property can be valuable to individuals for myriad reasons, including an ancestral connection to the property; "historic, religious, and cultural significance;" or emotional attachment. The desire to preserve the right to use property or to protect it from environmental harm can create atypical activists, such as the Sisters of Loretto in Kentucky. The sisters opposed the construction of the pipeline across their pristine property and voiced their disapproval of the …

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

Scholarly Articles

This article argues that nuisance was historically unique in tort law because of its special role in protecting property rights.' In other words, nuisance historically had distinct features addressed to the special situation of land. Most importantly, nuisance protected the right to exclude in a way that no other cause of action did. The Second Restatement's change then diminished our rights to private property to the extent that it has been adopted. The majority of courts retain the more logical and defensible position--that property rights are special and nuisance encompasses something more than the idea of negligence.

Community Dignity Takings: Dehumanization And Infantilization Of Communities Resulting From The War On Drugs, Jamila Jefferson-Jones

Law Faculty Research Publications

No abstract provided.

The "Publicization" Of Private Space, Sarah Schindler

Sturm College of Law: Faculty Scholarship

Recently, many urban areas have moved away from the creation of publicly owned open spaces and toward privately owned public open spaces, or “POPOS.” These POPOS take many forms: concrete plazas that separate a building from the sidewalk; glass-windowed atriums in downtown office buildings; rooftop terraces and gardens; and grass-covered spaces that appear to be traditional parks. This Article considers the nature of POPOS and examines whether they live up to expectations about the role that public space should play and the value it should provide to communities. This analysis is especially important because in embracing POPOS, cities have made …

Testing Fannie Mae's And Freddie Mac's Post-Crisis Self-Preservation Policies Under The Fair Housing Act, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

Beginning in the 1930s, the federal government adopted programs and policies toward safe and decent housing for all. The initiatives included the creation of the Federal Housing Administration that, among other things, spurred mortgage lending by guaranteeing mortgage loans to low- and moderate-income borrowers. The creation of the secondary mortgage market by Fannie Mae and Freddie Mac (“GSEs”) helped provide more liquidity for loan originators. However, somewhere along the way, these GSEs lost their way, as they pursued profitability without regard to risk and heedlessly bought mortgages without considering quality.

The overabundance of poor quality mortgages led to the housing …

Integrating Adjunct Faculty Into Teaching Real Estate Transactions Law & Practice--Both In The Classroom And Online, 53 Wake Forest L. Rev. 947 (2018), Celeste M. Hammond

UIC Law Open Access Faculty Scholarship

I welcome the invitation to share my experience and ideas on teaching law students about the real world of real estate from a transactional perspective, beyond the appellate cases that are the basis of so much traditional legal education.

Fifty Years Since Passage Of The Fair Housing Act: Rent-To-Income Ratios In The Persistence Of Residential Racial Segregation In Chicago, 51 J. Marshall L. Rev. 551 (2018), Amanda Insalaco

UIC Law Review

No abstract provided.

The New Model Negotiated Alternative To The Foreclosure Act, R. Wilson Freyermuth, Dale A. Whitman

Faculty Publications

One of the many painful lessons learned from the mortgage crisis that began in 2007 is that foreclosure is often a costly, slow, inefficient, and uncertain process. The additional cost and uncertainty for lenders are magnified when the balance of the mortgage debt exceeds the value of the collateral (that is, when the borrower is “underwater”), and thus full recovery by the lender of its investment is unlikely. Ways to avoid this misery are for the lender (usually represented by the servicer for a secondary market purchaser or a securitized trust) and the borrower to enter into a deed in …

The Power To Exclude And The Power To Expel, Donald J. Smythe

Faculty Scholarship

Property laws have far-reaching implications for the way people live and the opportunities they and their children will have. They also have important consequences for property developers and businesses, both large and small. It is not surprising, therefore, that modern developments in property law have been so strongly influenced by political pressures. Unfortunately, those with the most economic resources and political power have had the most telling influences on the way property laws have developed in the United States during the twentieth century. This article introduces a normal form game – I call it the “Not-In-My-Backyard Game” – to illustrate …

A Clean Slate For Texas Foster Youth: Policy Recommendations On Preventing And Resolving Identity Theft For Youth In Foster Care, Madison Howard Churchman

Texas A&M Journal of Property Law

This Article will compare how Texas and other states implement this federal law differently and then discuss how Texas can improve its flawed system to better protect children negatively affected by identity theft. Section II of this Article will introduce and explain M.D. v. Abbott and the changes in Texas foster care on the horizon as a result of this case. Section III will introduce and delve into the issue of identity theft in foster youth as a whole, and it will tell the story of one foster youth who faced the results of identity theft. Finally, the Section breaks …

The "Publicization" Of Private Space, Sarah B. Schindler

Faculty Publications

Recently, many urban areas have moved away from the creation of publicly owned open spaces and toward privately owned public open spaces, or POPOS. These POPOS take many forms: concrete plazas that separate a building from the sidewalk; glass-windowed atriums in downtown office buildings; rooftop terraces and gardens; and grass-covered spaces that appear to be traditional parks. This Article considers the nature of POPOS and examines whether they live up to expectations about the role that public space should play and the value it should provide to communities. This is especially important because in embracing POPOS, cities have made a …

Rainwater Harvesting In Colorado And The Quandary Of A Taking, Stephen N. Bretsen

Texas A&M Journal of Property Law

Although rainwater harvesting would appear to be a win-win solution to the problem of developing new sources of water, implementing rainwater harvesting in the American West has been fraught with tensions that have pitted rural farmers and other agricultural interests against urban and suburban homeowners. The water law of the western states is based on the prior appropriation doctrine, which creates a “first in time, first in right” system of water rights tied to when a user diverts surface water for beneficial use. Since water rights are property rights, state statutes and regulations that “go too far” in affecting them …

Old Water Becoming New Again: Reuse Of Treated Wastewater Effluent In Texas, Howard S. Slobodin, Hope C. Shelton

Texas A&M Journal of Property Law

The reuse of treated wastewater effluent for municipal supply is not a new idea in Texas, having been contemplated for at least sixty years. However, its importance has grown in recent decades as traditional surface water sources have become fully subscribed. Reuse is recognized as a significant source of future supply for Texas in the 2017 Texas State Water Plan.1 The law related to reuse is, however, still very much a developing subject. Recent administrative actions and judicial decisions have better defined the contours of the entitlements necessary to reuse effluent discharged to state-owned water courses.2 In the midst of …

The Comparable Properties Standard: A Windfall For The Wealthy, A Shortfall For The Poor, Timothy R. Macgorman

Texas A&M Journal of Property Law

The Texas Constitution mandates that taxation shall be equal and uniform, and that property shall be appraised at market value for the purposes of ad valorem property taxation. While valuation methodology is crucial to property owners in such a context, the “Comparable Properties Standard” embodied in Sections 41.43(b)(3) and 42.26(a)(3) of the Texas Tax Code appears to allow wealthy property owners to unconstitutionally manipulate the appraised value of their property for ad valorem taxation purposes and shift their tax burden to other taxpayers. Unless the Texas legislature enacts a mandatory sales price disclosure statute, or directly amends or repeals the …

How A Zombie Condo Board Can Ruin Your Day: The Case For Rewriting Section 15 Of The Illinois Condominium Property Act, 52 Uic J. Marshall L. Rev. 1 (2018), Joseph Alfe

UIC Law Review

By exploiting the highly ambiguous Section 15 of the Illinois Condominium Property Act, developers and their zombie Homeowner Association boards of directors can easily oust unwitting unit owners–and it’s all legal. In analyzing just such a case that was before the DuPage County Circuit Court, Huntington Condo. Ass’n v. Grimm, and viewed through the clarifying twin lenses of Eminent Domain and notions of fair play and justice, one cannot help but conclude that Section 15 of the Act is desperately in need of a dramatic rewrite. I propose one here. But more so, in the quest for clarity of the …

From The Dark Tower: Unbridled Civil Asset Forfeiture, Saleema Saleema Snow

Journal Articles

The Black Lives Matter movement reinforces that race dominates all aspects of the judicial system. Police officers are significantly more likely to stop African Americans than Whites. Even when a stop or arrest is unwarranted, law enforcement agencies can still profit from the property seized under the guise of forfeiture statutes. Various state and federal civil asset forfeiture statutes legitimize law enforcement seizing cash, homes, cars, and office equipment—all with nominal due process protections. Despite evidence of discriminatory police practices, the U.S. Supreme Court deems these forfeiture practices constitutional.

This article seeks to reignite the conversation about discriminatory policing and …

What If? Using Medicare Regulations To Control And Commercialize Rainwater Harvesting, C. Trey Scott

Texas A&M Journal of Property Law

This Article will examine how rainwater harvesting in Texas would look if applied to a structure for rainwater governance similar to the structure of Medicare governance. Section II addresses the reasons why rainwater harvesting must be considered a necessity. Next, Section III will provide an overview of the applicable Medicare regulations that will later be reappropriated and rewritten for rainwater harvesting. Section IV will apply the discussed Medicare structure to rainwater harvesting. Finally, Section V will provide a closing answer to what if we applied the Medicare structure to rainwater harvesting.