Report of the Committee on Recent Literature Concerning
Real Estate Law
Julia P. Forrestor
Professor of Law
Southern Methodist University
Chair of Committee
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The Quarterly Report includes as a regular feature the report of this
committee, which reviews books and articles of interest to a national audience
of real estate practitioners. Contributors to the following report include
these members of the committee:
Contributors to this report:
Joseph L. Coleman
Douglas E. Cornelius
Robert D. Drinkwater
Robert S. Frey
Christopher C. Gilmore
Jennifer L. Gomberg
David J. Harwood
Elizabeth J. Huttar
Michael G. Kerman
Claude McCane Moncus
David R. Naka
Charles I. Nelson
Jonathon K. Newsome
Wilson H. Oldhouser III
Pascal Paul Piazza
George W. Tate III
Robert P. Thibeaux
Carl W. White
Caryl A. Yzenbaard.
Edward S. Adams & James L. Baillie,
Privatization Solution to the Legitimacy of Prepetition Waivers of the
Automatic Stay, 38 Ariz. L. Rev. 1 (1996).
This article focuses on the importance
of the automatic stay in bankruptcy proceedings. The authors argue in favor
of upholding waivers of the automatic stay by debtors based on an economic
Baxter Dunaway, Effect of the Bankruptcy
Reform Act of 1994 on Real Estate, 30 Real Prop., Prob. & Tr. J.
The author explains how changes
in the Bankruptcy Reform Act of 1994 affect various issues relating to
real estate interests. He begins by noting how some of the new changes
benefit debtors by making Chapter 13 more attractive and concludes by pointing
out how some of the substantive changes benefit creditors.
Robert L. Lippert, Determining the
Appropriate Cramdown Rate in Single-Asset Bankruptcies, 24 Real Est.
L. J. 255 (1996).
The authors tackle the controversial
issue of determining a cramdown rate during a bankruptcy. They review all
of the main methods for determining the cramdown rate, pointing out the
problems associated with each method.
Juliet M. Moringiello, A Mortgage
By Any Other Name: A Plea For the Uniform Treatment of Installment Land
Contracts and Mortgages Under The Bankruptcy Code, 100 Dick. L. Rev.
This article discusses the status
of installment land contracts when a buyer files for bankruptcy. The author
argues that installment land contracts should be treated in the same manner
as purchase-money mortgages.
John C. Murray, The Lender's Guide
to Single Asset Real Estate Bankruptcies, 31 Real Prop., Prob. &
Tr. J. 393 (1996).
Chapter 11 single asset entity bankruptcies
are the subject of this article. The author explores the various strategies
and options for secured creditors as well as the available alternatives
to cramdown plans.
II. CONDOMINIUMS, TIMESHARES AND HOMEOWNER’S ASSOCIATIONS
Gary S. Moore, Notice and Consent
to the Financial and Legal Obligations in Property Owners' Associations,
25 Real Est. L. J. 378 (1997).
The author analyzes the debate about
whether purchasers of real property consent or are coerced to become members
of property owner's associations when buying real estate. He further explains
the impact that the increase in required disclosures has had on this debate.
III. CONVEYANCING AND TITLES
James Bruce Davis, More Than They
Bargained For: Are Title Insurance Companies Liable In Tort For Undisclosed
Title Defects?, 45 Cath. U. L. Rev. 71 (1995).
This article discusses the potential
liability in tort that title insurance companies may have to insured owners
and lenders for defects that were not disclosed on the title insurance
policy. The author argues that title insurance companies are generally
not liable in tort and that aggrieved owners or lenders are limited by
the remedies enumerated in the title policy for potential causes of action.
John W. Fisher, The Scope of Title
Examination in West Virginia: Can Reasonable Minds Differ?, 98 W. Va.
L. Rev. 449 (1996).
This article discusses the impact
that substantive law has on title examination. Specifically, it argues
that substantive law determines which documents are relevant in a title
search and thereby governs the perimeters of a title examination.
Thomas C. Homburger & Brian P. Gallagher,
Pay or Not to pay: Claiming Damages For Recharacterization of Sale Leaseback
Transactions Under Owner's Title Insurance Policies, 30 REAL
PROP., PROB. & Tr. J. 443 (1995).
The article is a practical guide
for title insurers dealing with underwriting sale leaseback transactions.
It examines the risks of recharacterization and the accompanying liability.
IV. ECOLOGY AND ENVIRONMENTAL CONTROL
Douglas A. Henderson, Start Spreading
the News: EPA and HUD Lead-Based Paint Disclosure Regulations, 25 Real
Est. L. J. 244 (1997).
This article discusses the scope
and applicability of the recently issued regulations dealing with lead-based
paint disclosure. The enforcement and exclusions of the new regulations
are also examined.
Katherine A. Pancak et al., Legal
Duties of Property Owners Under Lead-Based Paint Laws, 24 Real Est.
L. J. 7 (1995).
The article begins by explaining
the hazards of lead-based paint, and then explains the legal obligations
property owners have to reduce the dangers of lead-based paints. It concludes
by offering practical advice to property owners seeking to avoid liability
due to lead-based paint injuries.
Symposium, The Endangered Species Act and Private Property, 32 Land
& Water L. Rev. 479 (1997).
The University of Wyoming's Institute for Environment and Natural
Resources Board held its forum on the Endangered Species Act in May 1996.
Topics of the papers presented there included: "The Evolution and Use of
the Endangered Species Act", "Judicial Application of the Endangered Species
Act and the implications for Takings of Protected Species and Private Property",
"Biological Effectiveness and Economic Impacts of the Endangered Species
Act", and "The Intent and Implementation of the ESA: A Matter of Scale".
V. EMINENT DOMAIN, INVERSE CONDEMNATION
James E. Holloway & Donald C.
Guy, Land Dedication Conditions and Beyond the Essential Nexus: Determining
"Reasonably Related" Impacts of Real Estate Development Under the Takings
Clause, 27 Tex. Tech L. Rev. 73 (1995).
The Supreme Court's essential nexus
test for determining whether a municipality has a legitimate interest in
imposing a land dedication condition or fee on real estate developers is
the subject of this article. The authors highlight the increased protection
the Supreme Court gave property rights in Dolan v. City of Tigard.
They conclude that municipalities need to do a better job of establishing
justifications for land dedication conditions and fees when real estate
projects are providing beneficial developments.
Kris W. Kobach, The Origins of Regulatory
Takings: Setting the Record Straight, 1996 Utah L. Rev. 1211 (1996).
The article discusses the regulatory
takings doctrine from a historical point of view. The author begins by
challenging the widely held belief that regulatory takings jurisprudence
began with Pennsylvania v. Mahon in the 1920's, suggesting that
it really originated as early as the 1810s. The author reviews the decisions
of several antebellum courts, arguing that they provide the proper historical
context through which to view the regulatory takings debate, and that the
earlier decisions provide a more coherent line of jurisprudence.
Ronald J. Krotoszynski, Jr., Fundamental
Property Rights, 85 Geo. L. J. 555 (1997).
This article discusses the Supreme
Court's recent broadening of the Takings Clause, particularly with respect
to regulatory takings. The author argues that the Supreme Court's current
liberty-based substantive due process doctrine should extend to protect
fundamental property rights, which the author argues the federal courts
cannot refuse to recognize.
Frona M. Powell, The Public Trust
Doctrine: Implications for Property Owners and the Environment, 25
Real Est. L. J. 255 (1997).
This article examines the intersection
of the public trust doctrine with the Fifth Amendment's Takings Clause.
Specifically, the author considers the the role the public trust doctrine
has in the current debate over how far the government can go in regulating
private property to protect the public environment.
VI. HOUSING, FAIR HOUSING AND ADA
Eugene R. Gaetke & Robert G. Schwemm,
Lawyers and Their Private "Clients" Under the Fair Housing Act, 65
Geo. Wash. L. Rev. 329 (1997).
The 1988 Fair Housing Amendment
Act ("FHAA") authorized government lawyers to prosecute housing discrimination
cases on behalf of private citizens. Government lawyers representing private
citizens in this manner often find themselves caught between representing
their private clients and the government. In many of those cases, the private
clients find themselves abandoned. This article discusses how the rules
of professional conduct operate when these conflict situations arise, focusing
particularly on the problem created by the FHAA and how it can be resolved.
Marc T. Smith et al., Inclusionary
Housing Programs: Issues and Outcomes, 25 Real Est. L. J. 137 (1996).
Due to limited budgets with which
to address housing problems, governments are looking for the best alternatives.
This article examines the political, economic, and historic aspects of
inclusionary housing by focusing on how the programs have worked in Montgomery
County, Maryland, as well as in New Jersey and California.
VII. LANDLORD AND TENANT
Francis N. Matroianni, Caveat Lessor:
Courts' Unwillingness to Find Implied Covenants of Continuous Use in Commercial
Real Estate Leases, 24 Real Est. L. J. 236 (1996).
This article deals with the situation
that arises when shopping mall tenants choose to cease operations before
a lease expires due to deteriorating business conditions. Often the landlords
in those situations are not happy to merely receive rent, but wish to evict
the tenant and seek either damages or an injunction which would force the
tenant to use to the property in the agreed upon manner. Landlords often
try to use a covenant of continuous use to enforce their sought after relief.
The author discusses the covenant of continuous use and the chances landlords
have of succeeding when trying to enforce an implied one.
Michael Pappas, How to Conduct a Lease
Audit, 24 Real Est. L. J. 247 (1996).
Due to the increased number of tenants
who question their landlord's annual increase in rent that is normally
justified as a cost of living increase, the demand for lease consultants
has risen. This article is a practical guide for how to conduct a lease
audit to determine if the increase proposed by the landlord is fair.
Georgette C. Poindexter, Estopped
in the Name of Waiver: The Role of Waiver and Estoppel in Commercial Leasing,
25 Real Est. L. J. 267 (1997).
The article begins by defining estoppel
and waiver as they are used in the commercial leasing context. It then
analyzes the role of both waiver and estoppel on a landlord's ability to
terminate a tenant's lease after a default. The author concludes by suggesting
methods landlords can use to avoid application of estoppel and waiver.
VIII. MORTGAGES AND LIENS
Morton P. Fisher, Jr. & Richard
H. Goldman, The Ritual Dance Between Lessee and Lender- Subordination,
Nondisturbance, and Attornment, 30 Real Prop., Prob. & Tr. J. 355
The authors examine the common-law
underpinnings of subordination, nondisturbance, and attornment agreements
and then discuss the case law relevant to those agreements. The authors
also discuss the agreements in the context of bankruptcy and foreclosure.
Joseph Philip Forte, A Capital Markets
Mortgage: A Ratable Model For Main Street and Wall Street, 31 Real
Prop., Prob. & Tr. J. 490 (1996).
The author examines Wall Street's
role in the commercial real estate markets and discusses the creation of
the Capital Markets Mortgage, which is a template for commercial mortgages.
Norman Geis, Escape From the 15th
Century: The Uniform Land Security Interest Act, 30 Real Prop., Prob.
& Tr. J. 289 (1995).
The author argues that all states
should adopt the Uniform Land Security Interest Act. To support this conclusion,
the author examines the status of current state laws and discusses alternatives
for reforming them.
James B. Hughes, Jr., Taking Personal
Responsibility: A Different View of Mortgage Anti-Deficiency and Redemption
Statutes, 39 Ariz. L. Rev. 117 (1997).
The author argues that the mandatory
statutory right of redemption and anti-deficiency legislation are symptomatic
of America's unwillingness to require personal responsibility for individual
actions, which results in a moral detriment for society at large. The author
suggests that government has provided too much consumer protection, and
proposes a system which would offer less protection from rights of redemption
and anti-deficiency legislation, but would offer more in terms of mandatory
Stephen F. J. Ornstein, Examining
the Effect of New Legislation on Consumer Protection for "High Cost Mortgages",
25 Real Est. L. J. 40 (1996).
This article describes how the Homeownership
and Equity Protection Act of 1994 addresses the problem of "reverse redlining".
There is a specific emphasis on how the Act is designed to protect consumers
involved in home equity transactions from predatory loan practices.
Robert Weill & Pelis Thottathil,
Property: Revisiting Takings, Assumptions, and Reverse Mortgages, 24
Real Est. L. J. 333 (1996).
The authors argue that the Supreme
Court's decision in Fidelity Federal Savings and Loan Ass'n v. de la
Cuesta created unreasonable restraints on the alienation of property.
Specifically, they argue that the restrictions placed on the ability to
assign a mortgage constitute a taking within the meaning of the Fifth Amendment.
IX. PLANNING, ZONING AND LAND USE
Melissa Waller Baldwin, Conservation
Easements: A Viable Tool For Land Preservation, 32 Land & Water
L. Rev. 89 (1997).
The article discusses the options
available to people who want to keep land in its current state for sentimental,
scenic, or recreational reasons. While several options for private citizens
and groups are discussed, the focus is on conservation easements, since
they are commonly available statutorily, and are easy to use. The author
points out the advantages and disadvantages of conservation easements as
well as several components that are useful to include in conservation easements.
Gerald Korngold, Comparing the
Concepts of "Property" and "Value" in Real Estate Law and Real Property
Taxation, 25 Real Est. L. J. 7 (1996).
The article analyzes the public
policies and practical concerns that influence the judicial definitions
of property and value. The author argues that the benefit of context-based
meanings of the two terms must be balanced against the social costs of
Willys H. Schneider, U.S. Tax Rules
Affecting Foreign Investors in REITS, 24 J. Real Est. Tax'n 40 (1996).
The author examines the operation
of United States tax rules with regard to foreign owners of equity interests
in REITS. In addition to examining the Internal Revenue Code's take on
REITS, the author analyzes the impact of various international tax treaties
on foreign investors.
Robert S. Siegel and Mary B. Doyle, Sales
of Real Estate With Contingent Payment Debt, 24 J. Real Est. Tax'n
The article analyzes recently promulgated
IRS regulations which address the federal income tax treatment of debt
instruments that provide for contingent payments. Specifically, the article
focuses on the impact these regulations have on real estate transactions
involving nonpublicly traded debt.
Gregory F. Wilder and William M. Shaheen,
Considerations in Eminent Domain Proceedings, 24 J. Real Est. Tax'n
This article analyzes some of the
tax issues involved in eminent domain proceedings. It focuses on whether
a transfer of property under eminent domain qualifies for tax deferral
and on the tax treatment of professional fees incurred in condemnation
XI. VENDOR AND PURCHASER, REAL ESTATE CONTRACTS AND BROKERS
Roy T. Black, Client Liability
to Real Estate Brokers: From Contract to Punitive Damages, 25 Real
Est. L. J. 78 (1996).
This article discusses the various
theories through which clients can become liable to real estate brokers,
including agency, contract, and tort theories.
Karen Eilers Lahey & David A. Redle,
Ohio Experience: The Effectiveness of Mandatory Real Estate Disclosure
Forms, 25 Real Est. L. J. 319 (1997).
The authors use an empirical study
conducted in Ohio to analyze the effectiveness of disclosure requirements.
They further analyze the evolution of liability and the development of
disclosure laws, while discussing the effectiveness of disclosure legislation
in jurisdictions outside Ohio.
Jay M. Feinman, Economic Negligence
in Residential Real Estate Transactions, 25 Real Est. L. J. 110 (1996).
The article discusses the liability
of third-party participants, such as pest inspectors and surveyors, in
real estate transactions. The author argues that these different instances
of liability can best be understood by viewing them as apart of the field
of law known as economic negligence.
Katherine A. Pancak et al., Real Estate
Agency Reform: Meeting the Needs of Buyers, Sellers and Brokers, 25
Real Est. L. J. 345 (1997).
The article examines the recent
changes to the laws affecting real estate brokerage relationships. The
authors argue that the changes are necessary and analyze the various legal
systems created to address the problems. They also summarize the agency
legislation of all fifty states.
Katherine Pancak et al., Residential
Disclosure Laws: The Further Demise of Caveat Emptor, 24 Real Est.
L. J. 291 (1996).
The article discusses residential
real estate disclosure laws. It first examines the legal requirements for
brokers and then moves into a discussion of the legal requirements for
sellers. After examining the economic and legal implications of requiring
mandatory seller disclosure, the authors finish with some practical tips
for all parties involved in a residential real estate transaction.
XII. WATER, WATER RIGHTS AND WETLANDS
Michael C. Blumm & Thea Schwartz,
Lake and the Evolving Public Trust in Western Water, 37 Ariz. L. Rev.
The authors analyze the public trust
doctrine in Western water law by reviewing the Mono Lake case and
its effects on the Mono Lake Basin. While a large part of the discussion
revolves around the public trust doctrine's role in reallocating water
supplies in the San Francisco Bay-Delta and the American River, attention
is also given to the public trust in water in other Western states.
Gregory S. Weber, Articulating the
Public Trust: Text, Near-Text and Context, 27 Ariz. St. L. J. 1155
The article analyzes the administrative,
legislative, and judicial articulation of the public trust doctrine, as
it has been applied to diversions from surface waterways in California
following the California Supreme Court's decision in National Audubon
Society v. Superior Court. The author discusses the impact that National
Audubon has had on the development of the public trust doctrine in
California, and concludes that California has entered a new era of trust-induced
June Carbone, Dukeminier and Krier
as Narrative: The Stories We Tell in the First Year Property Course,
32 Hous. L. Rev. 723 (1995).
The author discusses the role of
storytelling as a methodology for teaching law school courses. Specifically,
she discusses the narrative that Dukeminier and Krier use to tie their
property casebook together in a way that makes for a compelling and cohesive
story. The author compares Dukeminier's and Krier's presentation with critiques
presented in their third edition and Singer's new casebook before discussing
the possibilites for teaching law in a less linear fashion.
Bradley R. Carter, Reviewing an Appraisal:
An Attorney's Guide to Preparing for Battle, 25 Real Est. L. J. 28
The article explores the importance
of written reports prepared by appraisers before they testify as expert
witnesses. It also provides attorneys who are preparing expert witnesses
in the area of appraisals with a guide as to how to best prepare them to