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Univ. of Kentucky College of Law

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Thursday, March 1, 2007

Korngold on Intergenerational Conflicts

Gerald Korngold (Case Western Reserve University School of Law) has posted Resolving the Intergenerational Conflicts of Real Property Law: Preserving Free Markets and Personal Autonomy for Future Generations on SSRN.  Here's the abstract:

This article argues that land allocation agreements (e.g., deeds, mortgages, covenants, easements, etc.) made today will have a profound and perhaps negative effect on owners in future generations. It shows that the current architecture of the land transaction system and related rules unduly favor current owners over successors, causing a negative impact on land markets and choices of future players. Moreover, the article demonstrates that current doctrine and theory do not provide adequate flexibility for future generations to deal with outmoded land allocation agreements, leading to inefficiencies and frustration of the personal autonomy of future owners. The article suggests a new conceptual framework as well as specific alternative approaches for courts and legislatures across the spectrum of real property areas (including, inter alia, interpretation of instruments, the recording system, changed circumstances rules, conservation easements, subdivision covenants, and eminent domain). Given the historical and ongoing importance of land in the American experience, it is essential that decision makers act to guarantee future generations the opportunity to engage in markets and to fulfill their personal aspirations.

Ben Barros

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March 1, 2007 in Estates In Land, Future Interests and the RAP, Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 29, 2006

Rivers on Heirs' Property

Thanks to Ann Bartow (in a comment to my last post) for pointing out an interesting paper by Faith Rivers (Vermont Law School) titled Restoring The Bundle of Rights:  Preserving Heirs' Property in Coastal South Carolina.  From the introduction:

Heirs' property refers to real property held without clear title.  The property is typically owned and inhabited by indigenous families, a significant number of whom can trace their ownership back to purchases by former slaves during the civil war and reconstruction.  The deed to the land is registered to a deceased family member.  The land has been handed down from generation to generation through the intestacy laws and is now owned by a group of relatives who possess fractionated fees as tenants in common.

The paper provides a historical overview of the problem and discusses related policy and reform issues.  Heirs' property presents a host of interesting and important issues.  I talk a bit about it when I cover tenancy in common and actions for partition.  Buyers (often white) can buy one heir's interest, seek partition, and buy the property in the partition sale, a problem that Rivers discusses in some detail.  The highly fractured ownership caused by generations of intestacy also reminds me of the Native American land at issue in Hodel v. Irving.

Ben Barros

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August 29, 2006 in Estates In Land, Recent Scholarship | Permalink | Comments (4) | TrackBack (0)

Tuesday, June 27, 2006

Is this really the end of Feudalism?

Sark Following up on my post on Robert Palmer's English Law in the Age of the Black Death, I thought I'd post a little more on feudalism.  An island I’d never heard of, Sark, has just ended its “feudalism.”  (Listen to NPR's story here.) It is in the English Channel and is “owned by the Queen of England but not part of Great Britain.”  Whatever that means.  Anyway, the Parliament has consisted of forty Sark landowners.  Now, it’s coming to an end.  From here on out, there will be elections for the Parliament and 12 members will be landowners; 12 memebers will be non-owners.  What is the world coming to?  The Seigneur of Sark will maintain a few heredity rights–the right to keep the only unspayed dog on the island and the right to whatever washes up on the shore between the low and high watermark.

I seem to recall debate about whether feudalism ever existed, led by Susan Reynolds, Fiefs and Vassals. (Useful reviews here).  Sounds like there are some pretty interesting resonances on Sark with the anti-rent movement in the upstate New York in the 1830s-1860s.

Alfred L. Brophy

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June 27, 2006 in Estates In Land | Permalink | Comments (0) | TrackBack (0)