Real Estate & Property Law

Min App: Minnesota Constitution's Takings Clause Provides Greater Protection For Property Owners

Posted on November 10, 2010
We use "takings," "Takings Clause" and "Fifth Amendment rights" as a convenient shorthand for the right of property owners to object or obtain compensation when a government act has so interefered with their rights that it might as well have...

SCOTUS Oral Argument Recording And Transcript In CFC Jurisdiction Case

Posted on November 06, 2010
Last week, the U.S. Supreme Court heard oral arguments in United States v. Tohono O'odham Nation, No. 09-846 (cert. granted Apr. 19, 2010), the case involving the scope of the Court of Federal Claims' subject matter jurisdiction. The transcript of...

Texas: Public's Beachfront Easement Does Not "Roll" With The Vegetation Line

Posted on November 05, 2010
Just in: the Texas Supreme Court has issued an opinion in Severance v. Patterson, No. 09-0378 (Nov. 5, 2010). In that case, the court ruled on "whether private beachfront properties on Galveston Island's West Beach are impressed with a right...

Cal Ct App: Condemnor's Offer Of 40% Of Compensation Ultimately Awarded Is Per Se Unreasonable

Posted on November 01, 2010
Professor Gideon Kanner has a recurring feature on his eminent domain law blog Gideon's Trumpet called "Lowball Watch" in which he points out cases in which the condemnor's offer is below -- way below-- the eventual compensation awarded to a...

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Cert Denied In Hawaii Beach Taking Case

Posted on November 01, 2010
The U.S. Supreme Court has declined to review Maunalua Bay Beach Ohana 28 v. State of Hawaii, 122 Haw. 34, 222 P.3d 441 (Haw. Ct. App. 2009). That's the case in which the Hawaii Intermediate Court of Appeals concluded that...

One More Amicus Brief In Columbia Eminent Domain Case: Court Should Clarify "Pretextual Taking"

Posted on October 28, 2010
The Institute for Justice, the Cato Institute, and the Beckett Fund for Religious Liberty have weighed in on Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010), the case in which upper...

Wash. App: "I Don't Care!" - Regulatory Takings Are About Impact, Not Justification

Posted on October 28, 2010
Remember that now-iconic scene in The Fugitive, where Harrison Ford's character has turned the tables on Tommy Lee Jones, and while holding Jones at gunpoint proclaims, "I didn't kill my wife!" Jones' response -- "I don't care!" -- could just...

Another Amicus Brief In Columbia Eminent Domain Case: Redevelopment Takings "[D]isproportionately impact ... racial and ethnic minorities."

Posted on October 27, 2010
New York State Senator Bill Perkins has filed an amicus brief in Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010), the case in which upper Manhattan property owners have asked the...

Report On The ABA Teleconference "Is There Such a Thing as a Judicial Taking? The Lessons of the Supreme Court's Ruling in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection"

Posted on October 25, 2010
Last week, the ABA Section of Real Property, Trust and Estate Law, and the Section of State & Local Government Law sponsored the teleconference "Is There Such a Thing as a Judicial Taking? The Lessons of the Supreme Court's Ruling...

Amicus Brief In Columbia Eminent Domain Case: What Level Of Scrutiny Does Kelo Require?

Posted on October 24, 2010
Our colleagues at the Pacific Legal Foundation have filed an amicus brief in Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010), the case in which upper Manhattan property owners have asked...

Materials And Links From The Webconference "Eminent Domain After Kelo"

Posted on October 22, 2010
Here are the slides that I used and links to the cases I discussed in "The Whacky and Wonderful World of Eminent Domain After Kelo." My presentation was entitled "Schlimmbesserung - Eminent Domain for Redevelopment." Schlimmbesserung is one of those....

The Federal Circuit's Economic Failings Undo The Penn Central Test

Posted on October 22, 2010
The first task under the Supreme Court's three-part test for an ad hoc regulatory taking under Penn Central is to measure the "economic impact of the regulation." Professor Steven Eagle wrote in the recent edition of his treatise Regulatory Takings...

New Land Use Law Blog: Massachusetts Land Use Monitor

Posted on October 18, 2010
Boston law firm Rackemann, Sawyer & Brewster has started the Massachusetts Land Use Monitor, which focuses on "court decisions and other developments in land use and real estate law, legislation and policy" from the Bay State. Bob Foster, my colleague...

November 19, 2010: Hawaii Water Law Conference

Posted on October 17, 2010
On Friday, November 19, 2010, I'll be on the faculty of "Integrating Water Law and Land Use Planning" in Honolulu. My session will cover "Water Rights, Property Rights and the Law of Settled Expectations." Other sessions include "Hawaiian Water Rights...

Art Imitates Life In eminent domain: nyc

Posted on October 17, 2010
There was a time when eminent domain lawyers practiced in relative obscurity. Other than a select few, not many knew about condemnation or eminent domain law, or regulatory takings or inverse condemnation. But ever since the U.S. Supreme Court's decision...

October 20, 2010: ABA Teleconference On Judicial Takings And The Stop The Beach Renourishment Case

Posted on October 14, 2010
Mark your calendars: as a follow up to the panel discussion of Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, 130 S. Ct. 2592 (2010) at the ABA Annual Meeting in San Francisco in August, the ABA...

NY Appeals Judge: "[T]here is no longer any judicial oversight of eminent domain proceedings."

Posted on October 13, 2010
We knew that, but in case you didn't take our word for it, here's a judge from the New York Supreme Court's Appellate Division to tell it like it is. In Uptown Holdings, LLCC v. City of New York, No....

Amicus Brief In In Hawaii Beach Takings Case: Is The Right To Accretion A "Property" Interest?

Posted on October 13, 2010
Yesterday, on behalf of the Land Use Research Foundation of Hawaii, we filed this brief amicus curiae in the U.S. Supreme Court in Maunalua Bay Beach Ohana 28 v. Hawaii, No. 10-331 (cert. petition filed Sep. 7, 2010). The Supreme...

10/21/2010 Webconference: Eminent Domain After Kelo

Posted on October 12, 2010
On Thursday, October 21, 2010, from Noon to 1:00 p.m. EDT, please tune in for the free web conference "The Whacky and Wonderful World of Eminent Domain After Kelo." I'm not sure I can live up to making eminent domain...

New Book - social.lawyers: Transforming Business Development (2010)

Posted on October 07, 2010
I'm going to deviate a bit from the usual blog topics to point you to a recently-published book about the use of social media by lawyers. The book is social.lawyers: Transforming Business Development (West 2010), by legal marketing expert Jayne...

New Book: Callies, Regulating Paradise - Land Use Controls In Hawaii (2d ed. 2010)

Posted on October 07, 2010
University of Hawaii lawprof David L. Callies needs no introduction to the readers of this blog. He's one of the deans of the national and international land use bar and professoriate, but those of us who practice land use law...

Shades Of Loretto From The New York Appellate Division

Posted on October 04, 2010
Takings lawyers know Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) stands for the proposition that a regulation allowing a physical invasion of private property -- no matter how de minimus the invasion might be -- is a...

Jersey Shore Belongs To The Public, Not Private Owners

Posted on September 23, 2010
No, thankfully this post is not about the MTV show, but who owns the new dry sand created when the government "replenishes" beaches. In a case reminiscent of the U.S. Supreme Court's decision in Stop the Beach Renourishment v. Fla....

Cert Petition In Columbia "Blight" Case: Are There Any Limits To Eminent Domain In New York?

Posted on September 23, 2010
In a case that could write the next chapter in the Kelo saga, the property owner recently filed this cert petition asking the U.S. Supreme Court to review the decision of the New York Court of Appeals in the Columbia...

Tennessee App: No Inverse Condemnation When Utility Used Electricity Easement For Fiber Optic Cable

Posted on September 22, 2010
Not a landmark case, but one worth noting. In Mathews v. City of Chattanooga, No. E2009-01418-COA-R3-CV (Sep. 15, 2010), the Tennessee Court of Appeals rejected the property owner's claim that the city exceeded the scope of a utility easement when...

New Condemnation Law Blog Focuses On Pacific Northwest

Posted on September 22, 2010
We've been kind of light on the blogging lately (epic road trip combined with brief writing does not a happy blogger make), but we did want to give a heads-up that our Owners' Counsel of America colleagues Dennis Dunphy and...

Latest Briefs In Supreme Court Case On CFC Jurisdiction

Posted on September 17, 2010
Here are the latest briefs in United States v. Tohono O'odham Nation, No. 09-846, (cert. granted Apr. 19, 2010), the case involving the subject matter jurisdiction of the Court of Federal Claims currently awaiting argument in the U.S. Supreme Court.....

New Cert Petition: More Judicial Takings, This Time From Montana

Posted on September 16, 2010
The Supreme Court's multiple opinions in Stop the Beach Renourishment v. Fla. Dep't of Envt'l Protection, 130 S. Ct. 2592 (2010), although unanimous in concluding that the Florida Supreme Court's decison was not a judicial taking, were not the last...

Federalist Society On The Washington Supreme Court's Approach To Property Rights

Posted on September 14, 2010
The Federalist Society has published an assessment of the Washington Supreme Court's approach to state constitutional law, and to us the most interesting part is the first section on property rights in the Evergreen State. Michael Bindas, David K. DeWolf...

New Law Blog: The Record On Appeal

Posted on September 11, 2010
My Damon Key colleague Rebecca A. Copeland has launched a new blog focused on appellate issues in Hawaii and elsewhere. Appropriately titled "The Record on Appeal," Rebecca's blog starts off with this post, and quickly moves on to substance, analyzing...

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