Saturday, February 4, 2017

#PropertySchmooze Panel 6: Comparative Property Law

As our final panel of the #PropertySchmooze we’ll hear about property law from a comparative perspective.

Julie Forrester (SMU) began by sharing her work on real estate-related receivables, comparing the approach to using such rights as collateral under the American and Japanese systems. She noted that there is a legal disconnect between the transfer of a lender's right to payments under a mortgage note and the transfer of a landlord's right to payments under a real estate lease. Julie noted that some of the problems likely come from the fact that personal and real property are treated differently in the US. In the mortgage context, the note representing the loan is governed by the UCC while the mortgage on the real estate is governed by real property law. However in the real estate lease context, the lease is governed by real property law but the rents, once severed, are considered to be personal property. She notes that because Japan is a civil law jurisdiction where personal (movable) and real (immovable) property are treated under similar rules, Japanese property law has the potential to serve as a framework to reconcile some of the discrepancies in treatment of real estate-related receveiables  underAmerican law. 

Next, Sally Richardson (Tulane) gave a presented titled Ownership, Equity, and Development: A Comparative Taxonomy of Property Regimes, which examines the ways different legal systems approach competing rights in the same property. She began by asserting that in today’s market few, if any, enjoy sole and complete ownership of property. Whether through zoning, concurrent or future interests, restrictive covenants, or security rights, private property is rife with intra-party tensions due to these mixed, overlapping, and shared interests. Sally further argues that the law variously favors certain interest holders in the same property over others, all in accordance with specific policy choices about the best use of the property. To explore these different approaches, she studies the doctrines of servitudes, co-ownership, and life estates under four legal systems:  under the English common law, the American common law, the French civil law, and the German civil law. Sally notes that by studying these concepts and the way the different systems balance the rights of multiple parties in the same property, one gains an insight into how the systems value property. Moreover, such an understanding will better equip lawmakers, scholars, and judges to analyze which aspects of another jurisdiction’s property law could be effectively incorporated into their own legal regime.

Great work, Sally and Julie!

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