Friday, April 26, 2013

Live Blogging ALPS: Session III (Constrains on and Structures for Land Use, Sale, and Development)

With so many sessions going on simultaneously, I don't always get to see my co-bloggers present their work. BUT I was lucky enough to hear about Matt Festa's current project as well as listen to a couple of talks on my well known obsession, conservation easements.

Festa presented a work in progress that he is calling "Property Rights and the Pulic Trust." I have two public trust doctrine projects sitting on my shelf so it is an area that I have been thinking about a lot. I love Matt's project, which examines the Severance v. Patterson case in Texas and legislative responses to it. He ponders the legality of the proposed legislative response that would expand the land considered to be covered by the public trust doctrine in Texas. Can't wait to see how this develops.

Douglas Harris from UBC presented "Title Registration, the Distribution of Risk, and the Abolition of Notice." I have been intrigued by issues of notice associated with servitudes and always have fun with this topic when teaching property law (yep, my class is a hoot). Douglas Harris explained to us how the rules requiring notice. Essentially, the movement is away from a doctrine of notice and toward rules simply requiring registration of title. Exceptions remain for fraud usually. He presents a compelling story about the Land Title Act in British Columbia leaving folks there in a confusing state about whether notice requirements co-exist with the land titling act. Generally, these ideas connext to issues relating to land recordation system. I often hear folks argue that we can do with some of our common law constraints on property because our land recording systems are so much better these days. Frankly, I get nervous when people say that because land recording is still rife with errors (particularly with recordation of conservation easements and other servitudes).

Gerald Korngold (whom I was delighted to finally meet in person) presented "Governmental Conservation Easements: Balancing Perpetuity with Democracy." Gerry is looking at governement conservation easements, by which he means conservation easements held by governement agencies. He asserts that these conservation easements have some benefits over those held by land trusts. I eagerly await his forthcoming article on this topic. I think alot of government conservation easmeents but I generally think of those as conservation easements that are created under governement programs. I haven't quite wrapped my head around the difference that emerge solely based on who is the holder. I can see a good case for asserting better transparency and accountability though!

Nancy McLaughlin of Utah presented "Perpetual Conservation Easements: Contemporary Issues and Challanges."Although she spoke last, she won the contest for most interesting powerpoint (a good strategy for a 4pm talk). Nancy focused on donated conservation easement and tax law. Although not a tax prof, we property and land use folks warmly welcome her presence and often highlight her research. She showed some shocking numbers in terms of the generous level of tax deductions landowners are getting and a huge number of challenges coming through the tax courts.

Jessie Owley

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