Property Posts

U.S. Supreme Court Decisions, Both Decided May 25, 2023, Protect Private Property Owners from Overreach by Local (Tax Sale) and Federal (Wetlands) Regulators: Tyler v. Hennepin County and Sackett v. EPA

This piece analyzes two U.S. Supreme Court rulings that expand the constitutional protections afforded private property owners in two regulatory contexts—tax sales administered by local governments and the EPA’s classification of wetlands as “waters under the United States” under the Clean Water Act.

Justices rule Minnesota county violated takings clause

The Supreme Court ruled that Hennepin County’s actions violated the Fifth Amendment’s takings clause, which bars the government from taking private property for public use without adequately compensating the property owner.

Forced Pooling: The Unconstitutional Taking of Private Property

Recent changes in the law and the oil and gas industry both justify a reexamination of forced pooling on constitutional takings grounds. This Article will therefore take a fresh look at forced pooling schemes through the lens of modern takings jurisprudence.

Justices appear likely to side with homeowner in foreclosure dispute

Justices heard arguments in Tyler v. Hennepin County, Minnesota to assess if taking and selling a home to satisfy a debt to the government, and keeping the surplus value as a windfall, violates the Fifth Amendment’s takings clause and if the forfeiture of property worth far more than needed to satisfy a debt, plus interest, penalties, and costs, is a fine within the meaning of the Eighth Amendment.

Lead and Landlords

This article argues that the accepted practice of requiring the consent of the landlord before replacing the lateral service line is at least questionable law and asserts that property rights are properly subject to limits that affect a landlord’s autonomy around the question of whether a lead service line should be replaced on her property.

The Institute in the Courts: South Carolina Adopts Section of Property 3d

Recently, in Clarke v. Fine Housing, Inc., 2023 WL 29046 (S.C. Jan. 4, 2023), the Supreme Court of South Carolina adopted the approach set forth in Restatement of the Law Third, Property (Servitudes) § 3.4 in determining whether a right of first refusal was an unreasonable restraint on alienation.

Justices appear divided over Navajo Nation’s water rights

This article was originally published on on March 21, 2023. What water the United States owes the Navajo Nation under the 1868 Treaty of Bosque Redondo formed the crux of the argument in Arizona v. Navajo Nation.

Takings Property and Appropriative Water Rights

Courts and commentators have yet to define the types of rights that are entitled to constitutional protection with sufficient precision to avoid an inconsistent and inefficient application of the Takings Clause. The Article assesses how certain frameworks perform with a property interest as elusive as appropriative water rights and provides broader lessons about both takings property and water law.