Arbitration: Arbitration clause in sales contract does not apply to claim against escrow agent for wrongful disbursal of funds. Investors purchased tenant-in-common interests for the tax benefits in event centers to be constructed by Rockwell Debt Free Properties, Inc. The purchase and sale agreements (PSAs) contained nearly identical arbitration clauses, which required any dispute between the parties to be submitted to binding arbitration within 90 days of the date of closing. Each PSA designated First American Title Insurance Company as the escrow agent for the sale. There was no written escrow agreement, and First American did not sign the PSAs. Rockwell failed to complete any event venue. Attempting to recover their investments, the purchasers sued Rockwell, First American, and its employee (FA defendants) in federal court. Rockwell filed for bankruptcy. The plaintiffs sued the FA defendants for breach of fiduciary duty, alleging that, rather than hold and disburse escrowed funds only for acquisitions of land for the event centers as required by the escrow terms, shortly after closing, the FA defendants disbursed all the money to Rockwell, which wrongfully consumed the funds. The FA defendants moved to compel arbitration based on the arbitration clauses in the PSAs. A month later, Rockwell's bankruptcy trustee expressly waived the arbitration provision in each PSA. A magistrate judge denied the demand for arbitration. The Court of Appeals for the Tenth Circuit affirmed, concluding that the FA defendants were not entitled to compel arbitration because they were not parties to the PSAs. They were not signatories, nor referred to as a party in the PSAs. Under the PSAs, Rockwell promised to convey real-estate interests to the buyers, who in exchange promised to pay Rockwell for those interests. Even though the FA defendants could benefit from the PSAs, no promises were made to them. If they had declined to act as escrow agent in any of the sales transactions, they would not have breached the PSA. Furthermore, no PSA contained an agreement by the FA defendants to arbitrate any disputes they had with the signatories to the PSA. Nor, in the court's reasoning, were the FA defendants entitled to compel arbitration as third-party beneficiaries of the PSA because nothing in the PSA evinced any intent to benefit them. The court went on to reject the assertion that they could compel arbitration as agents of Rockwell. Even if they were agents, the court explained, they had no power to compel arbitration after their principal, the bankruptcy trustee, expressly waived arbitration. Fucci v. First Am. Title Ins. Co., 153 F.4th 1129 (10th Cir. 2025).
Homeowners Associations: Anti-assignment provision in sales contracts does not prevent homeowners from assigning breach of warranty claims to their homeowners' association. Pointe 16 Townhomes is a residential community with 67 residences sold by the developer to individual homebuyers. With the sale of each residence, the homebuyer and developer executed a "Purchase Agreement and Escrow Instructions," which contained an anti-assignment clause. The clause stated:
In view of the credit qualifications, processing and other personal matters considered hereunder, this Agreement and the rights of Buyer hereunder may not be assigned or transferred by Buyer voluntarily, involuntarily, or by operation of law without first obtaining Seller's written consent, which may be withheld in Seller's sole and absolute discretion. If Buyer attempts to assign Buyer's interest under this Agreement before the Close of Escrow or enters into another escrow for the concurrent resale of the Property, Buyer is in default and Seller shall have the right to terminate this Agreement and retain the Earnest Money Deposit . . . .
The developer conveyed ownership of the Pointe 16 common areas to the Homeowners' Association (HOA), which, under the declaration, was charged with maintaining and managing the common areas. The HOA filed a lawsuit against the developer and its general contractor, alleging defects in the structures and that Pointe 16 was not constructed in a workmanlike manner. The complaint asserted two causes of action: a dwelling-action claim under Ariz. Rev. Stat. §§ 12-1361 to 12-1361 and a claim for breach of the implied warranty of workmanship and habitability. The defendants moved for summary judgment on both claims. As to the dwelling-action claim, they argued § 12-1361 did not establish an independent cause of action. On the breach of implied warranty claim, they argued that the HOA could not prevail because the implied warranty was created in favor of homebuyers, yet the HOA was not a homeowner, did not represent the homeowners and was not pursuing claims belonging to any homeowner. Thereafter, a majority of the homeowners signed a "Homeowner Assignment of Certain Defect Claims to Association," giving the HOA the sole right to pursue the assigned claims against the defendants. The homeowners did not first obtain the developer's written consent for the assignments. The trial court granted summary judgment to the defendants, concluding that the HOA had no legal right to assert a claim for breach of the implied warranty, as the agreement prohibited assignments. The intermediate appellate court affirmed. The supreme court reversed. First, agreeing with the lower courts that although rights and duties under a contract, such as the implied warranty of quality, are ordinarily freely assignable, this right to assign may be limited by the contract. Looking at the prefatory language of the agreement, it was clear to the court that it was not meant to preclude the assignment here. Instead, it was intended to prevent a substitution of a buyer with whom the developer had not contracted, as that might impair the developer's chance of obtaining the full performance under the agreement or might increase the burdens or risks as to performance obligations under the agreement. The court found there was no language evincing an intent to prohibit the assignment of a homebuyer's claims accruing from breach of the agreement; this silence, the court found to be significant. In the court's assessment, an assignment of rights under a contract is different from an assignment of accrued claims for damages arising from a breach of that contract. Pointe 16 Cmty. Ass'n v. GTIS-HOV Pointe 16, LLC, 575 P.3d 368 (Ariz. 2025).
Cotenants: Quitclaim deed from joint tenant to herself does not sever joint tenancy. In 1996, a mother conveyed real property to herself and to her son, as joint tenants with the right of survivorship. The relationship between mother and son deteriorated, and in 2020, the mother sued her son for partition. Next, the mother executed a quitclaim deed transferring her interest in the property back to herself. The quitclaim deed explicitly stated its purpose was to sever the joint tenancy and create a tenancy in common. In 2022, while the partition action was still pending, the mother died, leaving her entire estate to her daughters by will. The trial court held that her son owned the entire property on the basis that (1) the mere pendency of an action in partition, without more, does not sever the joint tenancy, whereupon an abatement occurs upon the death of a joint tenant and (2) the mother's deed to herself did not sever the joint tenancy because it did not destroy any of the four unities. The intermediate court affirmed. Agreeing with the lower courts, the supreme court first offered a tutorial on basic property law concepts, including the nature of cotenancies. It explained that for a unilateral act by one of the joint tenants to sever and convert the tenancy into a tenancy at common, that act must be one from which the tenant is unable to retreat. The acts that have been held to be sufficient for this purpose include conveyance to a third party and executing a mortgage to a third party. The mere initiation of a partition action is not sufficient, because the joint tenant seeking it is free to discontinue the action at any time before judgment is entered. In determining the effect of the purported severing deed, the court considered two approaches. Under the formalist approach, a joint tenancy is severed only when one of the four unities is lost. In contrast, the intent-based approach looks to whether the cotenant intended to sever. The court opted for the former approach, finding an objective standard more predictable and less susceptible to fraud or unfairness in the case of secret severances. Based on this approach, the court ruled that a joint tenant who manifests an intent to sever a joint tenancy -- but who does not destroy any of the four unities -- fails to sever the joint tenancy. This is so because the grantor, who was also the grantee, still holds "one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession." The court discussed the common-law imperative of using a straw man to sever and still retain an ownership interest, suggesting that that is what was required here. At the same time, the court appeared to recognize the ability of an owner to create a joint tenancy in herself and another without the intervention of a straw man, as the mother apparently did here. Grant v. Grant, 341 A.3d 685 (Pa. 2025).
Easements: Statute of limitations does not apply to unused easement by necessity. The Easterlings owned three contiguous landlocked parcels of real property, which were inaccessible by public road. The Clarks owned the parcel of land directly to the south of the Easterlings' land and bordering a public road. In 2017, the Easterlings, having decided to sell their three parcels, approached the prior owner of the Clarks' parcel to purchase an express easement so that a buyer would have road access. After negotiations failed, the Easterlings commenced an action claiming an easement by necessity to access their abutting parcels. The defendants asserted multiple affirmative defenses, including laches, waiver, unclean hands, and expiration of a statute of limitations. The trial court granted judgment for the Easterlings, holding that they owned an easement by necessity and determining its location and width. The case went to the state supreme court twice, with both appeals considering the state's catchall statute of limitations, which states: "An action for relief not hereinbefore provided for must be commenced within four (4) years after the cause of action shall have accrued." Idaho Code § 5-224. In the first appeal in 2023, the supreme court held in a 3-2 decision that the statute applies to easement-by-necessity claims. In the second appeal in this case, the court reversed its earlier decision. The court explained that an easement by necessity arises and is implied at the conveyance of a tract of land that is landlocked and inaccessible via public road in favor of the grantee. Because an easement by necessity does not rest on prior use, it may lie dormant for many years and through changes in ownership of the dominant estate, until a claim is asserted. Given the strong public policy in favor of land that is productive, one who asserts a dormant easement of necessity cannot be thwarted by a statute of limitations or the defense of laches. The action at issue was not a claim to create a right that did not already exist, but rather was an action to judicially recognize an easement that came into effect at the time of the severance. The court concluded that undoubtedly, Idaho's catchall statute of limitations applies to actions "not hereinbefore provided," but section 5-224 was never meant to "catch" a claim seeking a declaration of a right that, by its very nature, may lie dormant for years. Easterling v. Clark, 574 P.3d 349 (Idaho 2025).
Easements: Clause in conservation easement prohibits subdivision of servient estate. Nancy and Walter Tabor owned more than 140 acres of land. In exchange for $210,496, Nancy Tabor granted the United States a conservation easement on a portion of that land, which the easement deed described as "parcels of land ... shown as Parcel A, Parcel B, and Parcel C on a map." The easement deed prohibited dividing, partitioning, or subdividing the property encumbered by the easement. After Nancy Tabor conveyed one parcel to Walter Tabor and attempted to sell another parcel to a third party, the government objected, claiming that dividing the property between different owners would violate the terms of the easement deed. The Tabors sued to quiet title pursuant to the Quiet Title Act, 28 U.S.C. § 2409a, claiming that the easement deed does not prohibit the proposed conveyances. The district court held otherwise and granted the government's motion for summary judgment. The Tabors appealed, and the U.S. Court of Appeals for the Second Circuit affirmed. The court pointed out that the deed defined the "Property" as all of Parcels A, B, and C. As the easement deed prohibited divisions and partitions of the "Property," and the "Property" referred to the land encompassing the three parcels as a whole, the parcels had no separate legal status aside from demarcating the land to which the easement applied, meaning the easement applied to the three parcels collectively. The sale of Parcel A to one party and the conveyance of Parcels B and C to another would result in a prohibited division of the Property. Although the easement deed allowed the entirety of the Property to be sold to a new owner, the proposed piecemeal division of separate parcels to separate owners would divide it. Even if the Tabors could establish that the easement deed was ambiguous on this point, the deed required that "[a]ny ambiguities" must "be resolved in favor of [the government]." Therefore, unless the government consents, the easement deed prohibits the proposed conveyances. Tabor v. United States, 2025 WL 2202744 (2d Cir. Aug. 4, 2025).
Deeds: Deed that purported to convey title to non-existent corporation is ineffective. Quinn owned two acres of real property and lived with Minshall most of the time from 1980 until Quinn's death in 2019. In 2006, Quinn entered into a contract for deed, naming the buyer as "M/Q ENTERPRISES, EIN 26-2800542." In 2018, Quinn conveyed the property by quitclaim deed to her two daughters, Griffin and Osbon, who four months later deeded the property back to Quinn. That same month, Quinn executed a quitclaim deed conveying the property to "M/G Enterprises, EIN 26-2800542," a slightly different name, but the same EIN. In the course of this contest, there emerged three different iterations of the corporate entity involved, but the facts revealed that none of the three had ever been registered as a business with the Wyoming Secretary of State or with any other state. Neither had ever received any documented income or paid any taxes. Two years after Quinn's death, Minshall executed a quitclaim deed on behalf of M/G Enterprises, EIN 26-2800542, conveying the property to himself. After Griffin and Osbon asserted ownership to the property as the heirs of Quinn, Minshall filed a complaint to quiet title, requesting a declaration that he was the owner of the property. The trial court entered judgment for Griffin and Osbon, rejecting Minshall's assertion of title based on estoppel by deed. The supreme court affirmed, explaining that estoppel by deed is a defensive doctrine which cannot be used to create a right where none existed. Its function is to preserve rights. It rests upon the existence of a valid deed, but for a deed to be valid, there must be a grantee who can take the title at the time of the conveyance. A deed transferring land to an entity with no legal existence does not pass title. The 2018 deed from Quinn to M/G Enterprises, EIN 26-2800542, was a deed to a nonexistent corporation that had not been duly incorporated and had no legal existence. The deed was therefore a nullity and did not pass any title to the property. For this reason, estoppel by deed did not apply. Minshall v. Griffin, 572 P.3d 1287 (Wyo. 2025).
Foreclosure: Sale price below one-tenth of fair market value of property is alone sufficient to set aside sale. West Alabama Bank foreclosed on a rental property and on a residential property owned by the Collinses, buying both properties at the foreclosure sales. Subsequently, the bank commenced ejectment actions to gain possession of the properties. The Collinses answered the complaint in each action, asserting as an affirmative defense that the foreclosure sales were void because the sales prices were so inadequate as to shock the conscience. The circuit court entered summary judgment in favor of the bank on all claims. On appeal, the Collinses argued that "Alabama caselaw imposes a quasi-fiduciary duty on the lender exercising its power of sale," which precludes a foreclosure sale at a price so low as to "shock the conscience." In reversing, the supreme court noted that under the foundational decision, Hayden v. Smith, 113 So. 293 (Ala. 1927), a mortgagee has a general duty to act in good faith and to adopt all reasonable modes of proceeding to render the sale most beneficial to the debtor. Based on this general duty, when a foreclosed property is sold at or below one-tenth of its actual value, a court may rely on evidence of the sale price alone to set aside the foreclosure sale. In cases in which the sale price is above one-tenth and below one-third of the property's fair market value and there is evidence of other circumstances showing unfairness, misconduct, fraud, or even "stupid management," a court can also set aside a foreclosure sale. Here, the Collinses provided affidavits indicating the foreclosure sale price for the residential property was 47.5% of its fair market value, and the foreclosure sale price for the rental property was 26.4% of its fair market value ($184,500 price and $599,000 value). The supreme court affirmed summary judgment for the bank for both properties because the Collinses produced no substantial evidence of "other circumstances" justifying setting aside the foreclosure of the rental property. Collins v. W. Ala. Bank & Trust, 2025 WL 2627910 (Ala. Sept. 12, 2025).
Foreclosure: Twenty-year statute of limitations for recovery of land applies to foreclosure actions, not six-year period for actions on a debt. In 2006, White executed a promissory note and mortgage for $250,000 to purchase a condominium unit. In 2008, White stopped making mortgage payments, and the bank sent White a notice that it intended to initiate a non-judicial foreclosure. The bank later rescinded the notice in 2010. In 2012, the homeowners' association foreclosed on the property for unpaid maintenance fees and other assessments, resulting in an auction sale of the property to Collins. In 2017, the bank sent White a notice of default and then filed a foreclosure action. White did not respond, but Collins responded and argued various procedural lapses and that the action was barred by the six-year statute of limitations, Haw. Rev. Stat. § 657-1, which began to run after acceleration in 2008. The bank maintained that the statute of limitations for a foreclosure is twenty years under Haw. Rev. Stat. § 657-31. The trial court granted summary judgment to the bank. The intermediate appellate court affirmed. The supreme court, in turn, affirmed, explaining that because a foreclosure action is an equitable remedy, a court of equity is not bound by the statute of limitations. But in the absence of extraordinary circumstances, the courts will usually grant or withhold relief in analogy to the statute of limitations relating to law actions of like character. Under Haw. Rev. Stat. § 657-1 for actions to recover a debt founded on contract, the period is six years. But for actions to recover possession of any land or to make entry thereon, it is 20 years under section 657-31. Because a mortgage is a conveyance of an interest in land and foreclosure actions seek to extinguish the mortgagor's title, they are akin to actions at law to recover real property; therefore, the applicable statute of limitations is the one for real actions. Bank of N.Y. Mellon v. White, 573 P.3d 629 (Haw. 2025).
Options: Equity will not restore rights lost by negligent failure to give notice of exercise within time prescribed. Ashland leased 24 properties from SuperAsh under 24 separate leases that commenced in 2010. Speedway subleased the properties from Ashland. The initial term for each lease was five years. The leases contained renewal options that gave Ashland the opportunity to renew the leases multiple times: first, for a five-year renewal term and then for two successive one-year renewal terms. To exercise the options, Ashland was required to submit a written notice of intent to renew 120 days before the expiration of the leases. If Ashland did not exercise its option to renew the leases, any improvements made to the properties would vest in SuperAsh. Significantly, Speedway had invested more than $10 million in capital improvements on the properties. Ashland successfully renewed the leases twice, first in 2015 and second in 2020 for one-year terms expiring on December 31, 2021. Although Ashland gave late notice of the second renewal, SuperAsh accepted it nonetheless. The next year, Ashland attempted to renew the leases for a third time. This attempt was unsuccessful. The renewal notice was due to SuperAsh on September 3, 2021. Like the previous year, Ashland's attorney sent a draft renewal notice to Ashland's vice-president for his signature -- this time, before the deadline. But the attorney did not instruct the vice president to send the signed notice to SuperAsh; instead, on August 11, 2021, the vice president returned a signed copy of the notice of renewal to the attorney. Neither sent it to SuperAsh by September 3, 2021. In November 2021, SuperAsh notified Ashland that the leases would expire on December 31 because Ashland had failed to exercise its renewal option. After negotiations for a renewal term failed, Ashland filed a complaint seeking a declaration that the exercise of its renewal option was effective and seeking specific performance of the leases. The trial court granted judgment to Ashland, ruling that equity could forgive an unintended error under a lease and that Ashland's failure to submit the renewal notice was an inadvertent, honest mistake. Otherwise, the trial court noted that strict enforcement of the deadline to exercise the option would result in the forfeiture of millions of dollars in improvements. The trial court also ruled that equitable estoppel was a basis for preventing termination of the leases on account of SuperAsh's knowingly accepting rent from Ashland for two weeks while the parties engaged in negotiations for a new renewal term. The intermediate appellate court affirmed. The supreme court reversed. It stated that ordinarily strict compliance with time limits is not required for contracts; the general rule is that time is not of the essence of a contract unless stated to be so. A different rule applies to options that are agreements to leave an offer open for a set time. Because Ashland did not exercise the option to renew within the time limit provided, it was not entitled to renew the leases. And the traditional grounds for equitable relief, such as fraud, accident, mistake, duress, or waiver, were absent here. Instead, all that the facts revealed was negligence by Ashland. The court concluded by reminding the parties that contract disputes must be resolved by the terms of the agreement and not on what might seem equitable. The court was not at liberty to rewrite the rules of equity to excuse a party's failure to comply with the terms of its own agreement, even on the basis of forfeiture. Ashland Global Holdings, Inc. v. SuperAsh Remainderman, Ltd. P'ship, 2025 WL 2347400 (Ohio Aug. 14, 2025).
Zoning: City zoning ordinance cannot restrict activities on state land. The Mississippi Department of Agriculture and Commerce (MDAC) entered into a licensing agreement for Busby Outdoor LLC to construct a three-sided, 35-foot-tall, LED billboard on the state fairgrounds in Jackson, Mississippi. Busby committed to manage, operate, and license it for 20 years under MDAC's supervision. The city brought a complaint against MDAC and Busby for declaratory and injunctive relief, alleging violations of the city's sign ordinance and a zoning ordinance by building and operating a billboard within the city's High Street Overlay District without a permit, without following restrictions, and without obtaining a zoning variance. The complaint also sought a determination that the billboard was a public nuisance because of its operation in violation of the ordinances and its alleged threat to the public safety and the general welfare of drivers and pedestrians on High Street. The trial court entered judgment for the city on one count, finding that MDAC must comply with the city's sign ordinance, but ruling that the zoning ordinance did not apply because it specifically exempted properties used by state institutions. At the same time, the court held that the billboard was a public nuisance because it violated the sign ordinance. On appeal, the supreme court reversed. The principal question addressed was whether state property was subject to local regulation. The court explained that, as a general matter, the state's sovereignty is not subject to statutory restrictions; thus, most statutes do not restrict the state itself. Municipalities hold only the powers granted to them by statute, and although Miss. Code Ann. §§ 17-1-3(1), -19 authorizes the city to enact regulations in service of the public health, safety, and the general welfare, the city nonetheless lacks the power to regulate actions of the state. Busby Outdoor LLC v. City of Jackson, 417 So. 3d 125 (Miss. 2025).
Literature
Takings: George Mason University's Scalia Law School's publication The Journal of Law, Economics, and Policy dedicated one issue to takings. 20 J.L. Econ. & Pol'y 327 (Spring 2025). The issue features nine articles from various authors presenting a broad array of perspectives on regulatory takings law. Although some authors are practitioners, professors, or both, there are also contributors whose names are given but their backgrounds are unidentified. The issue was produced as part of a symposium entitled "Too Far: Imagining the Future of Regulatory Takings." The articles reflect a consistent theme of arguing for new ways to justify compensation to any property owner affected by any type of regulation. Although compensation is regularly referenced, more emphasis is placed on defining the best method of identifying the necessary connection between property rights and regulatory interference. Many of the approaches identify property rights in ways totally separate from valuing the rights involved. Those views stand in stark contrast to views that see property rights as inextricably linked to the economic and social values of property.
In Juries for Takings Liability: Treating Litigants Alike, Michael M. Berger reflects on his career spanning more than half a century representing private property owners across the country at every judicial level. As counsel in the 1999 Supreme Court of the United States (SCOTUS) case City of Monterey v. Del Monte Dunes at Monterey, Ltd., 523 U.S. 687 (1999), Berger was particularly agitated by the court's dictum stating that the Court had not yet held that the right to a jury trial is an element of due process applicable to state courts through the Fourteenth Amendment. The author feels that that statement injected unnecessary confusion into the takings landscape because it has long been clear that the Seventh Amendment applies against the federal government. The author asserts that there is very little, if any, reason given for this absence, aside from judicial proclamations that such a concern is best addressed by state law or that the right is not fundamental to our scheme of ordered liberty, nor deeply rooted in the nation's history and tradition. The article, however, does not include any benchmarks or metrics to determine if the Court's pronouncements deferring to states to expressly incorporate the Seventh Amendment into the Fourteenth Amendment due process clause have actually resulted in denials of jury trials for plaintiffs in takings cases. Nonetheless, the article clearly exposes a jurisprudential hole wherein filling it may add helpful clarity to state regulatory takings proceedings.
Cyber Takings: A Preliminary Study of Regulating Takings of Virtual Spaces, by Ethan W. Blevins, is a highly theoretical thought experiment on how the physical takings test should apply to the digital environment. The article was motivated by First Amendment litigation addressing the constitutionality of legislation in Texas and Florida dictating editorial limitations on social media platforms that the movants deemed as discriminatory against conservative viewpoints. SCOTUS did not render a substantive decision on the case, finding that the appellate courts failed to perform a proper analysis of a facial constitutional challenge. Blevins criticizes the SCOTUS analogy of the social media platforms to newspapers as incomplete and failing to explain what he feels is the property-like nature of social media platforms. Blevins focuses on the right to exclude as indicative of social media platforms being property since they decide the terms of membership and participation. Blevins proceeds to apply the physical takings test to platforms as personal property, asserting that no jurisprudence exists that limits that test to real property or physical space. He further states that social media platform regulations "require" platforms to allow third parties to come into their space and alter them via interactions with others therein. Such acts of membership selection or deselection, and content moderation, in substance or frequency of appearance, are presented as rights that cannot be regulated without relief. Thus, he asserts, the legislation in question amounts to a per se physical regulatory taking.
Prof. Eric R. Claeys's article, Takings and Choice of Law after Tyler v. Hennepin County, spotlights the 2023 SCOTUS case so named and the choice-of-law question addressed. Specifically, what law should determine a plaintiff's constitutional private property for eminent domain claims? Prof. Claeys supports Tyler's approach, which makes it a federal question that consults the state law of the locus in quo when the state law secures, as opposed to circumvents, the federal right. The article addresses that question based on a property owner bringing federal inverse-condemnation claims against a state restriction. SCOTUS eschewed state law as the sole source for an answer to avoid states selectively sidestepping the Takings Clause. In addition to the disputed law, the Court reviewed federal precedent and practice as well as English history and laws and decisions from other states. Prof. Claeys argues that Tyler should be read narrowly and applied to a similarly narrow range of takings cases, finding the arguments raised against that approach and the Court's decision to be "a bit overdrawn." The article provides what he calls a normative approach as opposed to "the creatures of state law" approach that identifies Fifth Amendment protection extending only to rights created by state law. He sees Tyler as also providing an alternative to the "federal patterning" approach, which is an outgrowth of decisions addressing a wide range of federal constitutional issues. Prof. Claeys emphasizes that Tyler addressed various issues dealing with a wide range of resources to find that surplus equity was federally protected constitutional private property. He heralds that approach as best in order to prevent plaintiffs like Tyler from losing important leverage and relief that could result from a court's reliance upon a sole resource to define the type of property covered by takings law.
Counting Costs: The Institutional Effects of Regulatory Takings, by Emily Cruikshank Bayonne and Wesley M. Davenport, proposes "a comprehensive overview" of legal and economic research on the impact that regulatory changes have on the economics of regulatory takings and property rights. The authors do so through the use of an institutional transaction cost framework extrapolated into an empirical analysis of a Chicago Metropolitan Statistical Area. Using statistical regression and related formulaic determinations, the authors conclude that increases in regulations in a given locality are positively associated with increased governmental spending in surrounding communities. The authors further proclaim that most regulation constitutes a taking as it imposes explicit and implicit costs to the entire market rather than an isolated industry. The brunt of the article generally references property law as part of a greater economic analysis, starting with the Coase theorem applied to transactional costs. They hypothesize that an unaccounted-for cost of a given regulation is responsible for some portion of increases in budgets and taxes, as societal moving habits are marginally attributable to the level of restrictions in any given locale. Although their analysis yields some notable statistical conclusions for the specific area measured, the article emphasizes the lack of precision in determining actual financial values implicated in takings, i.e., value attributable to the regulations, the affected properties, and the potential damages for owners. Thus, the authors caution potentially affected parties to exercise strict hesitancy when contemplating regulations affecting property rights.
In Legislative Responses to the Regulatory Takings Conundrum, Emily Hamilton and Charles Gardner propose a renewal of state legislation that would enshrine protections against downzoning into law or into state constitutions without respect to the degree of diminution of value. The authors believe that such an approach could cause a significant impact on housing scarcity by reversing a trend of limiting property owners' ability to provide affordable housing. The paper reviews the history of downzoning and regulatory development for the past century, with some modest consideration of important nonpolitical factors such as population trends and location capacities to accommodate them. They indicate that downzoning was not limited to major cities but also occurred in smaller towns and suburbs. The authors also review the history of judicial intervention into land use restrictions, noting a recent study of more than 2,000 regulatory taking cases wherein only 9.9% were successful, which is a much smaller rate of success than other types of traditional takings lawsuits, like those involving physical invasions and condemnations. The majority of the article examines legislative responses to downzoning by focusing on three states as representative of "a Goldilocks approach to regulatory takings": Florida's Harris Act they see as too timid by requiring an "inordinate infringement of property rights" to qualify for compensation; Oregon's measures 37/49 as too aggressive by using pure diminution of value standards; and Arizona's Proposition 207 as just right by using a standard that asks only whether there has been any loss of property value and is prospective in nature with a three-year statute of limitations, but disallows claims for indirect diminution caused by neighboring landowners. The comparisons are enlightening, although much of the analysis is supported more anecdotally than by examples of specific applications of the acts addressing housing needs, either by deterring regulations or compensating property owners, especially developers who presumably invest in providing affordable housing.
Brian T. Hodges and Deborah J. La Fetra, in Sheetz v. County of El Dorado: Legislatures Must Comply with the Takings Clause, highlight the SCOTUS decision in the namesake case holding that the Takings Clause applies equally to all branches of government, legislation as well as to administrative exactions imposed in an ad hoc fashion by various entities. The authors cite Sheetz as explicitly continuing the court's efforts to restore the takings clause to the full-fledged constitutional status that the framers envisioned, removing any distinctions between legislative and administrative permitting conditions. The authors also state that Sheetz offers "tantalizing comments on other emerging takings issues" such as "suggesting" that state sovereign immunity cannot bar a takings claim. The authors project that the effect of Sheetz will be reflected in reduced costs for the development and purchase of new homes since state reliance on impact fees will have to give way to a return to governmental use of the general taxing system to pay for general infrastructure.
Prof. Donald J. Kochan posits that we should imagine a future in which the terminology "regulatory takings" is totally discarded. His article Involuntary Regulatory Servitudes: Correcting for "Regulatory Takings" Terminological Problems, asserts that the term is an imprecise and incomplete label that results in specialized, isolating, and segregated takings analysis. He says that the analysis should be focused on creating a consistent set of standards for reviewing all coercive transfers of property rights. Prof. Kochan's historical review dates back more than a century to Pennsylvania Coal's "too far" test and comparing that to the relatively recent use of the term "regulatory takings," which was first used judicially in 1955. He argues that the widespread use of the term thereafter gave rise to an unfortunate view and application that regulatory takings was some specialized version of general takings jurisprudence. Prof. Kochan contends that the better way is to look for regulation that amounts to a taking. Believing this distinction carries a significant difference, the "better way" then frames regulatory takings as a coerced servitude upon an individual's property that dictates compensation to make that individual whole again, meaning as close to the position the individual held prior to the imposition of the regulation. His approach presumes an objective market value based on a comparison between the effect of the regulation on one's bundle of rights, tying compensation to what a private party would have been required to pay to enforce such a limitation on the property owner. This results in a presumption that the government should pay the same amount a private party would, which may be rebutted to result in nonpayment in some cases based on the government's proper use of its police power.
In A Workable Common Law Baseline for Regulatory Takings, Prof. Adam J. MacLeod proposes replacing the balancing test in Penn Central with what he calls a common law baseline. He asserts that a baseline of rightful property use is needed for regulatory takings to show when a change in law adversely affects use rights enough to amount to a compensable taking. Prof. MacLeod uses "common law" not as indicative of judicial precedent but instead as encompassing the full set of rights, duties, and institutions that constitute the customary law of England and British North America. In his view, if the Takings Clause governs all expropriation of property rights and the right to determine use of a property is a property right that can be altered by government enactment of any new rule, a dilemma exists in regulatory takings. He argues that resolution of the dilemma requires a baseline independent of sovereign power to change the rules. Prof. Macleod contends that a common law baseline can act as a limitation on the power of public officials to abrogate vested private rights. A property owner would need to show vested rights are affected, thereby raising a presumption of pre-existing lawful use, which if not rebutted requires a finding that the new enactment affecting that owner's rights is a taking. But the proposed new definitions and presumptions involved in the common law baseline are not definitely shown to eliminate or necessarily streamline the consideration of relevant evidence and factors relied upon in the past.
Sam Spiegelman's essay Penance for Penn Central: How to Treat Property Rights Properly characterizes the SCOTUS ruling in this case as wrongheaded for purportedly not creating a takings test, but instead only listing some factors to consider in determining if a regulation is a compensable taking. Spiegelman states that his article aims to reverse the decades of doctrinal misfeasance occurring by courts' inappropriate applications of Penn Central. He does so by highlighting certain sections in the Bill of Rights where private property stands in "poor relation" to other rights. This comparison indicates that a truly constitutional interpretation of the Takings Clause requires a focus on rights inherent in property instead of the loss of value caused by a regulation. Spiegelman contends that qualitative analysis based on rights and interests is a much better way of determining if any taking has occurred than its quantitative counterpart regardless of the magnitude of resultant loss. Such a test purportedly fosters a degree of certainty that permits far greater coherence between and among courts than the "value approach," which he says has produced a "crazy-quilt pattern" of regulatory takings precedents.
Legislation
Delaware adopts legislation to facilitate transfers of leases for manufactured homes on death of a tenant. A rental agreement for a lot in a manufactured home community transfers automatically to a buyer or transferee from a previous homeowner or the heirs who were occupants of the home at the time of the death of the deceased, otherwise to an heir for one year. A community owner may not terminate a lease on account of the death of a tenant if the estate or heirs transfers the lease to any non-tenant occupant already living in the home at the time of the tenant's death. 85 Del. Laws 206.
Delaware adopts the Uniform Real Property Transfer on Death Act. A deed must contain the essential elements and formalities of a properly recordable inter vivos deed, including notarization of all signatures, state that the transfer to the designated beneficiary is to occur at the transferor's death and must be recorded before the transferor's death. Delivery to the grantee is not required. 85 Del. Laws 212.
Illinois allows law enforcement officers to remove persons unlawfully on land based on criminal trespass. The legislation is apparently aimed at the growing phenomenon of squatting. 2025 Ill. Laws 29.
Illinois creates a private right of action against deed fraud. Any person who knowingly files or causes to be filed a deed or instrument that is fraudulent, unlawfully altered, or intended unlawfully to cloud or transfer the title of any real property may be held liable to the rightful property owner in a civil action for legal or equitable relief. 2025 Ill. Laws 382.
North Carolina adopts provisions for expedited removal of unauthorized persons from residential property. The proceeding is available where a person unlawfully occupies a property after being directed to leave by the owner, provided (1) the occupant is not a tenant, (2) the occupant has no claim under a contract for deed, and (3) there is no litigation pending pertaining to the property. The proceeding is commenced by complaint, and a hearing must be held within four hours after service on the unauthorized person. The act provides civil remedies for wrongful removal. 2025 N.C. Sess. Laws 88.
Oregon amends procedures for tax foreclosures. The law requires the county to engage in diligent efforts to locate property owners and to alert them of the amount of real property taxes due. The county must also give notice of any surplus. 2025 Ore. Laws 475.
Oregon creates lien for recovery of costs incurred by state fire marshal in controlling or extinguishing fires. If a person is willful, malicious or negligent in the origin or subsequent spread of a fire, a lien arises in favor of the fire marshal, which is enforced by foreclosure. 2025 Ore. Laws 542.
Oregon requires residential landlords to test water for arsenic and other contaminants. The testing applies to exempt wells or wells as a source of drinking water and is within a groundwater management area. Testing must occur at least once each year, and the landlord must deliver the results to the tenants. 2025 Ore. Laws 574.
Texas enacts law making real property theft and title fraud felonies. Real property theft is defined as acts or attempts to bring about a transfer or purported transfer or sale of an interest in real property or an encumbrance on title without the consent of the owner. Title fraud is defined as intentionally or knowingly making a materially false or misleading written statement to obtain real property. 2025 Tex. SB 16.