Property Posts

Inheritance in an Unequal Age

In the last three decades, state legislatures have eliminated the Rule against Perpetuities, and now dynasty trusts can make carefully controlled payments to a trust settlor’s descendants for hundreds of years. Trusts scholars have roundly criticized the Rule’s removal, and some have described it as charting a path to a new Gilded Age. This Article draws a theoretical lesson from the Rule’s demise.

October 2022 Council Meeting Updates

At its meeting on October 20 and 21, 2022, the Council reviewed and discussed Council Drafts of five projects and approved drafts and portions of drafts as listed.

Natural Resource Property Customs

In an era of space exploration, e-commerce, and internet, the United States follows the same Civil War-era mining law, enacted prior to the invention of the lightbulb and automobile. This article examines the history of American natural resource customs in mining systems and how those customary property traditions ultimately led to our current mining laws.

Sidewalk Government

This Article is the first to systematically examine the incoherence of the property law of sidewalks and of the fragmented regulatory architecture that municipalities have built to manage them. The Article demonstrates how both legal regimes have in fact deepened sidewalk conflict and have confused and undermined accountability for the quality and accessibility of the sidewalks.

Cedar Point Nursery and the End of the New Deal Settlement

The United States Supreme Court case Cedar Point Nursery v. Hassid has sparked intense criticism, with critics arguing that the decision threatens to transform the law of property rights so as to “hobble” government land use regulation and even undermine democracy. This Article explains why the objections of Cedar Point’s detractors are misplaced and that it is best understood as another step in the normalization of property rights.

Ownership Concentration: Lessons from Natural Resources

This Essay suggests that where the concentration of land ownership is a concern, one might draw lessons for reform by looking to the field of natural resources law, which employs a range of deconcentration mechanisms affecting fisheries, mineral extraction, farmland, and the like that have proven a considerable success.

The Institute in the Courts: Supreme Court of Nevada Adopts Sections of Restatement of the Law Third, Property (Servitudes)

Recently, in Moretto Trustee of the Jerome F. Moretto 2006 Trust v. ELK Point Country Club Homeowners Ass’n, Inc., 507 P.3d 199 (Nev. 2022), the Supreme Court of Nevada adopted Restatement of the Law Third, Property (Servitudes) §§ 6.7 and 6.9 “to govern issues concerning an association’s authority to enact rules regarding the restriction of individually owned property.”

A Defense of Horizontal Privity in American Property Law

This article attempts to present a balanced and nuanced view with two major aims: to show why many of the objections against horizontal privity are weak and to argue for why horizontal privity may be worth keeping.