Topic
Equitable conversion
About: Equitable conversion is a research topic. Over the lifetime, 66 publications have been published within this topic receiving 587 citations.
Papers published on a yearly basis
Papers
Posted Content•
TL;DR: In this article, the authors argue that if we look, not only at the traditional rules governing future interests, but also at all the statutes that regulate property and market relationships, as well as the social customs embodied in our property institutions, we can see that our legal system regulates the bundles of property rights that can be created and enforced, to improve efficiency, but to shape the contours of social relationships so that they comply with the norms defining a free and democratic society.
Abstract: How should we think about property and property law both descriptively and normatively? This article suggests we consider this question by focusing on justifications for the estates system which limits the bundles of property rights in land that are recognized by the legal system. Thomas Merrill and Henry Smith have usefully argued that what they call the "numerus clausus" principle is justified because it lowers the information costs of property. While there is a lot to this argument, I suggest that if we look, not only at the traditional rules governing future interests but at all the statutes that regulate property and market relationships, as well as the social customs embodied in our property institutions, we can see that our legal system regulates the bundles of property rights that can be created and enforced, not only to improve efficiency, but to shape the contours of social relationships so that they comply with the norms defining a free and democratic society. Some of those regulations attempt to prevent the negative externalities that flow from unregulated property bundles, such as the current financial crisis which appears to have been caused by the marketing of subprime, variable rate mortgages that were securitized into incomprehensible packages whose real market value hidden from purchasers who took unreasonable risks in buying them. But other laws regulating property bundles are based on norms that define our way of life, such as those that outlaw property relations characterized by feudalism, slavery, indentured servitude, or racial and religious restrictions on land ownership. Still others protect consumers by setting minimum standards for property and other market transactions. This approach to property differs from the traditional alienability approach, the legal realist bundle of rights approach, the efficiency approach, the libertarian and liberal egalitarian approaches, and the personality, human flourishing, and virtue ethics approaches by framing descriptive and normative inquiries about property and property law by reference to the quasi-constitutional, structural role that property law plays in defining the appropriate contours of human relationships in a free and democratic society.
78 citations
Journal Article•
TL;DR: In this article, the authors consider the problem of post-breach negotiation in real estate contracts, where the parties are forced to decide whether to go through with the deal as originally intended, or instead compensate the wronged party monetarily.
Abstract: INTRODUCTION When two people agree to legally bind themselves to a contract, and one of these parties subsequently violates that agreement, the law has a difficult question to answer. It must determine whether the breaching party should be forced to go through with the deal as originally intended, or instead compensate the wronged party monetarily. The established common law of contract remedies in U.S. jurisdictions treats specific performance as discretionary. (1) Thus, courts may, in special circumstances, force the breaching party to go through with the bargain, but the default rule is cash payment to put the aggrieved party in as good a position as she would have been had the contract been completed. (2) This preference for cash payment, however, is reversed when the contract deals with a parcel of land. A land transaction triggers an almost automatic presumption that specific performance is appropriate. (3) This presumption, although longstanding and respected in the law, stands on some rather shaky logical grounds. (4) First, in some areas of the specific performance doctrine, the application of the presumption is illogical and inconsistent. Based on the unique properties of the land in question, it makes some sense on historical and equitable principles that aggrieved buyers should be able to demand specific performance of a real estate contract. (5) In some jurisdictions, however, the law offers specific relief to sellers as well, forcing the buyer to take the property and give the seller a cash payment. (6) Cash, of course, is the most fungible property imaginable, and yet the magic of land's favored status allows specific performance to produce it. Second, the automatic availability of specific performance tends to overcompensate parties harmed by the breach. (7) This occurs because once a breach materializes, the aggrieved party has an option either to force completion at the contract price via specific performance, or to seek compensation based on her expectations when the deal was made. (8) Real estate markets have been known to vary greatly over relatively short periods, and litigation over contract disputes often takes many months. Plaintiffs, then, have the luxury of observing the market for a period of time after the contract has been finalized to decide which remedy to pursue. This option confers upon a plaintiff a guarantee that she will be compensated at least in the full amount of her expectation, but it also creates a significant chance that she can improve her situation. (9) Overcompensation is a problem in contract law, which operates most efficiently when the damages awarded match the actual harm done. (10) Last, specific performance provides compensation that necessarily includes a party's subjective valuations of property. (11) Apart from these transactions in land and a few other specialties such as heirlooms, contract law does not take these idiosyncratic viewpoints into account. (12) Wherever possible, valuations in contract law are based upon objective market-driven observations to preserve predictability and to allow for efficient breach. (13) A party seeking to breach efficiently could still use some of her breach savings as a payoff to prevent the other party from seeking specific enforcement, (14) but the increased transaction costs of this post-breach negotiation will tend to make contract formation more costly and inefficient. The approach of general contract law, in which the party seeking specific performance must establish why it is logically justified, should be applied equally to contracts in land. Developments in the field of professional real estate appraisal have made it possible to ascertain accurately the market value of real property. For cases in which appraisers' methods fail, doctrines already in place to govern specific performance in general contract law can be utilized in favor of the aggrieved party. In a world in which land ownership is often seen as an investment in nearly fungible properties, in which real estate appraisers have increasingly scientific techniques, and in which judges have increased discretion in granting specific performance when the merits of the case actually require it, land's favored status is an increasingly undesirable relic of the Middle Ages. …
56 citations
Patent•
18 Nov 2003
TL;DR: In this article, a system and method for conducting a home equity sales (HES) program enables a real estate property owner to sell a partial equity ownership interest in a real-estate property.
Abstract: A system and method for conducting a home equity sales (HES) program enables a real estate property owner to sell a partial equity ownership interest in a real estate property. This allows the property owner to sell the interest outright to an investor and receive compensation for the sale of the interest. The property interests of the property owner and the investor are both recorded in property records relating to that particular property. The property owner may sell multiple interests in the same property and an investor may also purchase these multiple interests.
37 citations
TL;DR: The notion that a "license" is simply a "contract not to sue" has become a commonplace in both copyright and patent law as mentioned in this paper, and this notion is conceptually flawed, and has been become a straightjacket channeling juristic reasoning into unproductive channels.
Abstract: The assertion that a 'license' is simply a 'contract not to sue' has become a commonplace in both copyright and patent law. I argue that this notion is conceptually flawed, and has become a straightjacket channeling juristic reasoning into unproductive channels. At root, a license is not a contract, but a form of property interest. It may be closely intertwined with a set of contractual relationships, but its nature and consequences cannot be satisfactorily explained from within the world of contract doctrine alone. In this article, I seek to explain the complementary but parallel roles played by property and contract doctrine in creation of the various forms of legal interests we refer to as 'licenses.' Each doctrine has its own set of governing formalities that afford titleholders various means through which to create and protect use privileges granted to others, while still retaining residual title for themselves. I argue that clarifying the extent to which licenses are exercises of powers conferred by property rather than contract law provides a key to proper application of Section 204 of the Copyright Act of 1976, which has been (erroneously) construed as a statute of frauds governing contract formation, as opposed to one governing a specific form of property conveyance.
34 citations
Patent•
18 Nov 2003
TL;DR: In this article, a system and method for conducting a home equity sales (HES) program enables a real estate property owner to sell a partial equity ownership interest in a real-estate property.
Abstract: A system and method for conducting a home equity sales (HES) program enables a real estate property owner to sell a partial equity ownership interest in a real estate property. This allows the property owner to sell the interest outright to an investor and receive compensation for the sale of the interest. The property interests of the property owner and the investor are both recorded in property records relating to that particular property. The property owner may sell multiple interests in the same property and an investor may also purchase these multiple interests.
33 citations
Related Topics (5)
Performance Metrics
| Year | Papers |
|---|---|
| 2017 | 1 |
| 2016 | 2 |
| 2015 | 2 |
| 2014 | 3 |
| 2013 | 1 |
| 2012 | 5 |