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недвижимое имущество, недвижимость, недвижимая вещь, пра во собственности, государственная регистрация недвижимости, REAL property, immoveable thing, immoveables, land registration, and real property law

Статья представляет собой комментарий к положениям ст. 219 ГК РФ, уста навливающей момент возникновения права собственности на вновь созданное недвижимое имущество. В статье анализируются сложные теоретические и практические проблемы, которые разрешаются в комментируемой нор ме (соотношение фактического и юридического возникновения недвижимой вещи, момент возникновения права на недвижимость, применение этой нор мы к отдельным недвижимым вещам и пр.).
The paper represents the commentaries on the provisions of Article 219 of the Russian Civil Code which purports to be the cornerstone of Russian real property law, establishing the moment from which the property over newly erected immoveable property arises. The paper consists of analysis of either theoretical or practical problems that could be considered on the basement of Article 219 of the Civil Code (correlation between factual and juridical existence of the immoveable property, the moment of the accrual of the real right over the real property, application of Article 219 of the Civil Code to specific types of immoveable property, etc.).

civil procedure, copyright law, governments, and real property law

I. Introduction Susette Kelo, maybe one of America's most famous property owners, had become a symbol representing the struggles property owners encounter with municipalities' use of eminent domain power. 1 While Kelo v. New London was determined by the Supreme Court in favor of the municipality, the decision flamed public as well as legal backlash across the United States. 2 The results in Kelo inspired states to amend their constitutions and takings laws in regard to the compensation requirement in eminent domain. 3 It seems that Kelo had exhausted every stage of procedure and available venue to fight against the expropriation of her home. 4 However, though Kelo fought hard on the legal field, her case raises questions about what she really needed, and the ability of current takings law to provide owners with just compensation. In his book, Little Pink House , Jeff Benedict describes when Kelo met with Justice Richard N. Palmer. 5 Justice Palmer was one of the four Connecticut Supreme Court Justices who voted with the majority against Kelo and her neighbors. 6 Benedict describes how Justice Palmer approached Kelo years later to offer his condolences over the matter. 7 Benedict describes Kelo as speechless. 8 Then, according to Benedict, the most surprising moment in Kelo's journey for justice came: "Justice Palmer turned to Susette, took her hand, and offered a heartfelt apology. Tears trickled down her red cheeks. It was the first time in the twelve-year saga that anyone had said the words ...

business corporate law, mergers acquisitions law, real property law, securities law, and tax law

Introduction Supercharged IPOs are relatively recent and controversial financial transactions that have dramatically increased in popularity over the past few years. 1 These transactions allow owners of a company to create and extract additional value in an initial public offering (IPO) through the use of beneficial tax structuring. Owners who supercharge an IPO can earn significantly more than they would have in a traditional IPO, and the extra money comes in part from the government (in the form of a reduction of taxes) and in part from the public investors through a contractual arrangement between the public company and the pre-IPO owners. 2 Although these transactions have become a significant part of the IPO market - transferring billions of dollars from the government and the public to pre-IPO owners 3 - they have received surprisingly little attention from scholars. Where did the supercharged IPO come from, and why, in the past few years, has it spread so quickly across the financial marketplace? This Article attempts to answer these questions by examining the various types of supercharged IPOs, the different sets of costs and benefits associated with each, and the laws that are used to justify them. Existing academic literature poorly addresses the differences between supercharged IPOs, which has resulted in misguided explanations of why and whether they should exist, both as a legal and as a normative question. Through a closer look at the various types of supercharged IPOs, this Article explores the legal and normative justifications for them, and ...

banking law, criminal law procedure, education law, governments, real property law, and transportation law

Introduction The last thirty years have seen dramatic growth in civil consumer debt and criminal justice debt, as well as abuses associated with the collection of such debts. Consumer debt includes amounts owed for personal, family, and household issues, including mortgages, medical bills, credit card balances, auto loan debt, and student loan debt. 1 Criminal justice debt includes charges for bail, fines, and fees. 2 Consumer debtors and individuals with criminal justice debt experience many of the same abuses and consequences, including harassment by collectors, adverse credit reports, restricted financing opportunities, embarrassment, and strain on family resources. Additionally, criminal justice debt can lead to denial of welfare benefits, suspension of driver's licenses, disenfranchisement, arrest, and incarceration. 3 While federal legislative and regulatory efforts address problems associated with the abusive collection of civil debt, similar efforts have not been used to combat the abusive collection of criminal justice debt. 4 The failure to develop these efforts is especially disconcerting because of the additional collateral consequences associated with criminal justice debt. 5 The thesis of this Article is that just as abuses in civil debt collection created a need for a federal statutory and administrative solution, abuses in the assessment and collection of criminal justice debt demand a similar solution. The following examples illustrate some of the differences in the treatment of abuses in the collection of consumer and criminal justice debt. Case 1: Vehicle Financing: Westlake Services, LLC and its wholly owned subsidiary, Wilshire Consumer ...

civil procedure, computer internet law, criminal law procedure, education law, family law, legal ethics, and real property law

Currently, two of the hot topics in legal academia are "access to justice" and experiential learning. 1 The justice system's failure to adequately serve all people irrespective of wealth and position has brought access to justice to the forefront. Experiential learning has made the headlines due to the recent changes in the American Bar Association ("ABA") standards regarding the incorporation of experiential learning into the law school curriculum. Despite being hot topics, these issues are often neglected or given short shrift in the law school curriculum, particularly in the first year. Law schools grapple with how to work towards closing the legal aid gap and helping their students become practice ready. This article discusses an exercise that the legal-writing faculty at Suffolk University Law School integrated into the first-year curriculum to address this shortfall. 2 Specifically, legal-writing faculty partnered with a pro-bono organization to introduce students to the role that they can play in closing the legal aid gap. The exercise provided students with an opportunity to collaborate and research real-world problems under time-pressured conditions. This article explains our experience integrating real-world legal research into a legal research and writing class in a social justice context. It discusses why to incorporate the exercise as well as how to implement it. Finally, it examines the benefits and challenges involved. WHAT: PROVIDE ACCESS TO JUSTICE WHILE INTEGRATING REAL-WORLD LEGAL RESEARCH INTO THE 1L CURRICULUM In 2016, the American Bar Association's Standing Committee on Pro Bono and Public ...

banking law, civil procedure, civil rights law, governments, labor employment law, public health welfare law, and real property law

Introduction Since the passage of the Fair Housing Act (FHA) in 1968, enforcing the Act's policy to "provide, within constitutional limitations, for fair housing throughout the United States" 1 has been a herculean task. Although the Act has achieved a measure of success in curbing the most blatant forms of racial discrimination, 2 the FHA has failed in its broader goal to provide for truly fair housing. 3 This is particularly true in the context of mortgage lending. Even controlling for income and other demographic factors, blacks and Hispanics tend to own homes at much lower rates than otherwise comparable whites. 4 While its sources are myriad, the relationship between the "homeownership gap" and wide racial wealth gap is glaring. 5 One report estimates that closing the homeownership gap would narrow the overall racial wealth gap in the United States by as much as one-third. 6 Civil rights advocates have long argued that discriminatory practices in the mortgage lending industry itself - including discrimination in the underwriting of mortgages, the "redlining" of minority neighborhoods by lenders, 7 and predatory lending practices - have perpetuated and reinforced the homeownership gap. 8 And until recently, the various laws proscribing discrimination in mortgage lending - including the FHA, Equal Credit Opportunity Act (ECOA), and Community Reinvestment Act (CRA) - were inadequately enforced. 9 The half-century era of under-enforcement came to an abrupt end in the aftermath of the Great Recession. 10 Practices that pervaded ...

banking law, civil rights law, family law, governments, and real property law

INTRODUCTION Mortgage credit became less available with the onset of the Great Recession. The Federal Reserve's low interest rates and quantitative easing policies have kept interest rates at historically low levels. As such, lending should have increased following its traditional relationship to low interest rates. As interest rates decrease, we expect to see the demand for credit increase. Unfortunately, the supply of credit has receded as mortgage lenders have pursued a flight-to-quality approach by focusing on the credit needs of borrowers considered less risky: those with high credit scores. In all likelihood, uncertainty is making the flight to quality worse. The reform of the housing finance system is yet to be finished; in particular, decisions have yet to be made about what to do with the two housing government-sponsored enterprises (GSEs) since they were taken into conservatorship at the onset of the Great Recession. The future of the Federal National Mortgage Association ("Fannie Mae") and the Federal Home Loan Mortgage Corporation ("Freddie Mac") has been hotly contested. There is no consensus between Republicans and Democrats, or within either party, about what that future should look like. Should the current GSEs be replaced with something similar in the future? Should they be replaced with a purely private alternative? Should they be replaced with something between these two extremes? Similarly, the role of the Federal Housing Administration in a reformed system remains open to debate. Under the new Administration and Congress, it is uncertain when or if such reforms will occur. ...

banking law, real property law, and tax law

INTRODUCTION Virtually no attention has been paid to cyclicality in debates over access to mortgage credit, despite its importance as a driver of tight credit. Cyclicality refers to the propensity of housing markets to undergo bubbles in which real estate values soar, then crash, wiping out home equity. These real estate booms are typically accompanied by bubbles in mortgage credit in which lenders cut underwriting standards, producing a surfeit of bad loans. During downturns, these cycles artificially impede access to mortgage credit. During upswings, these cycles make homeownership unnecessarily precarious for those who attain it. When mortgage credit is expanding, a cycle can ensue in which growth in home loans fuels a surge in home prices beyond sustainable levels based on fundamentals, setting up a future bust. At some point, home prices surpass the purchasing power of homebuyers. Then demand starts to fall and home prices start to slip. A slowdown in the economy ensues. Newly-unemployed borrowers who are having difficulty making their loan payments discover, due to loss in home equity, that they can no longer retire their loans by selling their homes or refinancing their mortgages. With no way out, distressed borrowers start defaulting on their loans, further depressing home prices and household purchasing power. Production is slashed, layoffs ensue, and the economy goes into recession. At that point, the cycle reverts from a glut to a paucity of credit. Banks, reeling from loan losses, curtail lending in order to hoard cash. Without intervention, the economy may ...

communications law, computer internet law, public health welfare law, real property law, tax law, and transportation law

INTRODUCTION The issues this symposium is grappling with are critically important and complex. There is no one explanation for why access to mortgage credit remains so tight this far into the housing recovery, nor a silver bullet that would metaphorically recover the 6.3 million missing loans that should have been made between 2009 and 2015, were today's credit conditions similar to those that prevailed pre-crisis. (Goodman, Zhu & Bai 2016). Nor is there a consensus on why our national homeownership rate has fallen to the level not seen since the Ballad of the Green Berets was number one on the Billboard Top 100 (Billboard Charts Archive 1966), how much more it could fall, or how to reverse this trend. Yet despite these uncertainties, in my remarks, I hope to convey three main points: 1. The homeownership and rental markets are inextricably linked; by limiting access to homeownership, excessively tight mortgage credit standards increase the demand for rental housing. Conversely, a responsible expansion of the mortgage credit box should ease pressure in the rental market. 2. Federal housing policy should strike a more appropriate balance between homeownership and rental subsidies. Through tax incentives and appropriations, the federal government spends in excess of $ 190 billion annually to support housing. More than 75% of this support is devoted to homeownership subsidies. (Fischer & Sard 2016). Yet rental households, on average, have incomes about half that of households who own their homes. (Miller 2014). Although federal rental assistance provides ...

banking law, business corporate law, civil rights law, criminal law procedure, insurance law, and real property law

INTRODUCTION In 1968, elected officials and bankers in Boston designed a mortgage program in the wake of the urban rioting that followed the assassination of Reverend Martin Luther King. It was called Boston Banks Urban Renewal Group, or B-BURG, and the legacy of that program is one of foreclosure, redlining, and blockbusting. "Drive-by" home inspections, 100% government guarantees, lack of community input, and no down payments were just some of the problems that plagued the program from the outset and led to record foreclosure rates in just a few years, as detailed in the book The Death of an American Jewish Community: A Tragedy of Good Intentions . (Levine & Harmon 1992). Some twenty years later, most banks had become wary of inner-city mortgage lending and had largely stayed away from engaging in Boston's communities of color. Mortgage lending suffered and bank branches were closed in the communities that needed them most. (Dreier 1991, 18-19). Eventually, a 1989 study by the Federal Reserve Bank of Boston was leaked to the press, and found a pattern of racial bias in Boston's mortgage lending over the intervening period that could not be explained by income, credit history, or other legitimate loan underwriting factors. (Munnell et al. 1992, 50-51). In response to public outcry and a community-led campaign about the Federal Reserve study, representatives from the Massachusetts Housing Partnership (MHP), the Massachusetts Bankers Association, the Commonwealth of Massachusetts, the City of Boston, the Massachusetts Affordable Housing Alliance (MAHA), and other community ...

labor employment law and real property law

INTRODUCTION A historic decline in the homeownership rate has generated substantial discussion over the future of homeownership in the United States. After peaking at 69.2% in 2004, the national homeownership rate declined steadily to 63.7% in 2015 according to the Housing Vacancy Survey. Although this decline returned the overall homeownership rate to approximately the level it held between 1985 and 1995, the homeownership rates for multiple age cohorts have fallen well below their 1995 levels. For example, the homeownership rate for households between ages 35 and 44 increased from 65.2% in 1995 to 69.3% in 2005 before falling to 58.5% in 2015. The overall homeownership rate has not fallen as far as these age-specific rates only because the aging of the population during this period has increased the number of households in older age cohorts where homeownership rates are highest. In the face of the decade-long decline in homeownership, considerable uncertainty continues to exist about both the factors that have contributed to the decline and the homeownership rate's future trajectory. Discussions of the homeownership rate's decline point to multiple contributing factors, including high foreclosure rates, tightening credit standards, falling household incomes following the Great Recession, increasing student loan debt, rising rental housing costs, and changes in households' preferences and attitudes toward homeownership and renting. Existing research has not conclusively teased apart the relative contributions of each factor. Instead, the trajectory of the homeownership rate reflects the complex interplay of these factors with other demographic, economic, and housing ...

banking law, civil rights law, governments, international trade law, public health welfare law, and real property law

INTRODUCTION According to recent Urban Institute estimates, 6.3 million more mortgage loans might have been made between 2009 and 2015 if underwriting standards prevailing in 2001, when lending was relatively safe, had been used. (Goodman, Zhu & Bai 2016, 1). This credit contraction post-2008 disproportionately affected lower-income and minority households. (Goodman 2017, 235, 250). There are perhaps many reasons for the insufficient amount of mortgage lending to low- and moderate-income households and to communities of color, but one that is perhaps overlooked is that the big banks have decided not to do it because they don't have a workable business model for it. (Andriotis 2016, 1; McCoy & Wachter 2017, 4). The decisions by big banks to refuse to lend to this population of homeowners is not because of regulation and not because of credit scores. It is because the business model of lending to low- and moderate-income (LMI) borrowers and people of color does not work for the big banks. So if the big banks are pulling out of lending, what do we do to make sure that average Americans can get home mortgages? This in turn raises the question, why do we care about ensuring a sufficient provision of LMI mortgages? The first reason is access. Residential mortgages are the primary way that people get access to the middle class in this country. Disparities in access to credit also represent a huge aspect of inequality, which is the racial wealth gap. This shortage of ...

administrative law, banking law, civil rights law, governments, insurance law, real property law, torts, and transportation law

INTRODUCTION Mortgage credit has become very tight in the aftermath of the financial crisis. Although experts generally agree that it is poor public policy to make loans to borrowers who cannot make their payments, failing to make mortgages to those who can make their payments has an opportunity cost, because historically homeownership has been the best way to build wealth. And, default is not binary: very few borrowers will default under all circumstances, and very few borrowers will never default. The decision where to draw the line--which mortgages to make--comes down to what probability of default we as a society are prepared to tolerate. This Article first quantifies the tightness of mortgage credit in historical perspective. It then discusses one consequence of tight credit: fewer mortgage loans are being made. The Article then evaluates the policy actions to loosen the credit box taken by the government-sponsored enterprises (GSEs) and their regulator, the Federal Housing Finance Agency (FHFA), as well as the policy actions taken by the Federal Housing Administration (FHA), arguing that the GSEs have been much more successful than the FHA. The Article concludes with the argument that if we don't solve mortgage credit availability issues, we will have a much lower percentage of homeowners because a larger share of potential new homebuyers will likely be Hispanic or nonwhite--groups that have historically had lower incomes, less wealth, and lower credit scores than whites. Because homeownership has traditionally been the best way for households to ...

banking law, civil rights law, criminal law procedure, evidence, governments, insurance law, labor employment law, and real property law

INTRODUCTION Starting in 2007, the United States experienced a sharp decline in home mortgage originations, leading to a serious overcorrection of credit. The situation is slowly improving, with mortgage originations on the upswing since first quarter 2014 in total dollar volume. (US Mortgage Originations). Nevertheless, lenders are still too risk averse and millions of lower-income and minority households who would normally qualify are unable to get mortgages. Why should we care that the mortgage pendulum swung too far? Obviously, the homeownership proposition has become more freighted since the financial crisis of 2008. The collapse in home values and the ensuing wave of foreclosures were a shocking reminder of the financial risks that come with homeownership and the mortgage debt that most people incur to acquire a home. Yet despite those risks, the evidence shows that purchasing a home remains a powerful path--many would say the most powerful path--to building wealth for families of modest means. (Herbert, McCue & Sanchez-Moyano 2016, 6-7). This symposium issue asserts that society needs to redouble its commitment to access to mortgage credit while doing it smarter. The challenge going forward is to expand mortgage financing to underserved, creditworthy borrowers while boosting the success rate of mortgages for borrowers, lenders, and communities. In this issue, a talented array of housing finance experts diagnose the obstacles to affordable lending today and propose innovative solutions for making mortgage credit more sustainable. Although progress has been made to date (particularly in the area of ...

bankruptcy law, civil procedure, commercial law (ucc), contracts law, real property law, and torts

INTRODUCTION Over the past four decades, scholars from law, economics, and finance have written a great deal about the priority of debt investments in business entities. The attention is warranted because priority is one of the most important features of debt contracts and of capital structures of firms. Hierarchical capital structures can be complex, as they combine contractual priority (subordination agreements) with property rights over pools of assets (security interests). Moreover, security interests are relatively flexible tools for allocating contingent property rights. Finance scholars and practitioners know that a debtor allocates priority among its investors to combat agency problems and thereby minimize its cost of capital. In the first twenty years or so of scholarly work in this area, several theories emerged to explain how this is accomplished. As summarized below, the efficiency explanations for debt priority fall into two categories: (i) the static theories, which focus on the allocation of priority among creditors to exploit the comparative advantages in screening, monitoring and debt enforcement activities, and (ii) the dynamic theories, which focus on the allocation of priority among investors across time (e.g., earlier versus later creditors) to regulate the debtor's financial slack or liquidity and thus influence its investment choices. Alternative explanations contemplate distributional motivations that could lead to social welfare losses: a debtor could appropriate value from its unsophisticated or nonconsensual creditors (notably tort victims) by granting property interests in its assets to sophisticated creditors and thereby lowering its aggregate interest cost; the debtor's benefit from ...

bankruptcy law, contracts law, and real property law

I. INTRODUCTION The "executoriness" of a contract is a strange idea that plays an important role in bankruptcy reorganizations, not unlike the role truthiness plays in a Stephen Colbert anecdote. 1 It sounds attractive but produces ugly results, apparently clarifying while actually obfuscating. It cannot easily be analyzed because no one knows what it is. The justly famous name of a bankruptcy law giant, Professor Vern Countryman of Harvard, has too long protected it from a well-deserved demise, after becoming a monster that its creator, were he alive today, would not recognize. 2 It is especially troublesome applied to modern contracts like options, intellectual property licenses, and LLC operating agreements. Recently, an inexplicable endorsement of the concept by the ABI Commission 3 threatens to extend its baroque confusion to the next generation of troubled companies and their creditors. We propose an end to zombie contracts and the obsolete notions that keep them upright by abolishing the "material breach" rule that embodies executoriness as a prerequisite to application of section 365 of the Bankruptcy Code. Our goal is to offer the definitive discussion of executoriness and lay it to rest. We are greatly encouraged by the fact that the Bankruptcy Appellate Panel of the First Circuit has recently joined the Seventh Circuit in hastening its abolition. 4 The American Bankruptcy Institute appointed the Commission to Study the Reform of Chapter 11 in 2012. Its recent report has helpfully stirred debate on many important aspects of ...