Real Estate & Property Law

More About The "Undivided Fee Rule" Cert Petition

By Robert Thomas (inversecondemnation.com)

A couple of links following up on our recent post about City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, No. 09-1204 (cert. petition filed Apr. 2, 2010).

That's the case in which the Supreme Court is being asked to review a decision by the Wisconsin Supreme Court (768 N.W.2d 749 (Wis. 2009)) applying the "undivided fee" rule to conclude that a valuable long-term $1 per year lease was worthless as a matter of law. The VFW was prohibited by the trial court from introducing any evidence of value since under the undivided fee rule, the jury could only determine the value of the fictional fee simple interest. The sharply divided Wisconsin Supreme Court affirmed. [Disclosure: we filed an amicus brief, noted below.]

The cert petition is here. The amicus brief we filed for National Association of Home Builders and the Wisconsin Builders Association is here. The Institute for Justice's amicus brief is posted here.

• Lawprof Ilya Somin details the amicus brief he filed in the case, and the comments include a spirited debate on the workings and wisdom of the undivided fee rule (via the Volokh Conspiracy).

• The Eminent Domain Law Blog provides more information on the case here.

Full post as published by inversecondemnation on May 08, 2010 (boomark / email).