Friday, August 23, 2013

Opportunistic Client Hypo

A poster on the DIRT listserv posted a question yesterday that I am going to give my Real Estate Transactions students this semester.  This kind of proposal from a client is not unusual -- I had a longtime real estate developer client and friend propose that I help him with exactly the same scenario.  We talked through a few possibilities, I explained all the legal risk to him, and he either dropped it or found another lawyer more eager to help him.  Anyway, its (a) very real, (b) fraught with legal and ethical issues, and (c) therefore a great problem for real estate students to debate.  Here is the unedited post to DIRT:

Hello all,

I have an opportunistic potential client (PC) with the following situation: 

1)     PC knows a seller (of improved property) who is willing to take $500k for his property.

2)     PC knows a potential buyer who is willing to pay $850k for said property.

3)     PC would like to somehow give the seller and buyer what they want while taking the extra $350k off of the potential buyer’s hands.

Continue reading

August 23, 2013 in Real Estate Finance, Real Estate Transactions | Permalink | Comments (0) | TrackBack (0)

Unauthorized Movie Shot at Disney to be Released


If you are looking for an interesting ripped-from-the-headlines hypo to spark discussion when you are discussing intellectual property, here's another Disney example.  Randy Moore, a guerilla filmmaker shot a movie largely on Disney property, using oodles of Disney IP, without the permission of Disney or any of the park guests that appear in the film.  The film was shown at Sundance and has now secured a distribution deal.  Disney has apparently made no public statement, but hasn't taken legal action either. 

Here's a CNN story which has clips from the movie, and a couple of news articles here and here.


Tanya Marsh

August 23, 2013 in Intellectual Property | Permalink | Comments (0) | TrackBack (0)

Ground Zero Update


Scott Rabb contines his monumental, decade-long series on rise of the new World Trade Center.   His  latest installment examines security at the Ground Zero site.  The full portfolio of articles is available here.

Steve Clowney

August 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, August 22, 2013

Case of the Week: Remedies for Violation of a Covenant

Joe Singer summarizes the action from Rhode Island:

The Rhode Island Supreme Court has held that an injunction can be granted to stop an owner from deliberately and knowingly violating a restrictive covenant. The traditional balancing of interests used to determine whether an injunction is appropriate need not be done when violation of a covenant is not inadvertent or unknowing. Cullen v. Tarini, 15 A.2d 968 (R.I. 2011). The court found that defendant knowingly violated a covenant that protected plaintiff’s view of the ocean. In such a case, plaintiff was entitled to an injunction to remove the offending structure despite the fact that defendant had already invested $1 million in the project.

In effect, the court treated servitudes as important property rights owned by the servitude beneficiary and found they cannot be violated simply by paying damages. The beneficiary has a right to enforcement without any need to show that the benefits of enforcement outweigh the costs. The court limited the relative hardship doctrine that balances the equities between the parties to situations where an innocent party proceeds without knowledge or notice that he is encroaching on another’s rights.

Steve Clowney

August 22, 2013 | Permalink | Comments (0) | TrackBack (0)

Joint Tenancy in the Age of Cohabitation

What happens when an unmarried couple buys property and one of the parties walks away from the relationship and the other person stays in the home.  Benny Kass gives a brief primer:

In many states, you have the right to unilaterally convert the title into a tenant in common arrangement. This way, should you die, your heirs — pursuant to your last will and testament — will get your half of the house. [...]

I would have your lawyer send him a demand letter, telling him that unless he immediately signs a quit claim deed over to you, you will sue him for back payments that he should have been making.

Next, you can consider filing a partition lawsuit. Courts throughout this country have held that they will force the sale of property where two or more people want out of an ownership relationship, but one person is a holdout. This is time consuming and expensive, but what choice do you have?

Finally, if you are able to ultimately sell, the next question is: How will the sales proceeds be divided? You should take the position that since he refused to sign over the title to you, and has not made any payments for years, he should not be entitled to a windfall, such as any appreciation in the house.

Clearly, any improvements you have made — although they may have been done beyond the reach of the statute of limitations — increase the value of your house, and a court should take these facts into consideration when deciding who gets what.

Steve Clowney

August 22, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 20, 2013

Map of the Day: The Actual Discoveries of European Explorers


Slate highlights this map:

In recent decades, respect for European explorers, such as Christopher Columbus, has waned, likely because these once-romanticized swashbuckling adventurers killed people, eradicated cultures, and “discovered” places that people (for example, the natives) already knew about. They did make some discoveries, though—lands never inhabited or where the inhabitants were already dead before Europeans made landfall. The map above, from historian and cartographer Bill Rankin, shows those places and the country that discovered each.

Steve Clowney

August 20, 2013 | Permalink | Comments (0) | TrackBack (0)

Glennon & Kavkewitz on the Arizona's Share of the Colorado River

Robert Glennon (Arizona) & Jacob Kavkewitz (Arizona) have posted 'A Smashing Victory'?: Was Arizona v. California a Victory for the State of Arizona? (Arizona Journal of Environmental Law & Policy) on SSRN.  Here's the abstract:

Fifty years ago, the U.S. Supreme Court handed down the most important decision in the State of Arizona’s history. Arizona v. California allocated the flow of the Colorado River among the three Lower Basin states (Arizona, California, and Nevada) according to terms of the 1928 Boulder Canyon Project Act (BCPA). Arizonans rejoiced. However, Arizona’s reaction seems perplexing, given that the State spent decades denouncing the BCPA. Arizona challenged the BCPA numerous times in the Supreme Court and engaged in fierce political battles to block its implementation.

This Article explores this riddle by reviewing the legal and political events leading up to Arizona v. California. Ultimately, the Article concludes that the decision was a victory for Arizona because, while Arizona had engaged in its strategy of obstruction, California had steadily been using more of the Colorado River’s flow. California’s use eventually was well above the amount allocated to it in the BCPA -- water that would otherwise have gone to Arizona. To secure legal rights to water that California was already putting to a beneficial use, Arizona needed to convince the Supreme Court to depart from established precedent for determining interstate water disputes and ratify the notion that the federal government could and had allocated an interstate stream among states.

The decision’s impact on Arizona cannot be overstated. On its heels came Congressional approval of the Central Arizona Project, which allowed Phoenix and Tucson to develop into major population and economic centers. But the conflict over how to divide the River is far from over. A growing population and the uncertain yet tangible effects of climate change bring new water challenges to the Colorado River Basin.

Steve Clowney

August 20, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, August 19, 2013

Students Attempt Land Use Revolution in Ann Arbor


Matt Yglesias highlights this great story out of Michigan:

Here's something cool. Some University of Michigan students are putting together a campaign for local office as the Mixed Use Party with a plan to revolutionize the town's zoning code. The idea is to replace the current "Euclidean" code (under which some areas are residential, some are commercial, blah blah blah) with a very simple "form-based" code. They would create essentially two kinds of zoning areas for the town: "Mixed Use" for downtown and a few dense corridors and "Restricted Mixed Use" for the rest (a small swath of land is set aside for heavy industrial uses).

Here's the plan for Mixed Use areas:

1. Structures must be set back three feet from properties zoned Restricted Mixed Use. On corner lots, structures must not block a driver’s view of a road intersection.
2. The maximum height for a structure is either thirty-five feet, or one-half the distance between the structure and the closest property zoned Restricted Mixed Use. The greater value is the maximum height.

And then in the larger Restricted Mixed Use Area:

1. Structures must be set back three feet from properties zoned Restricted Mixed Use. On corner lots, structures must not block a driver’s view of a road intersection.
2. The maximum height for all structures is thirty-five feet.

Steve Clowney

August 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Freyfogle & Karkkainen on The Institution of Private Ownership

Eric Freyfogle (Illinois) & Bradley Karkkainen (Minnesota) have posted The Institution of Private Ownership: Introductory Essays on SSRN.  Here's the abstract:

One of the appealing aspects of property writing today is the willingness of so many scholars to engage the field a whole, backing away from details and assessing the big picture. It is much-needed work given the importance of private ownership as a contemporary institution, culturally and politically as much as legally and economically.

We are the authors of one of the new casebooks in the field, Freyfogle & Karkkainen, Property Law: Power, Governance, and the Common Good (West/American Casebook Series 2012). As much (or more) than other casebooks it reflects this surge of scholarly interest in the institutional or big-picture side of private ownership. It does so in important part by featuring freestanding essays that identify and comment on foundational issues, exploring them at greater length than is possible in typical casebook notes. As a set, the essays cover what we view as the main institutional elements, ranging from property’s moral grounding and reasons for existence to the modes and most visible directions of on-going legal change. Many students find the essays especially engaging, particularly students with scholarly or critical leanings.

In this writing we have assembled the essays into a set, with revisions (and modest updates) so that they stand alone. We hope they might interest a broader range of readers, personally or for instructional use. We frame our essay topics in what might be termed progressive ways. That is, we present property as a human-constructed, evolving, morally complex social institution, variously beneficial to elements of society and communities, and we open the law of property -– all of it -– to reconsideration. At the same time, we highlight the benefits of legal stability and encourage caution in assuming that institutional change can substitute for individual and cultural reform. One aim is to help students appreciate the causes, modes, and consequences of (presumably) unending legal change.

Steve Clowney

August 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Reconsidering Seaside, Florida

Kaid Benfield reflects on Seaside:

It’s easy to mock Seaside, and plenty do, for being overplanned, a neo-traditional artifice too consumed with nostalgia for an idyllic past that never quite existed as reconceived.  Being featured in the Jim Carrey movie The Truman Show certainly didn’t help.  Neither does its function as a resort community of second homes for an upscale clientele.  Some of that is fair, in my opinion. [..]

There were plenty of other innovations, too, and they are newly chronicled in two new works:  First, Dhiru Thadani’s beautifully written and illustrated new book, Visions of Seaside, tells the complete story of Seaside's conception and evolution.  It’s not a small volume at 600 pages, but Visions is as seriously impressive as its subject.  Lovers of architecture and town planning will be fascinated, as much by the book's depiction of proposals for the town that, for one reason or another, did not get built as by the descriptions of what did.

Second, the engaging video about Seaside below, produced by Chris Elisara for the American Makeover series, provides as good a short, hands-on lesson about innovative city planning as you are likely to find anywhere.  Highly recommended:

Steve Clowney

August 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Sunday, August 18, 2013

Million Dollar Mausoleums


Oh I do love cemeteries.  The Wall Street Journal has a great piece on the very highest-end of the high-end cemetery sales.  (It might be behind a paywall.)  An excerpt:

At Metairie Cemetery in New Orleans, an eight-crypt mausoleum on a 32-by-32-foot lot is scheduled for completion in October with a price tag of about $1.1 million. The buyer, Ray Brandt, a 66-year-old attorney and auto-dealership owner, says he wants space for the whole family. The mausoleum will be carved from pink kershaw granite from South Carolina (his wife's choice) and hold up to 12 burials. There will be two sets of bronze doors, one of which will open to a back patio with picnic-style furniture and a view of a lagoon. "Eventually everyone will end up somewhere," he said. "I guess it's the last house I'll buy."

Above is a picture of Metairie from January, although I didn't get a good picture of Millionaire's Row.  I prefer the older tombs.

Tanya Marsh

August 18, 2013 in Miscellaneous, New Orleans | Permalink | Comments (0) | TrackBack (0)