Real Property, Trust and Estate Law Journal

The RPTE Law Journal is a scholarly law review journal published three times annually by the Real Property, Trust and Estate Law Section with assistance from the University of South Carolina School of Law.

Winter 2017, Vol 51, No 3 (Full PDF)
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Credit-Agreement Statutes Revisited: Are Equitable Defenses Permitted?
John C. Murray
Within the last three decades, there has been a surge in lender-liability claims against mortgage lenders. In response to this surge, many states have enacted credit-agreement statutes to protect these lenders from claims of oral modification of loan agreements. This Article covers the history and the rise of such state credit-agreement statutes and how courts have interpreted them. This Article focuses on the courts' inconsistent interpretations of whether equitable claims and defenses such as equitable estoppel, waiver, partial performance, and bad faith are available to borrowers. Additionally, this Article analyzes the Illinois Credit Agreements Act and how Illinois courts have interpreted it. Lastly, this Article covers the proposed ABA "Model Lender Liability Limitation Statute" and discusses its stance on equitable defenses.

Land Use Law and Sidewalk Requirements under the Americans with Disabilities Act
Robin Paul Malloy, Sarah Spencer & Shannon Crane
A significant percentage of American families have a family member with a mobility impairment. The numbers will increase as our population continues to age. Therefore, it is important to focus on accessibility so that people can safely and easily navigate their local communities. This Article deals with the legal obligation to make communities accessible under the Americans with Disabilities Act (ADA). Specifically, this Article addresses the intricate regulations applicable to sidewalks. Local communities must construct, repair, and maintain sidewalks in compliance with the ADA. This obligation includes removing obstacles to accessibility such as snow, even in snow-belt communities that would prefer to avoid the cost of snow removal.

The Intersection of Trusts and Anti-Trust: Why You, an Estate Planner, Should Care about Hart-Scott-Rodino
Jay D. Waxenberg & Jason A. Lederman
This Article addresses how the Hart-Scott-Rodino Antitrust Improvements Act (HSR) affects estate planning transactions and how estate planners might resolve issues arising out of HSR. This Article also discusses the principles and the law under HSR. To help estate planners better understand the provisions of HSR, this Article briefly covers the key terminology, the coverage, and the exemptions of HSR. Additionally, this Article analyzes the application of HSR to Grantor Retained Annuity Trusts (GRATs) and other irrevocable trusts. Lastly, this Article discusses public policy and provides suggested changes to HSR.

Using Equity To Aid The Exercise Of A Power Of Appointment that Fails To Specifically Refer To The Power
Kenneth W. Kingma
An estate plan today often grants a power of appointment that contains a specific reference requirement, which requires the donee of the power to specifically refer to the power when exercising it. Sometimes a dispute arises over whether an attempted exercise of a power of appointment satisfied a specific reference requirement. Such disputes often involve a blanket exercise clause in the donee's estate plan that attempts to exercise all of the donee's powers of appointment. This Article examines the common law equitable rule that aids an attempted exercise of a power of appointment by not requiring rigid compliance with a specific reference requirement. This Article also examines how three Restatements of Property and the Uniform Powers of Appointment Act have summarized and applied the equitable rule.

Basics of Firearm Transfers for Estate and Probate Lawyers
Benjamin Dean
Estate planners and probate lawyers are currently unaware of the issues concerning firearms in estates and the potential criminal penalties associated with failure to comply with the appropriate transfer requirements. With firearm ownership in the United States at an all-time high, it is crucial that attorneys become familiar with these laws to enable their clients to pass on their assets without fear of criminal prosecution and to protect the attorneys themselves from civil or criminal liability. This Article provides detailed information concerning the law of firearms transfers, how it interacts with both estate planning and probate work, as well as practical issues, and pitfalls that attorneys should be prepared to advise their clients.

 

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