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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.).

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 ...

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 ...

bankruptcy law, civil procedure, evidence, and real property law

In bankruptcy cases filed under chapter 7 of the Bankruptcy Code, 1 an individual debtor turns over the debtor's nonexempt property to the trustee in bankruptcy. 2 The trustee then sells that property 3 and distributes the proceeds to creditors in accordance with their respective priorities. 4 In most chapter 7 cases, unsecured creditors receive virtually nothing on account of their claims. 5 In a chapter 13 case, by contrast, the trustee does not collect and sell property of the estate, including debtor's nonexempt property, 6 but the debtor must pay his or her creditors out of future earnings or other future income 7 over the duration of the plan, generally three to five years. 8 The centerpiece of the "bankruptcy abuse prevention" aspect of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) 9 was the addition to the Bankruptcy Code of provisions dealing with what Congress called "Needs-Based Bankruptcy" 10 and what others have familiarly called "means-testing." 11 Through these amendments Congress provided that the court may dismiss a chapter 7 bankruptcy case filed by an individual debtor whose debts are primarily consumer debts 12 if the granting of relief under chapter 7 "would be an abuse of the provisions of [chapter 7]." 13 In applying the standard of abuse, the court is directed to presume that abuse exists if the debtor's "current monthly income" (as defined in � 101(10A) of the Bankruptcy Code) 14 reduced by certain specified monthly expenses 15 and ...

bankruptcy law, civil procedure, contracts law, criminal law procedure, and real property law

One of the most persistent problems in contemporary U.S. bankruptcy law is determining the extent of a bankruptcy estate's authority to assert rights that, absent bankruptcy, would belong to creditors. 1 It is well-accepted that, under the Bankruptcy Code, a bankruptcy estate has authority, sometimes called "standing," to enforce the rights and causes of action held by the debtor at the time of the bankruptcy filing. But what about a claim that might have been brought against third parties by a creditor who hypothetically extended credit to and took a judgment against the debtor at the time of bankruptcy? Courts readily acknowledge an estate representative's power to assert claims to avoid various transfers for the benefit of creditors. 2 This article, however, focuses on the creditor rights and powers granted to an estate representative under � 544(a) of the Bankruptcy Code, often referred to as the Code's "strong arm" provision. To bankruptcy practitioners, the issue is a familiar one, but it is one that has never been squarely addressed or put to rest by the Supreme Court. The plain language of � 544(a) affords broader authority to an estate representative to step into the shoes of a hypothetical judgment creditor than most courts have been willing to recognize. Indeed, few courts take its language literally. In a relatively rare departure from the usual rules of statutory construction, some courts and commentators, believing they understand what Congress must have intended, afford closer attention to the language Congress declined ...

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 ...

administrative law, estate, gift trust law, governments, real property law, securities law, torts, and transportation law

Cities -- from companies to individual citizens to local governments -- have shown that they are capable of operating more efficiently by incorporating, what were at one point, technological disruptions and leveraging them to achieve efficiency. Typically, these moves toward efficiency start with companies and individuals. Local governments usually are the last to the table. Such has been the case with the adoption and incorporation of most major disruptions -- from automobiles to the television to the Internet. It has been shown, historically, that the full benefits of disruptive technologies are only achieved once a certain environment exists. 1 The creation of distributed networks and the looming rise of the Internet of Things have already created a new set of challenges for regulators. 2 As devices that leverage the Internet (such as personal computers, smart phones, and wearable devices) continue to be used in order to execute seemingly impossible tasks, signs that another such disruption, demanding new, clearer regulations become more apparent. Another issue that is becoming clearer is the heightened importance of information sharing required in order for such tasks to take place. In the financial industry, high frequency trading 3 and unfettered algorithmic arbitrage has already led to record profits for banks, followed directly by the crash of 2007. 4 In response to these developments, some financial institutions have started to leverage the collective computing power of their users in order to combat these asymmetries, improve safety of their assets, and reduce incidence of fraudulent ...

computer internet law, environmental law, evidence, governments, insurance law, real property law, and transportation law

INTRODUCTION The proliferation of smart cities and the advancement of data-driven solutions to both the common and complex problems in our society have revolutionized the world we live in. Our experiences as consumers allow us to receive personalized offers, configure the music we hear, choose the best route for us to drive, and monitor our own health and sleep habits. Indeed the digital revolution touched city hall as more cities analyze data to drive performance and involve citizens. In turn it has provided insight to many government services, from public health and safety to social services, and citizen engagement. The City of Chicago, one of the leaders of the smart cities movement nationally, has a variety of noteworthy initiatives, using predictive analytics to improve public health inspections of restaurants and pioneering the use of sensors to monitor key indicators across the city. New Orleans officials apply predictive models to spot vacant properties and prevent blight. Boston firefighters take advantage of real-time information about building hazards before and as they reach the scene of a fire. However, fundamentally, cities still operate with a set of rules developed in the wake of Tammany Hall that ushered in progressive government. At the time those rules controlled how public officials procured goods and services, hired and promoted employees, and slowed corruption by requiring employees to operate within narrow parameters. The definition of an accountable government over the last 100 years has been how well it follows rules, not how much it accomplishes. For ...

contracts law, governments, insurance law, international trade law, labor employment law, real property law, and tax law

In 2016, federal courts in the United States Court of Appeals for the Eleventh Circuit handed down several notable opinions on federal tax issues. This Article surveys four of those opinions involving the collection of foreign taxes pursuant to a tax treaty, the characterization of income from the sale of real estate as capital gains, and self-employment taxes on deferred compensation. 1 I. Boree v. Commissioner The Internal Revenue Code (Code) 2 provides for different rates of individual income tax for ordinary income earned through business activities and long-term capital gain income. Capital gain is "income representing proceeds from the sale or exchange of a capital asset... ." 3 "Capital asset" is not directly defined in the Code, but does not include "property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business." 4 Thus, when a taxpayer disposes of some property that has been held for more than a year, the question arises as to whether that property was held for sale as part of the taxpayer's business, or was instead purchased as an investment. In the Eleventh Circuit, determining whether an asset is a capital asset requires consideration of seven factors set out in the old United States Court of Appeals for the Fifth Circuit case of United States v. Winthrop. 5 These factors include the following: (1) The nature and purpose of the acquisition of the property and the duration of the ownership; (2) the ...

banking law, bankruptcy law, civil procedure, governments, and real property law

I. Introduction This Article is a review of select bankruptcy opinions issued in 2016 by the United States Court of Appeals for the Eleventh Circuit. 1 The selected bankruptcy opinions surveyed and summarized by the Authors involve the following bankruptcy topics: Stale Debt Collection, the Dischargeability of Debts, Exemptions, Contempt, Judicial Estoppel, and the Rules of Procedure. During 2016, the Eleventh Circuit addressed some "exceptionally important" issues arising in consumer bankruptcy cases and created a circuit split requiring resolution by the United States Supreme Court. 2 II. Stale Debt Collection In the last three years, the Eleventh Circuit has taken a minority position on an issue that tests the relationship between the Fair Debt Collections Practices Act (FDCPA) 3 and section 501(a) of the Bankruptcy Code. 4 Under the FDCPA, "debt collectors" 5 are prohibited from using "unfair or unconscionable means to collect or attempt to collect any debt." 6 Specifically, the FDCPA prohibits debt collectors from collecting any amount of debt unless there is an agreement creating the amount of debt or the collection of the amount of debt is permitted by law. 7 Furthermore, debt collectors violate the FDCPA if their conduct in connection with collecting a debt is "false, deceptive, or misleading." 8 Under � 501(a), "[a] creditor ... . may file a proof of claim" in a bankruptcy case for a debt owed to it by the debtor. 9 As pointed out by the Eleventh Circuit in ...

banking law, civil procedure, civil rights law, contracts law, governments, military veterans law, real property law, and transportation law

The past year saw a mix of results in class-action litigation in the United States Court of Appeals for the Eleventh Circuit. with both plaintiffs and defendants notching victories in class certification controversies. 1 Of significance to class-action practice was the court's first foray into applying the challenging new Article III 2 standing decision of the Supreme Court of the United States, Spokeo, Inc. v. Robins. 3 The court also continued to address arbitration issues arising in putative class actions, while the prospects for curbing the availability of arbitration as an alternative to class litigation appeared to fade with the changing political climate. 4 I. Class Certification and Predominance: Brown v. Electrolux and Carriuolo v. General Motors Co. The Eleventh Circuit handed Electrolux a major victory in Brown v. Electrolux Home Products, Inc. 5 when it vacated the classes certified in an opinion authored by Judge William Pryor. 6 The opinion was not an unqualified victory, however, as the court was unwilling to adopt key arguments made by Electrolux and remanded the case for further class certification proceedings without a great deal of direction on certain key issues. 7 The case came to the court from the United States District Court for the Southern District of Georgia by interlocutory appeal under Rule 23(f) of the Federal Rules of Civil Procedure. 8 The district court had certified separate California and Texas classes consisting of persons who had purchased Frigidaire front-loading washing machines of a particular type. The underlying claim ...

banking law, bankruptcy law, civil procedure, governments, and real property law

I. Introduction The 2016 survey period yielded noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit, 1 several of which involved issues of first impression. This Article analyzes recent developments in the Eleventh Circuit, including significant rulings in the areas of statutory interpretation and class actions. II. Statutory Interpretation A. The Bankruptcy Code Does Not Shield a Debt Collector From Liability Under the FDCPA For Filing a Proof of Claim on a Debt It Knows to be Time-Barred. In Johnson v. Midland Funding, LLC, 2 the Eleventh Circuit resolved an apparent tension between the Bankruptcy Code and the Fair Debt Collection Practices Act (FDCPA), 3 holding that the Bankruptcy Code provision allowing creditors to file proofs of claim for debts which appeared on their face to be time-barred did not preclude liability under the FDCPA for debt collectors filing proofs of claim for debts they knew to be time-barred. 4 The consolidated appeal arose when two individual plaintiffs (the Debtors) sued their respective creditors (the Creditors) under the FDCPA after the Creditors filed proofs of claim seeking to collect on time-barred debts in the Debtors' Chapter 13 bankruptcy cases. 5 Even though the statutes of limitation on the debts were six years, 6 the date of the last transactions on the subject accounts for both Debtors was more than six years before the Debtors filed for bankruptcy. 7 Both Debtors alleged that the Creditors violated the ...