Tanya Marsh | Wake Forest University (original) (raw)

Papers by Tanya Marsh

Social Science Research Network, Mar 3, 2011

The commercial real estate industry has been devastated by the current economic crisis, losing 40... more The commercial real estate industry has been devastated by the current economic crisis, losing 40% in value since the end of 2007. As a result, commercial real estate borrowers owe lenders $1 trillion more than their properties are worth. Although the federal government has been warned that the commercial real estate debt crisis may cause a double-dip recession, the government's response thus far has been to allow the market to work itself out. This Article argues that this laissez-faire response rests upon flawed assumptions about the structure of the commercial real estate industry. Compounding the problem, policymakers are incorrectly interpreting increased lending and transactions in the upper echelons of the market as a signal that their policies are working. Instead, the current approach has forced sales at distressed prices, numerous foreclosures, and, perhaps most importantly, significant small bank failures without any systemic benefits. Policymakers have seen these losses as an unfortunate but unavoidable cost of the recovery process and dismissed these small actors as not "systemically important." In fact, this Article argues that in the aggregate, small commercial real estate borrowers and small banks are vital to fueling job creation and economic recovery. By focusing primarily on the health of large financial institutions, borrowers, and properties without due consideration for the smaller players, the current policy may lengthen the economic crisis by placing further stress and uncertainty on some of the most vulnerable segments of the economy.

Social Science Research Network, 2013

The regulatory framework for financial institutions in the United States imposes significant cost... more The regulatory framework for financial institutions in the United States imposes significant costs on community banks without providing benefits to consumers or the economy that justify those costs. The Dodd-Frank Wall Street Reform and Consumer Protection Act builds on decades of "one-size-fits-all" regulation of financial institutions, an ill-conceived regulatory strategy that puts community banks at a competitive disadvantage as compared with their larger, more complex competitors. The imposition of regulatory burdens on community banks without attendant benefits ultimately harms both consumers and the economy by (1) forcing community banks to consolidate or go out of business, furthering the concentration of assets in a small number of megafinancial institutions; and (2) encouraging standardization of financial products, leaving millions of vulnerable borrowers without meaningful access to credit. Neither of these outcomes will protect consumers, the financial system, or the recovery of the American economy. Instead, radical reform of the existing regulatory structure is necessary to ensure the future of community banks.

SSRN Electronic Journal, 2007

Indiana law review, 2004

This Article takes a topical approach to the notable real property cases in this survey period, O... more This Article takes a topical approach to the notable real property cases in this survey period, October 1, 2002 through September 30, 2003, beginning with a discussion of the unresolved tension in Indiana lavs^between legal and equitable remedies for the breach of a contract concerning real estate. The Article then analyzes noteworthy cases in each of the following areas: (1) relationships between private parties; (2) title and recording issues; (3) land use law; (4) eminent domain law; (5) tax sales; and (6) developments in the common law of property. INDIANA LAW REVIEW [Vol. 37:1307 remedy at law and specific performance was not the proper remedy. Judge Sullivan, writing for the majority, began by setting forth his judicial philosophy about the availability of the equitable remedy. In part, the majority noted that the decision to grant specific performance is within the discretion of the trial court and that such judgments of the trial court are to be given deference because specific performance is a remedy that "sounds in equity."^The court also noted that '[i]t is a matter of course for the trial court to grant specific performance of a valid contract for the sale of real estate."^The court specifically rejected the Buyers' view that, under Indiana law, "specific performance is available [for the non-breaching seller] only when resale or foreclosure of the property is made difficult or impossible due to damage or loss."^Instead, the court found that the remedies provision of the contract provided that all remedies, legal and equitable, were available to the nonbreaching party and that contracts, when entered into freely and voluntarily, will be enforced by the courts.^"Because the Buyers have made no claim that they did not enter into the contract freely and voluntarily, we will not invalidate a remedy for which the Sellers contracted. '"°B ased on this analysis, the court found that the decision to award the equitable remedy of specific performance was within the trial court's discretion." Judge Kirsch dissented with regard to the majority's analysis of the specific performance issue, simply noting that: I believe that specific performance of a real estate contract is proper only where the remedy at law is inadequate. While specific performance may be granted as a matter of course to the purchaser because real estate is unique, in the typical case the seller's remedy at law in the form of an action for money damages will be sufficient to fully compensate the plaintiff. I see nothing in the facts of this case to indicate that the sellers have an inadequate remedy at law to justify the grant of specific performance.'Î n the opinion and dissent. Judge Sullivan and Judge Kirsch articulate the two major schools of thought regarding the availability of equitable remedies. In Judge Sullivan's view, the choice of remedies between those freely contracted by the parties is within the discretion of the trial court. In Judge Kirsch's view, certain environmental contamination does not render title to property "unmarketable," citing a New Hampshire Supreme Court decision which noted that "'[o]ne can hold perfect title to land that is valueless; one can have marketable title to land while the land itself is unmarketable.'" Id. (quoting McManus v. Rosewood Realty Trust, 719 A.2d 600, 601 (N.H. 1998)). 6. Id. at 1034. 7. Id (citing StoU v. Grimm, 681 N.E.2d 749, 756 (Ind. Ct. App. 1997)). 8. Id at 1035.

Property, 2016

Retail real estate lease transactions heavily utilize two kinds of restrictive use covenants — pr... more Retail real estate lease transactions heavily utilize two kinds of restrictive use covenants — prohibited use covenants and exclusive use covenants. The structure and language of these covenants is so well established that they are practically boilerplate. This article analyzes recent appellate court decisions as well as common formulations and uses of restrictive use covenants and concludes that there is a significant disconnect between the expectations of tenants and landlords, and the way that modern courts interpret, enforce, and remedy restrictive use covenants. Common vulnerabilities in restrictive use covenants are discussed, and transactional attorneys are encouraged to dust off form language and methodically address each of the issues raised in the paper in order to craft clear and unambiguous restrictive use covenants that efficiently address client goals.

Burial places are real property, but they are a special kind of real property. Thus, while the la... more Burial places are real property, but they are a special kind of real property. Thus, while the law with respect to land perpetually dedicated to the disposition of human remains is rooted in the general common law of property, there are unique doctrines that apply only to burial places. Moreover, although disputes occur with alarming frequency and the doctrines are rich and fascinating, the law of burial places has long been neglected by practicing attorneys and legal scholars. As a result, this unique niche of the law is not well understood, and it is a difficult area for the uninitiated to navigate. The purpose of this article is therefore to illuminate and explain the doctrinal framework of legal and property interests in burial places so readers are better prepared to confront these issues when they arise.

Property, 2006

This Article takes a topical approach to the notable real property cases decided by the Indiana C... more This Article takes a topical approach to the notable real property cases decided by the Indiana Court of Appeals and the Indiana Supreme Court in this survey period, October 1, 2004, through September 30, 2005, and analyzes noteworthy cases in each of the following areas: land use law, real estate contracts, landlord/tenant law, and developments in the common law of property.

Jotwell: The Journal of Things We Like, 2016

Ethics eJournal, 2015

Changes in the American funeral industry have sparked a new category of land use — a business whe... more Changes in the American funeral industry have sparked a new category of land use — a business where funeral goods and services are sold, but human remains are not embalmed, stored, or displayed. The author has named this new land use a “retail funeral establishment.” Many of these establishments are seeking to locate in retail areas, particularly multi-tenant shopping centers across the country. This new land use raises challenges for real estate attorneys regarding whether retail funeral establishments are permitted in retail developments pursuant to public and private land use controls.

Property, 2007

This Article takes a topical approach to the notable real property cases in the courts of the Sta... more This Article takes a topical approach to the notable real property cases in the courts of the State of Indiana in this survey period, October 1, 2005, through September 30, 2006, and analyzes noteworthy cases in each of the following areas: restrictive covenants, contracts, landlord/tenant law, governmental action and eminent domain, tax sales, mortgages, and developments in the common law.

Estate Planning eJournal, 2015

A human cadaver is no longer a person, but neither is it an object to be easily discarded. As a r... more A human cadaver is no longer a person, but neither is it an object to be easily discarded. As a result of this tenuous legal status, human remains occupy an uneasy position in U.S. law. Perhaps because of what anthropologist Ernest Becker called our “universal fear of death,” the law of human remains occupies a remarkably unexamined niche of U.S. law.The Law of Human Remains is an ambitious effort to collect, organize and state the legal rules and principles regarding the status, treatment and disposition of human remains in the United States. The most recent comprehensive overview of the law was published in 1950 (Percival Jackson's The Law of Cadavers). The Law of Human Remains builds on that work by creating detailed summaries of each individual state’s laws and regulations. This unprecedented resource allows readers to quickly identify the often fascinating differences that exist between states.By defining and describing this neglected area of law, The Law of Human Remains s...

LSN: Real Property Rights (Topic), 2015

As a condition of entering into a lease for space in a shopping center, tenants with significant ... more As a condition of entering into a lease for space in a shopping center, tenants with significant bargaining power often require landlords to promise that no other occupant of the shopping center will sell certain goods or services. This promise, contained in the lease, is known as an “exclusive use covenant” because it establishes the beneficiary’s right to be the exclusive provider of particular goods or services in a defined area. Grocery store tenants, like Winn-Dixie, typically require the landlord to promise that no other tenant will sell more than a de minimus amount of food items intended for off-premises consumption. Over the past decade, so-called “dollar stores” retailers, like Dollar Tree, Dollar General, and Family Dollar, selling discount, convenience products, including food items, have aggressively expanded. Grocery store chains, fearing increasing competition from the dollar stores, have sought to enforce their exclusive use covenants against landlords and the dollar...

SSRN Electronic Journal, 2018

Americans have more choices than ever before with respect to the disposition of their remains aft... more Americans have more choices than ever before with respect to the disposition of their remains after death. For some people, the choice of burial place, or the election to have their remains cremated, is the final opportunity to express and fulfill important values. American common law has long provided decedents with the broad right to direct the disposition of their own remains after death. However, an inconsistent patchwork of state statutes has complicated and frustrated this fundamental common law right. Many states require decedents to comply with strict formalities, or prohibit decedent control outright. This disconnect between common and statutory law creates problems for decedents and estate planning professionals for several reasons. First, funeral and disposition directions are often a neglected aspect of estate planning. Second, the laws that determine the enforceability of such directions are based on where the remains are located, not where the decedent resided. This Article examines these problems and provides a comprehensive appendix listing and summarizing each state’s “personal preference” and “designated agent” laws as an aid to practitioners.

SSRN Electronic Journal, 2016

Since European settlement of the area now known as New York City commenced approximately 375 year... more Since European settlement of the area now known as New York City commenced approximately 375 years ago, the predominant method of corpse disposition has been ground burial or entombment in a submerged vault. The story of New York City is one of continuous growth and displacement of the old with the new. The story of corpse disposition in New York City is no different. In 1892, a guide to New York City noted “the history of New York… shows a constant record of the pushing of the dead out of place by the living.” This short history of corpse disposition in Manhattan, the earliest and most intensively settled portion of the modern metropolis, is intended to establish a historical context for discussions regarding the future of corpse disposition in New York City.

Indiana Law Journal, 2015

Indiana law review, Jan 4, 2003

In this survey period, October 1 , 200 1 , through September 30, 2002, the state appellate and fe... more In this survey period, October 1 , 200 1 , through September 30, 2002, the state appellate and federal courts tackled a number of discrete issues regarding property law. This Article examines those cases which clarified an existing rule or applied the principles of the common or statutory law to a new situation. The first four sections of this Article correspond with four thematic divisions of property law: (1) relationships between private parties; (2) the creation and enforcement of property interests; (3) land use law; and (4) developments in the common law of property. These sections abstract and analyze a handful of cases which either depart from or clarify existing property law in a significant way. The fifth section describes two significant revisions to the Indiana Code made in the 2002 session of the Indiana General Assembly: the recodification of Title 32 and the Landlord/Tenant Act of 2002. The sixth and final section contains brief summaries of a number of other cases handed down during the survey period which may be of interest to practitioners. I. Relationships Between Private Parties One of the most important practical aspects of property law concerns the rules governing relationships between private parties with respect to real property. The principal relationships which arise are: (1) a buyer and seller of property; (2) a landlord and tenant; (3) a holder of a lien on property and the owner of the property; and (4) holders of competing liens on property. Of course, the contracts that the parties enter into govern the bulk of their relationship, but the rules that govern how those contracts are to be construed and enforced become as much a part of the contract as the words with which they are written. A. Buyers and Sellers Buyers and sellers of property typically are most concerned about the practical terms of their transaction-what is to be included with the property, what the price will be, when closing will occur-and that their contracts are carefully prepared with those issues in mind. Unfortunately, the buyer and seller do not typically spend a lot of time thrashing out what will happen if one of them fails to live up to his or her part of the bargain. These issues are usually left to the form of contract used and virtually dismissed as "boilerplate." The Indiana Court of Appeals recently had occasion to address the damages *

SSRN Electronic Journal, 2013

The purpose of the Dodd-Frank Act was to protect consumers and the stability of the financial sys... more The purpose of the Dodd-Frank Act was to protect consumers and the stability of the financial system. Community banks provide vital services to millions of Americans, many of whom would be underserved if the community bank model were broken or if community banks were to abandon lines of service. If community banks are forced to merge, consolidate, or go out of business as a result of Dodd-Frank, one result will be an even greater concentration of assets on the books of the "too-big-to-fail" banks. Another result will be that small businesses and individuals who do not fit neatly into standardized financial modeling, or who live outside of metropolitan areas served by larger banks, will find it more difficult to obtain credit. Neither of these outcomes will protect consumers, the financial system, or the recovery of the American economy.  Community banks play a vital role in this nation's economy, particularly with respect to small businesses and rural communities, and their continued health and vitality is central to the nation's economic recovery. Community banks provide 48.1 percent of smallbusiness loans issued by US banks, 15.7 percent of residential mortgage lending, 43.8 percent of farmland lending, 42.8 percent of farm lending, and 34.7 percent of commercial real estate loans, and they held 20 percent of all retail deposits at US banks as of 2010.  Community banks are a vital source of credit and banking services to rural communities. Community banks are four times more likely than large banks to have an office in rural counties. More than 1,200 US counties-with a combined population of 16 million Americans-would have severely limited banking access without community banks.  Community banks were not responsible for the causes of the financial crisis determined by the authors of Dodd-Frank. Community banks did not engage in widespread subprime lending. They did not engage in securitization of subprime residential mortgages. Nor did they use derivatives to engage in risky speculation to maximize return. Community banks simply did not contribute to the financial crisis.  Although policymakers enacted Dodd-Frank to avoid too-big-to-fail situations, in reality, its effect is the opposite. The act will force greater asset consolidation in fewer megabanks by increasing the competitive advantage large banks have over smaller banks.

SSRN Electronic Journal, 2011

/billion-dollar-foreclosure-mess-took-root-at-75khouse/ (on file with the Columbia Law Review) (d... more /billion-dollar-foreclosure-mess-took-root-at-75khouse/ (on file with the Columbia Law Review) (describing lender who often cannot truthfully certify he possesses "true and accurate copy of the note or mortgage").

NEBRASKA LAW REVIEW

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... more I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 636 II. The Foundation of the Uniqueness Doctrine . . . . . . . . . . . 640 A. The Struggle Between Law and Equity . . . . . . . . . . . . 641 B. The Anglo-American Particular Esteem for Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...

papers.ssrn.com

Each year in this issue, an attempt is made to summarize the noteworthy developments affecting re... more Each year in this issue, an attempt is made to summarize the noteworthy developments affecting real property law in the state of Indiana. It touches on subjects including real estate transactions, landlord/tenant law, liens and mortgages, land use, statutory law, and the ...