Real Estate & Property Law

Upcoming Conference: 7th Annual Brigham-Kanner Property Rights Conference (9/30)

Posted on September 10, 2010
Check it out: the William and Mary Property Rights Project and the Institute of the Bill of Rights Law will present the 7th Brigham-Kanner Property Rights Conference on September 30 to October 1, 2010. The recipient of this year's prize...

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

Posted on September 08, 2010
The littoral property owners who won a partial victory in the Hawaii appellate courts have filed this cert petition asking the U.S. Supreme Court to review the decision of the Hawaii Intermediate Court of Appeals which concluded that ownership of...

Podcast On The Judicial Takings Case (Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envt'l Protection)

Posted on September 06, 2010
Worth listening: this LexisNexis podcast. Details: On this edition, Michael Allan Wolf, Richard E. Nelson Chair in Local Government Law at the Levin College of Law, University of Florida, discusses what real estate practitioners can learn from the U.S...

Amicus Brief In Supreme Court Case On Court Of Federal Claims Jurisdiction

Posted on September 06, 2010
Last week, we filed an amicus brief in United States v. Tohono O'odham Nation, No. 09-846, (cert. granted Apr. 19, 2010). Why is a case involving the Indian Tucker Act and the technicalities of the Court of Federal Claims' subject...

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Another Podcast On The Judicial Takings Case (Stop The Beach Renourishment v. Florida)

Posted on September 04, 2010
You may have missed the live program, but it's still not too late to get the podcast of a recent discussion of Stop the Beach Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (June 17, 2010), the Supreme...

Call For Eminent Domain Photos For Upcoming ABA Book

Posted on September 01, 2010
Here's your chance to be a well-known "eminent domain photographer." The ABA Section of State and Local Government Law will soon be publishing a Handbook on Eminent Domain, and is need of photographs to illustrate it. We're looking for high...

Entering Our Fifth Year

Posted on August 31, 2010
Happy Birthday to us: we uploaded our first posts on this blog four years ago this day. In lawblog years, that's quite a while. If you can't already tell by the nearly over 1,100 posts during this time, we enjoy...

North Dakota SCT: Gov't Seizure A Function Of Police And Tax Power, Not Eminent Domain

Posted on August 25, 2010
We like creative lawyering. We really, really do. After all, we like to think of ourselves as creative lawyers. But sometimes, you wish your colleagues would keep their ardor for seeing a "taking" in every situation in check, because by...

CJ-Appointee Recktenwald's ICA Opinions

Posted on August 24, 2010
Barista's note: This post, like our earlier post on Justice Recktenwald's Supreme Court opinions, is by our Damon Key colleague Rebecca A. Copeland. For those of you who have been following the process, Rebecca is familiar: she was present at...

Seventh Circuit: Threat Of Eminent Domain No "Sword Of Damocles," So Declaratory Judgment Suit Premature

Posted on August 23, 2010
We all live under the threat the government may exercise eminent domain and take our property, and must live with that cloud, unless the threat becomes more concrete. Only then can we run to court to complain about it. While...

HSBA Real Property Section Legislative Update (8/25/2010)

Posted on August 21, 2010
Mark your calendars for Wednesday, August 25, 2010 from 8:30 to 10:30 a.m. The Hawaii State Bar Association Real Property and Financial Services Section (shout out to my Damon Key partner Greg Kugle, who chairs the Section) is presenting the...

8/25/2010: Live Blog Of Justice Recktenwald Senate Hearing

Posted on August 21, 2010
On Wednesday, August 25, 2010, starting at about 9:50 a.m. (Hawaii Time), we will be live-blogging the Hawaii Senate Judiciary and Government Operations hearing on the appointment of Associate Justice Mark Recktenwald as the next Chief Justice of the Hawaii...

Why Isn't This A "Judicial Taking?" Washington Supreme Court Orders Property Owner To Sell To Neighbor

Posted on August 20, 2010
Courts have equitable powers to fashion remedies that the law may not account for, but does a state's judicial power stretch so far as to allow it to order a property owner to sell an acre of property (at fair...

Matt Fellerhoff Appointed To The Ohio Bench

Posted on August 19, 2010
It's always a pleasure when a gifted colleague is recognized, perhaps more so when they are called to public service. Comes word that Cincinnati attorney Matt Fellerhoff has been appointed by Ohio governor Strickland to the state trial bench. Congratulations,...

Civil Beat Public Forum (aka "Beatup") On HSBA's Role In Judicial Nominations

Posted on August 18, 2010
The "reporter-hosts" at Honolulu Civil Beat are doing a very valuable public service by putting on an event this Thursday focusing on the Hawaii State Bar Association's role in judicial nominations. Featured speakers are Hugh Jones (current HSBA president), and...

Missouri Federal Court: No Compensation Owed When Property Is Taken By The Tax Power

Posted on August 18, 2010
Yes, the government took your property. But it wasn't an exercise of its eminent domain authority. When you don't pay your tax bills, the government can foreclose on your property, and sell it. Which it did. Inverse condemnation complaint dismissed.....

HAWSCT: Native Hawaiian Burials (Iwi) Case Moot, But Exception Applies

Posted on August 18, 2010
The Hawaii Supreme Court in an opinion authored by Chief Justice Moon and joined by Justices Nakayama and Duffy (Justices Acoba and Recktenwald concurred separately), held that an administrative appeal regarding the disinterment of Native Hawaiian burial remains discovered at...

Wisconsin App: When Statute Requires "Jurisdictional Offer" As Prerequisite To An Award Of Expenses, You Must Have A Jurisdictional Offer

Posted on August 17, 2010
In Klemm v. American Transmission Co., No. 2009AP2784 (Aug. 10, 2010), the Wisconsin Court of Appeals held that in order to obtain litigation expenses under a state statute which provides that a property owner may recover expenses if a condemnation...

Haw CJ v. 2.0

Posted on August 16, 2010
Associate Justice Mark Recktenwald will be the next Chief Justice of the Hawaii Supreme Court. Last week, Governor Linda Lingle made the appointment, and barring a horrifying scandal emerging, he is a going to be deemed "qualified" by the Hawaii...

Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches

Posted on August 14, 2010
My Damon Key colleagues Mark Murakami and Tred Eyerly and I have posted our forthcoming essay Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches on SSRN here, containing our thoughts on Stop the Beach Renourishment,...

CJ-Appointee Recktenwald's Supreme Court Opinions

Posted on August 14, 2010
Barista's note: This post is by our Damon Key colleague Rebecca A. Copeland. For those of you who have been following the process, Rebecca is familiar: she was present at the Judiciary Committee hearings when we live-blogged the Katherine Leonard...

Eagle On "The Really New Property: A Skeptical Appraisal"

Posted on August 13, 2010
Lawprof Steven J. Eagle (Geo. Mason), author of the treatise Regulatory Takings, has a forthcoming article The Really New Property: A Skeptical Appraisal: This article reviews recent scholarship invoking the prophetic tradition in American jurisprudence and calling for the transformation...

State Zoning Statutes As "Environmental" Laws - More On HAWSCT's Ala Loop Decision

Posted on August 13, 2010
In County of Hawaii v. Ala Loop Homeowners, No. 27707 (July 9, 2010), the Hawaii Supreme Court held that certain state zoning laws are "environmental" laws that may be enforced by private plaintiffs. The court held "[w]e further conclude that...

Land Use Institute - ALI-ABA Program - Aug. 25, 2010, Santa Fe

Posted on August 11, 2010
Mark you calendars: from August 25-28, 2010 in Santa Fe, New Mexico, ALI-ABA is putting on the annual program, Land Use Institute: Planning, Regulation, Litigation, Eminent Domain, and Compensation. We won't be able to attend this year, but we have...

Notes From The ABA Panel On The Judicial Takings Case (Stop The Beach Renourishment v. Florida Department of Environmental Protection

Posted on August 08, 2010
On Friday, at the ABA Annual Meeting in San Francisco, the Section of State and Local Government Law along with the Section of Real Property, Probate, and Trust Law co-sponsored a panel discussion of what was the most fascinating case...

Motion For Reconsideration Of HAWSCT's Opinion In Ala Loop: Are Zoning Statutes "Environmental Laws?"

Posted on August 07, 2010
The State (actually Waiola Waters of Life, the defunct charter school) has asked the Hawaii Supreme Court to reconsider its decision in County of Hawaii v. Ala Loop Homeowners, No. 27707 (July 9, 2010). In that case, the court held...

Some Lingering Thoughts On The Leonard CJ Appointment

Posted on August 06, 2010
Well, what do you know. The Hawaii Senate Judiciary Committee voted 4-1 against recommending Intermediate Court of Appeals Judge Katherine Leonard to the full Senate for confirmation as the next Chief Justice of the Hawaii Supreme Court (we live blogged...

Upcoming ABA Panel On The Judicial Takings Case (San Francisco 8/6/2010)

Posted on August 05, 2010
This Friday, August 6, 2010 from 2:30 - 4:00 p.m. as part of the ABA Annual Meeting in San Francisco, the Section of State and Local Government Law is co-sponsoring a panel discussion of what was, in my opinion, the...

Hawaii State Bar Association E-Mail On Leonard CJ Nomination

Posted on August 04, 2010
This just received: Aloha Members: Undoubtedly you are aware of the controversy and media coverage surrounding the confirmation process now underway for several judicial positions. In particular, the Board's assessment that ICA Associate Judge Katherine Leonard is "not qualified" for...

Ninth Circuit Posts Video Of Guggenheim (Rent Control Takings Case) En Banc Oral Arguments

Posted on August 03, 2010
Last month, we attended the oral arguments in the rehearing en banc of Guggenheim v. City of Goleta, 582 F.3d 996 (9th Cir., Sep. 28, 2009). The three-judge Ninth Circuit panel held 2-1 that a takings challenge was ripe under...

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