PropertyProf Blog

Editor: Stephen Clowney
Univ. of Arkansas, Fayetteville

Sunday, October 6, 2013

Call for Proposals: Professor's Corner Webinars

As you may recall from my monthly posts regarding Professor's Corner, these monthly webinars are sponsored by the Legal Education and Uniform Law Group of the ABA's Real Property Trust and Estate Law Section (ABA-RPTE).  As the current chair of the Legal Education committee, I'd like to invite all readers of PropertyProf Blog to contact me with proposals for future Professor's Corner webinars. 

The general format is that three law professors discuss recent cases or legal developments of interest to property professors, real estate practitioners, and/or trusts and estates practitioners.  These webinars are a great way to bring together the academic and practitioner communities around emerging developments in the law. 

Feel free to propose a topic and a full panel of professors, or to simply propose a topic.  We are very interested in involving a broad array of academics in these webinars and particularly to provide a platform to more junior faculty. 

If you are more generally interested in involvement in the ABA-RPTE section and specifically the Legal Education Committee (and you should be!), feel free to contact me as well.

Tanya Marsh

October 6, 2013 in Miscellaneous | 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)

Monday, January 7, 2013

This Wednesday's Professor's Corner Call -- Fracking!

As you may recall, Professors’ Corner is a monthly FREE teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of three law professors who discuss recent real property cases of interest to real estate practitioners and scholars. 

The January 2013 program, moderated by Professor Wilson Freyermuth of the University of Missouri School of Law, is a particularly timely program entitled "Shale Gas and Tight Oil: A “Fracking” Primer for Real Property Lawyers.” This panel will feature Professors Keith Hall, Blake Watson, and Hannah Wiseman, three scholars whose recent work has focused on various legal issues associated with hydraulic fracturing.

Wednesday, January 9, 2013
12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific)
Call-in number: 866-646-6488
Passcode: 5577419753

Keith Hall is an Assistant Professor and the Director of the Mineral Law Institute at the LSU Law Center. Professor Hall will provide a summary of what hydraulic fracturing is, as well as a brief overview of the various legal issues raised by hydraulic fracturing (including water sourcing, groundwater contamination, disclosure of composition of fracturing fluids, disposal of flowback, and state vs. local preemption issues).

Blake Watson is a Professor at the University of Dayton School of Law. Professor Watson will address recent developments in groundwater contamination litigation, specifically focusing on: (1) the possibility that courts will find hydraulic fracturing to be an abnormally dangerous activity subject to strict liability; (2) the strategy of defendants to cut off discovery and terminate litigation prior to summary judgment through the use of "Lone Pine" case management orders; and (3) the ability (or inability) of defendants to keep terms of settlements from the public (at issue in the recent Hallowich decision from Pennsylvania).

Hannah Wiseman is an Assistant Professor at the Florida State University College of Law. Professor Wiseman will address recent regulatory changes, including rules addressing stormwater/erosion permitting for well site construction; setbacks of well sites from homes, surface water, and other resources; spill prevention, containment, and clean-up; and the sparse state laws on wildlife issues associated with well development. She also will briefly explore changes in states’ funding of agencies, staffing and training practices, and enforcement of laws at well sites.

Readers of PropertyProf Blog are invited to attend. 

Tanya Marsh

January 7, 2013 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Monday, December 31, 2012

As if I needed another reason to love cemeteries

2012-03-12 14.46.09

I don't know what to say about the idea that the lichen which grow on gravestones in the Northeast are biologically immortal. 

That's.  Just.  Poetically.  Awesome.

(By the way, anybody recognize the cemetery in the above picture?  I'm channeling Al Brophy.)

Tanya Marsh

December 31, 2012 in Miscellaneous | Permalink | Comments (3) | TrackBack (0)

Tuesday, December 11, 2012

December Professor's Corner Call: Impact Fees and Assessments

Please join us for this month’s Professors Corner call this Wednesday, December 12, at 12:30pm Eastern (11:30am Central, 9:30am Pacific).

Call-in number: 866-646-6488

Passcode: 5577419753

Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of law professors who discuss recent real property cases of interest to real estate practitioners and scholars.   This month’s program is entitled "The Future of Impact Fees and Growth Management."  The panel will feature Professor Julian Juergensmeyer of the Georgia State University School of Law and Professor Alan Weinstein of the Cleveland-Marshall Law School. 

Prof. Weinstein, who is Associate Professor & Director of the Law & Public Policy Program at Cleveland-Marshall, will discuss recent cases from Iowa, Mississippi, Florida, and Ohio that have re-examined the legal status of development exactions and the ability of local governments to use impact fees to finance infrastructure improvements. These cases include Drees Co. v. Hamilton Township (Ohio Supreme Court) and Koontz v. St. John's River Water Mgmt. Distr. (Florida Supreme Court, on which the U.S. Supreme Court has recently granted certiorari). Other relevant decisions include Iowa Home Builders Ass’n of Greater Des Moines v. City of W. Des Moines, 644 N.W.2d 339 (Iowa 2002); Mayor of Ocean Springs v. Homebuilders Ass’n of Miss., Inc., 932 So. 2d 44 (Miss. 2006); McCarthy v. City of Leawood, 894 P.2d 836 (Kan. 1995); Hollywood, Inc. v. Broward County, 431 So.2d 606 (Fla. Dist. Ct. App. 1983); and Call v. City of West Jordan, 606 P.2d 217 (Utah 1979).

Prof. Juergensmeyer, who holds the Ben F. Johnson, Jr. Chair at Georgia State, will discuss the relationship between the financial crisis and recession and impact fees and assessments. Changing demographic and economic conditions are reshaping development patterns. He will discuss these trends, as well as the need for local governments to create alternatives to facilitate the financing of future development.

This will be a really interesting call, and you'll either learn a lot about impact fees, or gain new knowledge from two experts!

Tanya Marsh

December 11, 2012 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Monday, November 12, 2012

Professors' Corner Call -- November 14th

Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of three law professors who discuss recent real property cases of interest to real estate practitioners and scholars.

Wednesday, November 14, 2012
12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a..m. Pacific)
Call-in number: 866-646-6488
Passcode: 5577419753

November 2012’s program, moderated by Professor Tanya Marsh of the Wake Forest University School of Law, features recent developments in Title Insurance and Title Services.

Professor Joyce Palomar, the Kenneth E. McAfee Chair and Presidential Professor at the University of Oklahoma College of Law, will discuss MacDonald v. Old Republic Nat. Title Ins. Co., 2012 WL 3090045 (D.Mass.), the jurisdictional split on whether title insurers have a duty to disclose of-record title defects, and the contrast between title insurers’ litigation stance that they have no duty to disclose title defects and their advertising that “we discover and disclose to you those items that will remain against the property.”

Professor Barlow Burke is the John S. Myers and Alvina Reckman Myers Scholar and Professor of Law at American University's Washington College of Law. Professor Burke will discuss the "measure of damages" condition in an owner’s policy when the property has declined in value since the date of the policy issued for the purchase price paid by the owner.

Professor Eileen M. Roberts is the Austin J. Baillon and Caroline M. Baillon Professor of Real Estate Law at William Mitchell College of Law. Professor Roberts will discuss recent cases involving title companies (and attorneys) in their roles as escrow-holders and closing agents.

Please join us!

Tanya Marsh

November 12, 2012 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Sunday, October 14, 2012

Testimonial to Pat Randolph


Since I know that not all Property Profs also subscribe to the DIRT listserv (although you should), I wanted to share that fellow Property Prof and founder of DIRT, Professor Patrick Randolph of University of Missouri at Kansas City, passed away on October 12th.  Pat Randolph has had an enormous impact on property professors and real estate lawyers across the country for decades. 

Although I did not know Pat Randolph well, I've seen him at least once a year, usually twice a year, at meetings of the American Bar Association Real Property, Trust and Estate Law Section.  He was always warm, funny, and kind to me.  As his constant presence at ABA meetings demonstrates, Pat worked hard to create and maintain connections between academia and the practicing bar.  The DIRT listserv is one example of those efforts.  He will be missed.

Here's a little more detail about Pat's contributions to the academy and practice, courtesy of his friend and colleague, Professor Roger Bernhardt of Golden Gate University:

It is not easy to adequately describe Pat's enormous contributions to legal education, real estate law and the legal community. Dirt arose as an offshoot of the ABA's Quarterly Development Report, which Pat assembled and provided to us for years, and it was the best way I knew of keeping up with developments outside my turf.  Later, when Pat got Dirt underway, it was the Daily Developments' fully briefed and thoughtfully analyzed cases that he provided for us almost every day of the year - that quickly became our bread and butter source of information.  I cannot estimate how much discipline and how many hours that Pat had to donate to keep Dirt vibrant for so many years.
Pat also sat on the Executive Committee of the Real Property Probate & Trust Section of the ABA, founded a Legal Education Section there, and pried loose a Real Estate Transactions Section out of the AALS Property Section. He was at the same time going around the country giving his "Top Ten" talks to numerous bar groups, as well as being an entertaining speaker at frequent panels for the ABA, ACMA, ACREL, and PLI.  On top of all that Pat wrote Friedman on Leases and played a pioneering role in starting a real estate legal system in China, constantly going back and forth there and accommodating their students in his house in Kansas City) and writing books and journals on it.
What I particularly valued most of Pat's many activities was his effort to bridge the gap between law school academics and the practicing real estate bar. Before Pat, property professors wanted nothing to do with real estate practice, and lawyers typically couldn't even remember the name of who taught the course to them in law school.     Pat got the two groups interacting with each other, for which I am truly grateful.
Tanya Marsh

October 14, 2012 in Law Schools, Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Saturday, October 13, 2012

Missouree? Missouruh?


My dad grew up in southeast Nebraska (Verdon, to be precise), which is less than 20 miles from the Missouri state line.  When he pronounces the name of the neighboring state, he says "Missouruh."  So of course I say it that way too.  My sister, on the other hand, who attended law school at Washington University in St. Louis, pronounces it "Missouree".  This has been a friendly inter-familial battle for years, so I was happy to see the New York Times weigh in on the debate today.  Apparently, the pronounciation that Dad and I favor is "country" and "old fashioned."  My sister says it the way city folk do.

The Times mentions that Missouri is the only state where the natives differ on how to pronounce its name.  One theory is that Interstate 70 serves as a sort of Mason-Dixon line, those above the line pronounce it Missouree, and those below pronounce it Missouruh.  I'm no linguist, but when I moved to the Piedmont of North Carolina from Indianapolis, I recognized the accent -- its very similar to the accent that I heard visiting my Grandma in southeast Nebraska and driving through rural Missouri.  That area of Nebraska, like southern Missouri, and southern Indiana for that matter, was settled 150 years ago by folks from Virginia, North Carolina, Tennessee, and Kentucky.  Generations later, you can still hear the accent in the pronounciations of some words.

So, all that being said, I'm sticking with my pronounciation of "Missouruh." 

Tanya Marsh

October 13, 2012 in Miscellaneous | Permalink | Comments (2) | TrackBack (0)

Thursday, September 27, 2012

Sewage to Snow


So I didn't intend for this to be a theme today, but sewage has popped up again in the New York Times, which has reported that an Arizona ski resort will become the first ski resort in the world to use 100 percent sewage effluent to make artificial snow this season.  The U.S. Forest Service owns the land that the resort is located on and says that the sewage will be treated to a standard just below drinking water, and is already being used to irrigate golf courses, soccer fields and parks.

Tanya Marsh

September 27, 2012 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Combined Sewer Overflow Systems in American Cities

A few years ago, I toured a beautiful house in Indianapolis that I was interested in buying.  It was around 100 years old, beautifully restored with stained glass and wood floors and trim.  Big backyard that boarded Fall Creek, and a bargain for the price.  That is, until I walked into the backyard and the smell from the creek hit me -- the smell of an open sewer.  It had rained the night before and the storm sewers had overflowed, mixing with the sanitary sewers and dumping the combined wastewater into a sewage outflow point on Fall Creek just a few hundred feet from the house.  Even though I knew that Indianapolis's combined sewer outflow system functioned this way, I had no idea where the sewage outflow points were located.  I'm lucky that it rained that night, or I probably would have put an offer in on a house where my children would be constantly tempted to play in the adjacent creek, a creek tained by raw sewage on a regular basis.

The Indianapolis Star has an article today that maps the sewage outflow points in the city of Indianapolis.  Not surprisingly, since the system is old, the points are mostly located in the core city, which means that 2/3 are located in what are now poor neighborhoods.  Half of the 144 outflow points are located within a quarter-mile of a school, a park, or a recreation center. 

Indianapolis is under a federal mandate to clean up this system, at a cost of $3.1 billion, before 2025.  That's a long time for raw sewage to continue to pollute the city's creeks and rivers.  Amazingly, although there is a high level of awareness of this problem in the city, there is very little political will to speed up the solution, despite the public health risks.

Indianapolis is not alone.  According to the EPA, 772 cities have combined sewage overflow systems.  I'd be interested in learning whether any of these other cities are voluntarily cleaning up their systems before the EPA mandate deadline.

Tanya Marsh

September 27, 2012 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 18, 2012

Mark your calendar for upcoming Professors' Corner calls

As you know by now, Professors’ Corner is a monthly free teleconference sponsored by the American Bar Association Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of three law professors who discuss property cases of interest to practitioners and scholars.  I will post a more particular description of each month's program and call-in information closer to each call, but wanted to give you the heads up to mark your calendars for the next few calls.

Each call will be at 12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific).

Wednesday, October 10th -- The topic will be takings.  The panel will be Steven Eagle, Robert Hockett, and Dale Whitman.

Wednesday, November 14th -- The topic will be title insurance.  The panel will be Barlow Burke, Joyce Palomar, and Eileen Roberts.

Wednesday, December 12th -- The topic will be impact fees and assessments.  Thus far the panel includes Julian Conrad Juergensmeyer and Alan Weinstein.

Please mark your calendars to join us!  If you are interested in participating in a future Professors' Corner call, or if you have a suggestion for a topic, please let me know.

Tanya Marsh

September 18, 2012 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Monday, September 17, 2012

Georgia Closes State Archives

I love state archives.  They are valuable resources for my genealogical research, but they are also wonderful sources of information for those interested in issues at the convergence of legal history and property.  So I'm sad to see that budget cuts in Georgia have led to the closure of the state archives to the public.  You can read the governor's announcement here

After November 1, 2012, researchers will only be able to access the state archives by appointment, and then only to the extent that the remaining staff has the time to assist them.  If you have been putting off any research in the Georgia state archives, I suggest you head to Morrow before the end of October.

Tanya Marsh

September 17, 2012 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 12, 2012

Now is the winter of our discontent/made glorious summer by this sun of York

This news story has captured my interest for three reasons.  First, it involves human remains (they're everywhere!).  Second, it involves a key player in the War of the Roses.  Third, it involves one of Shakespeare's most well-known historical characters. 

English archaelogists are reporting that there is "strong evidence" that the remains of Richard III (2 October 1452 – 22 August 1485), the last member of the Plantagenet dynasty to rule England, have been found under a parking lot in London.  Richard is best known, perhaps inaccurately, for causing the deaths of his young nephews, the so-called "Princes in the Tower."  Made Lord Protector of England in 1483 following the death of his older brother King Edward IV, Richard took charge of the 12 year old Edward and 10 year old Richard, who both outranked him in the line of succession.  But the marriage of Edward IV and the boys' mother, Elizabeth Woodville, was declared invalid after the boys disappeared in Richard's care, and the next day, Richard III was crowned.  Unpopular and perceived as weak, Richard faced strong opposition from other nobles and died in 1485 at the Battle of Bosworth Field, when Henry Tudor's armies were triumphant.  Richard's death marked the last time a King of England was killed in battle and launched the still-fascinating Tudor dynasty.

Coolest thing about the video below -- there appear to be knights guarding the remains.  Real knights!


Tanya Marsh

September 12, 2012 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 11, 2012

September Professor's Corner Call

Professors’ Corner is a monthly free teleconference sponsored by the ABA Real Property, Trust and Estate Law Section's Legal Education and Uniform Laws Group. Each month’s call features a panel of three law professors who discuss property cases of interest to practitioners and scholars.  This month's call will be on Wednesday, September 12, 2012, at 12:30 p.m. Eastern time (11:30 a.m. Central, 9:30 a.m. Pacific).

Call-in number: 866-646-6488
Passcode: 5577419753

September 2012’s program is titled "Astrue v Capato: Its Implicatons for Estate Planners." The panel will address Astrue v. Capato, the recent Supreme Court decision addressing the rights of posthumously conceived children to receive Social Security benefits. Panelists will include Professor Kristine Knaplund (Pepperdine University School of Law), Professor Sheldon Kurtz (University of Iowa School of Law), and Carole Bass (SNR Denton, New York). 

This is a fascinating case and a great panel -- please join us!

Tanya Marsh

September 11, 2012 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 7, 2012

ABA-RPTE "Professors' Corner" Teleconference on Land Use Cases

The Legal Education and Uniform Laws Group of the ABA Real Property, Trust and Estate Law Section invites you to join the free monthly teleconference, Professors’ Corner, which each month features a panel of professors discussing one or more cases/issues of interest to real estate practitioners and scholars.

This month’s call is Wednesday, August 8, 2012, at 12:30pm Eastern, 11:30 am Central, 9:30am Pacific.

Call-in number: 866-646-6488
Participant Passcode: 5577419753

The call, moderated by Professor James Geoffrey Durham of the University of Dayton School of Law, features three land use scholars discussing recent cases of interest: 

Professor Stephen R. Miller, Associate Professor, University of Idaho College of Law, will be discussing a pending California case, San Francisco Beautiful v. City and County of San Francisco, et al. (Case No. CPF-12-512217, S.F., Cal., Superior Court). The suit challenges the City’s settlement agreement with Metro Fuel, LLC (“Fuel”) that would have ended litigation initially brought by Fuel. The conversation will first focus on procedural challenges made by the San Francisco Beautiful petition, then turn to Fuel’s constitutional claims in this and other cases (Metro Fuel LLC v. City of San Francisco, C 07-6067 PJH, 2011 WL 900318 (N.D. Cal. 2011); Metro Lights LLC v. City of Los Angeles, 551 F.3d 898 (2009), cert denied,  130 S. Ct. 1014 (2009).), which have resulted in some of the most salient discussions of Metromedia’s legacy, and the constitutionality of advertising sign regulation generally, in recent years.

Professor Troy A. Rule, Associate Professor, University of Missouri, Columbia, School of Law, will focus on SNPCO, Inc. v. City of Jefferson City, 2012 WL 987998, a recent Tennessee Supreme Court case analyzing a nonconforming use statute in the context of an annexation.  In SNPCO, the court refuses to allow a fireworks store to continue operating as a preexisting nonconforming use when a city annexes the store property, holding that Tennessee’s nonconforming use statute applies only to zoning and that annexation is not a zoning matter under the statute.  

Professor Kenneth Stahl, Associate Professor and Director, Environmental, Land Use, and Real Estate Law Certificate Program, Chapman University School of Law, will focus on Borough of Sayreville v. 35 Club, LLC, 33 A.3d 1200 (N.J. 2012), a recent New Jersey Supreme Court case discussing the constitutionality of municipal zoning regulations that restrict locations for adult businesses.  In 35 Club, the court held that in determining whether a municipality’s zoning ordinance restricting the location of adult businesses violates the first amendment, trial courts should look to whether adult businesses can find adequate locations elsewhere in the market area, including municipalities across state lines.

Copies of these opinions can be found on the Legal Education and Uniform Laws Group website,

Tanya Marsh

August 7, 2012 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Monday, July 30, 2012

Construction Sites in Austria and the United States

My first post about Vienna is rather pedestrian, but it constantly struck me how construction sites in the city were barely separated from the public, particularly compared to sites in the United States.  So here's my first set of comparative photos.

2012-07-26 08.34.08

This is a construction site on a heavily travelled path right outside the Schottenring U-Bahn and tram station near the center of Vienna.  I walked past this site on my way to class nearly every day.  Please note how you have to walk or bike in a five or so foot wide path between the curb and a piece of heavy equipment that was being operated at the time (and kept swinging into that path).  I could have taken dozens of photos showing a complete lack of separation between pretty heavy construction work (open pits, jackhammers making concrete fly, hot asphalt being applied to the sidewalk) and the public. 

(Continued after the jump)

Continue reading

July 30, 2012 in Miscellaneous | Permalink | Comments (1) | TrackBack (0)

July in Vienna

I just returned from spending July in Vienna, teaching a course on the Financial Crisis in the United States and Europe to a class of 10 -- 4 from Wake Forest Law, 1 from SMU Law, and 5 from the University of Vienna law program.  Really incredible experience. 

Teaching American and European students about the financial crisis while the crisis in the EuroZone continues to unfold was a fascinating experience. 

From a property scholar's perspective, Vienna is an amazingly inspirational city.  1000+ years of history.  The former capital of a multi-national empire, attacked and partially destroyed numerous times over the centuries.  The Baroque architecture makes the city look like a wedding cake.  Incredible public spaces -- parks, wide boulevards, performance spaces, museums and palaces.  A city with a strong and well-functioning public transportation system, plus dedicated bikepaths and walking paths literally everywhere.  Churchs, and cemetries, and catacombs galore. 

I can post more about the class if anyone is interested.  I will definitely post more about the property topics that Vienna constantly inspired me to think about.

Tanya Marsh

July 30, 2012 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 22, 2012

Adverse Possession, Takings and the State

William Marra, Harvard Law School, has posted Adverse Possession, Takings, and the State on SSRN.

Here's the abstract:

Normally, the government may not seize private land without paying for that land. Yet it turns out that governmental bodies sometimes avail themselves of the laws of adverse possession, taking title to private land without paying the landowner. This phenomenon, largely ignored by the scholarly literature, raises two questions. First, should the government be allowed to adversely possess land in the same manner as private individuals? Second, when the government commits adverse possession, does this constitute a constitutional “taking” that requires the payment of just compensation? These two questions are of practical importance because they affect the resolution of numerous property claims, and they are of theoretical significance because they implicate both the appropriate scope of private property rights and the proper relationship between the individual and the state. Part I provides an introduction to adverse possession, and Part II studies the law of government adverse possession, detailing how nearly every jurisdiction permits the government to adversely possess private land in the same manner as private individuals. But as Part III demonstrates, government adverse possessors are not similarly situated to private adverse possessors, and the laws of adverse possession are built on a trio of assumptions — that the landowner has a property rule entitlement to her land, that the trespasser develops robust reliance interests, and that society’s primary interest is in quieting title — that do not necessarily hold when the government is the adverse possessor. Part IV concludes that because the current rules of adverse possession incentivize government trespass upon private land, special rules should apply to the government. When the government adverse possessor trespassed in good faith, a longer statute of limitations should apply; when the government trespassed in bad faith, it should be entirely denied the right to adverse possession. One quick fix to the problem, proposed by a federal court and endorsed by some commentators, is to call government adverse possession a constitutional taking and require the state to pay just compensation. Part V explains that the problem cannot so easily be wished away, and contends that the text of the Constitution, its history, and Supreme Court precedent all suggest that government adverse possession is not a taking. The solution to the problem presented by government adverse possession rests in righting property law, not distorting constitutional law.

By way of comparative comment:

  • It is interesting how "takings" issues are such a significant part of constitutional discourse in the US, and in my nearer neighbour, Australia.  New Zealand, without a formal written constitution, and without any "takings" provision, is in a different world in this sense.  I have recently been exploring how the absence of this regime makes it easier to "propertise" resources (and also regulate them without having to worry about compensation issues) for a forthcoming article for the New Zealand Universities Law Review.
  • Adverse possession was a part of my NZ Land Law course, as it remains part of US property courses.  In New Zealand the law is statute based, and there would be very few adverse possession cases in New Zealand: one of the recent ones concerned a fairly isolated block of farm land with a fence in the wrong place (rather than the "squatter's rights" (of an abandoned house, for example) I imagined at law school).
  • Marra hasn't steered away from takings.
  • An empirical study of adverse possession (comparative, Commonwealth or otherwise) would seem to deserve attention.
  • Images

Thomas Gibbons

May 22, 2012 in Adverse Possession, Articles, Miscellaneous, Property Theory, Recent Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, May 21, 2012

"so that every poor man may have a home"

I love talking about the 1862 Homestead Act in Property, but I'm always amazed at how little students know about what I regard as a pivotal law in American history.  (It was personally significant too, as nearly all of my great-great-great-grandparents earned their Nebraska farms under to the Homestead Act or the prior Military Bounty Land Act of 1855.) 

The Disunion series in the New York Times has a fascinating piece today on the history and political rhetoric surrounding the passage of the Homestead Act, including President Lincoln's argument to “[cut] up the wild lands into parcels so that every poor man may have a home.”  So much of the rhetoric still resonates today in discussions regarding Occupy Wall Street, and whether the government should encourage homeownership.

By the way, if you are in Washington, D.C., you can visit the National Archives and view the original documents filed by homesteaders perfecting their claims.  Fascinating stuff.  For example, I found the original handwritten affidavit by my fourth great-grandfather (Jesse Pollard) testifying that my third great-grandfather (Pharagus Pollard) had managed to get 35 of the 160 acres in Richardson County, Nebraska under cultivation in his first year of homesteading, as well as construct a dwelling house that had doors, windows, and a floor.  According to tax and census records, Pharagus did not have a mule, horse, or ox on the farm, so he must have either borrowed the necessary beasts (which is unlikely) or done the work under his own power.  Unfortunately, Pharagus died in the Civil War and left his widow and young children to finish improving the farm. 

Kinda puts grading Property exams in perspective. 

Tanya Marsh

May 21, 2012 in Miscellaneous | Permalink | Comments (0) | TrackBack (0)

Thursday, May 17, 2012

The Dangers of Unmarked Graves

Sometimes, when digging the foundation for a new structure, you find a few unmarked graves.  Or 1400+ unmarked graves. 

Tanya Marsh

May 17, 2012 in Land Use, Miscellaneous, Religious Land Use | Permalink | Comments (0) | TrackBack (0)