Articles in this issue

Real Estate

ABA RPTE Conservation Easement Task Force Report: Recommendations Regarding Conservation Easements and Federal Tax Law (53:02)

In October 2015, the American Bar Association’s Real Property, Trust and Estate Law (RPTE) section convened a Conservation Easement Task Force. The objective of the Task Force was to provide recommendations regarding federal tax law as it relates to conservation easements. This Report is the culmination of the Task Force’s work. Part I of the Report is an Executive Summary of the Task Force’s recommendations. Part II provides the background necessary to understand the Task Force’s recommendations. Part III briefly sets forth the Task Force’s comments on the Tax Cuts and Jobs Act of 2017 as it relates to charitable contributions in general and conservation easement donations in particular. In Part IV, the Task Force recommends that the Treasury publish safe harbor provisions that would be common to most conservation easements. Part V sets forth the Task Force’s recommendations regarding amendments and discretionary consents, the inconsistent use regulations, and furthering transparency in conservation easement administration. Part VI discusses issues surrounding valuation of conservation easements. Part VII contains a brief comment on syndicated conservation easement transactions. Part VIII is the Task Force response to certain proposals the Treasury Department made (most recently in 2016) to change conservation easement law. Appendix A sets forth the “perpetuity” requirements of § 170(h) and the Treasury Regulations. Appendix B offers specific language to facilitate the preparation of key safe harbor provisions.

Real Estate

Beware-BNB?: Adapting The Regulatory Approach Of Community Associations To Residential Sharing & Zoning Trends (53:02)

This Article discusses current trends in the regulation of residential sharing activity by zoning authorities and community associations, and it highlights recent municipal approaches that address short-term rentals. This Article argues that an opportunity exists for community associations to confront residential sharing activity by using current zoning trends as a guide to formulate association-specific regulatory strategies, and it cautions that reliance on existing covenants may not adequately regulate short-term rental activity.

Real Property Trust and Estate

The Enigma of End-of-Life Decisions in Advance Directives (53:02)

This Article discusses advance health-care directives and the subjective, personal choices one must make for a future unknown situation. The Article first examines legal issues created by the various available types, and then moves into religious and philosophical views affecting a person’s end-of-life choices. Issues involving a person’s health, age, and financial and emotional situation are also discussed. Because a directive does not normally go into effect until a person can no longer make a medical decision, the Article also discusses quality-of-life issues arising from a minimally conscious state, a vegetative state, a locked-in state, and coma. There is then a discussion of the default position courts and medical providers take when no advance directive has been filled out, and the risks of leaving a person’s end-of-life decisions to an agent. This Article concludes that an advance directive tends for most to be an enigma because so few have ever thought out the many complex issues raised by this type of document.

Real Estate

Portable Reciprocity: A Way Towards A Blockchain Agnostic World To Facilitate Cross-Border Real Estate Transactions (53:02)

The application of blockchain technology to securely trade real estate assets and raise funds across borders is inevitable; but maximizing its value relies on widespread adoption, which in turn relies on platforms becoming blockchain agnostic. This Article proposes implementing portable reciprocity as the first step towards enabling a regulated, cross-border REtech world. First, this Article reviews the development and practical applications of cryptocurrency and blockchain technology and how that technology enabled smart contracts to emerge. Second, this Article analyzes the impact of blockchain and smart contracts to general real estate transactions and to cross-border real estate transactions, creating the need for regulations to maximize the technology’s full value and application. Third, this Article examines portable reciprocity as a solution to the needs raised. Finally, this Article concludes with suggestions for next steps and a regulatory snapshot of how governments are currently treating cryptocurrency and blockchain technology.