Property Law Developments—Joseph William Singer

Court holds that beach rights can be lost through erosion

Posted on May 17th, 2013 by Joseph William Singer.
Categories: Easements, Title issues, Trespass, Water rights.

The Supreme Judicial Court of the Commonwealth of Massachusetts has reaffirmed the old rule that property rights can be expanded by slow accretion or diminished through slow erosion when property is located on a stream or the ocean. In White v. Hartigan, 982 N.E.2d 1115 (Mass. 2013), beachfront owners claimed a right to use the beach behind their neighbors house because their deed had given them rights to the beach in 1841. The court disagreed, noting that changing boundaries had placed the plaintiffs’ beach under water and that they had no right to “moveable” boundaries ensuring access to the beach behind their neighbor’s house.

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More states recognize same-sex marriage

Posted on May 17th, 2013 by Joseph William Singer.
Categories: Antidiscrimination law, Marital property, Sexual orientation, Wills and inheritance.

Within the last month or so, new states have recognized same-sex marriage. They are Delaware, Rhode Island, and Minnesota. All did so legislatively. Del. Code, tit. 13, §§101 to 122, as amended by 2013 Del. HB 75 (May 8, 2013); R.I. Gen. Laws §§15-1-1 to 15-1-5, as amended by 2013 R.I. Pub. Laws 4 (2013 R.I. HB 5015); Minn. Stat. §§517.01 to 517.09, as amended by 2013 Minn. Sess. Law Serv., ch. 74 (H.F. 1054) (May 14, 2013). Internationally, recent additions to the list include France, New Zealand, and Uruguay.

As of May 17, 2013, there are now thirteen jurisdictions (12 states and the District of Columbia) that recognize same -sex marriage in the U.S. They include  Connecticut, Delaware, the District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington.

Three American Indian nations also recognize same-sex marriage, including the Coquille Indian Tribe, the Little Traverse Bay Bands of Odawa Indians, and the Suquamish Tribe. ee, e.g., Coquille Indian Tribal Code §§740.010, 740.100; Little Traverse Bay Bands of Odawa Indians Tribal Code of Law § 13.103; William Yardley, A Washington State Indian Tribe Approves Same-Sex Marriage, N.Y. Times, Aug. 11, 2011, at A-12 (Suquamish Tribe).

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No nuisance claim without physical invasion or harm

Posted on March 31st, 2013 by Joseph William Singer.
Categories: Environmental law, Nuisance.

The Maryland Court of Appeals ruled in Exxon Mobil Corp. v. Albright, — A.3d —, 2013 WL 673738 (Md. 2013) that property owners near a gas station where 26,000 gallons of gasoline spilled from an underground tank could not sue for nuisance when their wells have not yet been contaminated. The neighbors were not allowed to sue for emotional damages, for reduction of the fair market value of their property or for future costs of medical monitoring. Most courts reach the same result although a few courts have allowed damages in such cases for nearby properties when the reduction in fair market value is substantial.

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First Circuit allows MERS to assign mortgages to the mortgage holder

Posted on March 3rd, 2013 by Joseph William Singer.
Categories: Consumer protection, Mortgages, Real estate transactions, Title issues.

State courts have disagreed about whether MERS (Mortgage Electronic Registration Systems) has standing to foreclose on property or to assign whatever interest it has in the mortgage to the bank that holds the mortgage currently so that that bank can bring foreclosure proceedings. Some courts have held that MERS has no property interest in the mortgage but is a mere agent for the mortgage owner so it cannot bring foreclosure proceedings itself or assign the mortgage to anyone else.   Bain v. Metropolitan Mortgage Group, Inc., 285 P.3d 34, 36–37 (Wash. 2012) (because MERS does not hold the note, it can neither initiate nonjudicial foreclosure proceedings not assign an interest in the note to a trustee who can do so). But others have held that MERS may initiate foreclosure proceedings in its own name and/or assign the mortgage to someone else.  Gomes v. Countrywide Home Loans Inc., 121 Cal. Rptr. 3d 819, 826–827 (2011) (MERS may initiate nonjudicial foreclosure under deed of trust); Mortgage Electronic Registration Systems, Inc. v. Revoredo, 955 So. 2d 33, 34 (Fla. Dist. Ct. App. 2007) (MERS may foreclose as agent of the note holder); Residential Funding Co., LLC v. Saurman, 805 N.W.2d 183 (Mich. 2011) (MERS had sufficient “interest in the debt” to initiate nonjudicial foreclosure proceedings); Jackson v. Mortgage Electronic Registration Systems, Inc., 770 N.W.2d 487, 494–495, 501 (Minn. 2009)(applying Minn. Stat. §507.413 allowing MERS to initiate foreclosure proceedings).

In Culhane v. Aurora Loan Servs. of Neb., — F.3d —, 2013 WL 563374 (1st Cir. 2013), the First Circuit, applying Massachusetts law, has now held that MERS may assign mortgages because it does own a legal interest in the mortgage. In an opinion by Judge Selya, the court held that MERS has the “legal interest” in the mortgage because it is named as the mortgagee but that the bank that actually issued the note and has the right to enforce the mortgage to secure the loan has the “beneficial interest” in the mortgage. The court reasoned  that the party that owns the note or is entitled to enforce it (not necessarily the same party) has the equitable right to the protection of the mortgage giving it a right to foreclose and that MERS is merely holding title to the mortgage for the benefit of that party. At the same time, MERS has a sufficient interest to hold the mortgage title for the benefit of the owner of the “beneficial interest” in the mortgage. It is not clear if that would mean that MERS could bring foreclosure proceedings in its own name or that means that the right to foreclose cannot be separated from rights in the note.

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HUD issues final regulations defining disparate impact claims under the Fair Housing Act

Posted on February 9th, 2013 by Joseph William Singer.
Categories: Antidiscrimination law, Fair Housing Act, Real estate transactions.

The Department of Housing & Urban Development (HUD) has issued final regulations defining the standards to make a claim that a neutral policy has a disparate impact on a protected group in a manner that constitutes unlawful discrimination under the federal Fair Housing Act, 42 U.S.C. §3601 et seq. The regulations are at 24 C.F.R. 100.500 and can be found here. The rule affirms that disparate impact claims are available under the Fair Housing Act and identifies an approach to proving them to respond to the variation that exists among Circuits on what the legal test is for disparate impact in this area. Here is the test:

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Homeowners’ Association dues lost because the property was taken by eminent domain are held not to be compensable under the takings clause

Posted on February 7th, 2013 by Joseph William Singer.
Categories: Estates & future interests, Servitudes, Takings.

When a government took 14 units from a homeowners association by eminent domain, the remaining owners lost the dues and assessments that those owners would have contributed to the homeowners association. However, the Fifth Circuit has ruled that those lost assessments represent mere “contractual rights” that are not compensable under the takings clause as lost property rights even though they ran with the land. United States v. 0.073 Acres of Land, — F.3d —, 2013 WL 322242 (5th Cir. 2013). The court looked to Louisiana law to determine whether the assessments should be considered to be “property” rights and found that they were. However, it interpreted the case of United States v. General Motors Corp., 323 U.S. 373 (1945) to mean that loss of future profits from land is not compensable. The court acknowledged that it was adopting a minority view and that most courts have held that covenants are property within the meaning of the takings clause.

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Maine, Maryland, and Washington pass same-sex marriage referenda

Posted on November 7th, 2012 by Joseph William Singer.
Categories: Marital property, Religious freedom, Sexual orientation.

Maine, Maryland and WAshington states all passed referenda legalizing same-sex marriage on Nov. 6, 2012.

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Foreclosure denied when the lender obtained assignment of the note and mortgage after filing the foreclosure action

Posted on November 3rd, 2012 by Joseph William Singer.
Categories: Consumer protection, Mortgages, Real estate transactions, Title issues.

In Federal Home Loan Mortgage Corp. v. Schwartzwald, 2012 Ohio 5017, 2012 Ohio LEXIS 2628 (Ohio 2012), the Supreme Court of Ohio joined other courts that have refused to allow banks to foreclose if they cannot prove by written evidence at the time of foreclosure that they have a legal right to foreclose. In this case, Federal Home Loan commenced a foreclosure action before it obtained an assignment of the promissory note and mortgage securing the loan, although it attempted to “cure” that defect by obtaining the assignment later. The Supreme Court of Ohio reversed lower court rulings that had decided that the cure would allow the foreclosure to proceed; instead, it held that state law required lawful standing at the time the foreclosure action was brought. It cited cases from other states that denied standing to MERS (Mortgage Electronic Registration Systems) because it did not possess any interest in the note or the mortgage. The court dismissed the foreclosure claim without prejudice, so the lender can refile now that it has obtained a written assignment of the mortgage and lawful possession of the note. The court’s ruling suggests, however, that a bank that cannot provide proof that it “owns” the rights in mortgage and/or the note may not be able to foreclose, leaving to another day the question of whether the lender can use alternate evidence to prove its property rights and how a borrower/homeowner can clear title to the property that appears to still be encumbered by a mortgage.

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Protecting surrogate mother’s right to change her mind, NJ high court denies infertile wife’s claim to be listed as the parent at birth of a child born to another woman artificially inseminated with the husband’s sperm

Posted on October 27th, 2012 by Joseph William Singer.
Categories: Marital property.

An evenly-divided Supreme Court of New Jersey affirmed a lower court’s opinion that protected the potential parental rights of a surrogate mother who had been implanted with the sperm of a man and the egg of an anonymous donor and denying the right of the man’s wife to have her name placed on the birth certificate with her husband’s at the time of birth of the child even though it was contingent on the surrogate mother’s right to change her mind up to 72 hours after the birth of the child. In re T.J.S., 2012 WL 5233616 (N.J. 2012), aff’g In re T.J.S., 16 A.3d 386 (N.J. Super. Ct. App. Div. 2011). The state statute affirms the potential parental rights of the sperm donor and the biological mother who gives birth to the child, as well as the egg donor. The statute protects the rights of the biological mother to retain parental rights (even if the egg is donated by someone else) unless she relinquishes those rights in an approved manner; the statute requires adoption by the mother who is not biologically related to the child while recognizing the sperm donor’s rights as father because of his biological connection to the child.

Although the state statute allows the husband’s name to be placed on the birth certificate of a child born by his wife even if she is impregnated with the sperm of a third-party donor, the court did not find a constitutional equal protection violation when it denied that right to the infertile wife in this case. In effect, the court thought there was a rational reason to make it easier for sperm donors to relinquish parental rights than for surrogate mothers to do so; conversely, it saw reason to place parental obligations on husbands regardless of a biological connection to a child born by their wives while denying parental rights and obligations for wives who have children through a surrogate mother.

The three dissenters found such a distinction to violate the equal protection clause of the constitution by granting the husband the right to immediate parental status despite lacking any biological connection to the child while denying that right to the wife over a child biologically connected to her husband, especially when the birth certificate explicitly made the wife’s parental status contingent on the waiting period that allowed the biological (surrogate) mother to change her mind.

The case implicates property issues because the parental/child relationship not only confers rights on the child but obligations on the parent so who the parent is defines who has obligations to support the child, thus encumbering the parent’s property to comply with those obligations.

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Supreme Court takes certiorari in two takings cases

Posted on October 7th, 2012 by Joseph William Singer.
Categories: Takings.

Arkansas Game & Fish Comm’n v. United States, 637 F.3d 1366 (Fed. Cir. 2011), held that deviations by the Army Corps of Engineers from a flood management plan that resulted in temporary flooding of riverfront property did not constitute a taking of property without just compensation but might constitute a tort for which compensation could be sought. The flood management plan exists because the riverfront property is subject to flooding in the first place and it is intended to alleviate that. The doctrinal issue likely to be the focus of the Supreme Court’s ruling is whether temporary flooding constitutes a taking of property.

Koontz v. St. Johns River Water Management District, 77 So. 3d 1220 (Fla. 2011), held that the state of Florida did not take the landowner’s property when it proposed to allow the owner to dredge the property on condition that several exactions were met. The owner refused the exactions and the permit was ultimately denied. The core question is whether the Nollan/Dolan rule requiring exactions to be substantially related to the reasons for the permit denial apply to exactions that do not involve a dedication of the owner’s property to the public. Nollan and Dolan both involved governmental proposals to relax regulatory limits on land development in exchange for the owner granting a public easement of access to portions of the owner’s property. The Supreme Court in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 547-548 (2005), explained that this constituted a particular application of the unconstitutional conditions doctrine. The Supreme Court may finally resolve the question of whether Nollan/Dolan doctrine applies, for example, to municipal rules that relax zoning limits if developers contribute money to a fund to promote low-income housing. Or the court may find the case moot and the doctrine inapplicable given the ultimate denial of the permit in this case.

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Loft landlord denied right to evict until housing is brought up to code

Posted on October 7th, 2012 by Joseph William Singer.
Categories: Consumer protection, Leaseholds.

The New York Court of Appeals has held that a loft owner who has not complied with regulations designed to ensure that lofts are habitable cannot collect rent or evict the residential tenant from her home. Chazon v. Maugenest, 971 N.E.2d 852 (N.Y. 2012). In one sense this is a straight-forward application of modern landlord/tenant law. The case is unusual because the tenant has been living in the loft without paying rent for nine years and because the tenant’s initial occupation was illegal since the property had been formerly used for commercial purposes and rented to a residential tenant in violation of New York City ordinances. The Court felt it had no discretion given the clear language of the loft law. That law had been intended to induce loft landlords to upgrade the property to make it habitable but hundreds of such landlords have still not complied with it despite the fact that it has been in effect for 30 years. The court held that the clear language of the loft law would apply even if the landlord’s violations were procedural rather than substantive.

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Commercial landlord owes no duty of care to visitors inside leased premises

Posted on October 1st, 2012 by Joseph William Singer.
Categories: Leaseholds.

The Massachusetts Appeals Court reaffirms that, unlike residential landlords, commercial landlords have no duty to repair the leased premises in the absence of a contractual obligation to do so. Marino v. Mystic Realty Trust, 2012 WL 4033738, 82 Mass. App. Ct. 1113 (Sept. 14, 2012). The opinion applied established Massachusetts law. Humphrey v. Byron, 850 N.E. 2d 1044 (Mass. 2006). A consequence of this no duty rule is that commercial landlords owe no duty to exercise reasonable care to assure that visitors are not subject to unreasonable risk of harm while on the leased premises. Commercial landlords do have a duty to maintain common areas and thus must protect visitors from unreasonable risk of harm there.

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Vermont civil union counts as a marriage in Massachusetts

Posted on August 29th, 2012 by Joseph William Singer.
Categories: Antidiscrimination law, Marital property, Sexual orientation.

The Supreme Judicial Court of the Commonwealth of Massachusetts held that a man who entered into a civil union with another man in Vermont could not marry a different man in Massachusetts before dissolving the civil union. Elia-Warnken v. Elia, 463 Mass. 29, 2012 Mass. LEXIS 678 (Mass. 2012). The court dismissed divorce proceedings in Massachusetts on the ground that the marriage was void from the beginning since one of the men was still “married” (under a “civil union”) to another man in Vermont. The result denied the “spouse” in Massachusetts any remedies such as equitable distribution of property on the ground that otherwise one person would be married to two people at once with conflicting support obligations. The court cited an article of mine, Joseph William Singer, Same–Sex Marriage, Full Faith and Credit, and the Evasion of Obligation, 1 Stan. J. C.R. & C.L. 1, 29, 36, 50 (2005). Presumably, an action to dissolve the Vermont civil union could still be made but that would not generate  any property remedy against the Massachusetts spouse because that spousal relation never legally existed under the Massachusetts bigamy statute. The court did not address whether there might be any equitable or common law remedies based on a claim of constructive trust or unjust enrichmnet or fraud for failure to reveal the prior relationship.

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Tribal sovereign immunity prevents state foreclosure for failure to pay state property taxes

Posted on August 22nd, 2012 by Joseph William Singer.
Categories: Tribal property.

Applying the standards set down by the Second Circuit in Oneida Indian Nation of N.Y. v. Madison County, 605 F.3d 149 (2d Cir. 2010, a federal district in New York affirmed that a county could not foreclose on tribal land for nonpayment of state property taxes on the ground that the tribe has sovereign immunity that it has not waived and that has not been abrogated by federal law. Cayuga Indian Nation of N.Y. v. Seneca County, 2012 U.S. Dist. LEXIS 117245 (W.D.N.Y. 2012).

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Washington Supreme Court holds MERS cannot initiate private deed of trust foreclosures

Posted on August 20th, 2012 by Joseph William Singer.
Categories: Consumer protection, Mortgages, Real estate transactions.

In Washington state, lenders typically use the deed of trust form for mortgages where the lender is the “beneficiary” of the trust and the “trustee” has the power to act to protect the beneficiary’s interest by foreclosing on the property if the borrower defaults on the note (the underlying loan). MERS is typically listed as the beneficiary of the deed of trust rather than the lender that actually issued the loan  (and signed the note) in order to avoid having to record future assignments of the mortgage; the deed of trust is recorded listing MERS as the beneficiary rather than the lender that issued the note to the borrower/homeowner. Interpreting the meaning of the word “beneficiary” in state foreclosure statutes, the Washington Supreme Court agreed with other courts that have held that MERS is not actually the beneficiary of the note and thus has no power to initiate a nonjudicial foreclosure of the property upon default of the payments. Bain v. Metropolitan Mortgage Group, Inc., 2012 WL 3517326 (Wash. 2012).

The court refused to say what the consequences of this ruling would be, although it did suggest that the proper party to bring the foreclosure is the current holder of the note who actually possesses the note or can demonstrate the chain of transactions that makes it the beneficiary of the note. The court also suggested that MERS might act as an agent of the actual beneficiary but only if it could identify the principal and prove that it had been granted agency power to act on behalf of that principal.

The court also held that the facts might present a violation of the state consumer protection act because MERS misrepresented itself as the beneficiary to the borrower, thus engaging in a deceptive business practice. Whether the statute was violated depended on whether the borrower could show that she was injured by the deceptive statement. This is a potentially explosive ruling because MERS’s entire business model depends on listing it, rather than the lender, as the “mortgagee” or “beneficiary” of the deed of trust. On the other hand, the court finds no consumer protection violation unless the borrower can show injury and MERS could avoid causing injury by keeping track of who holds the note and revealing that information to the borrower. This would represent a significant change in MERS’s original business model since it typically only would reveal to borrowers the identity of the loan servicer, not the current holder of the note and not the chain of assignments from the original lender.

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Implied beach easement found from recorded plans and sales statements

Posted on August 8th, 2012 by Joseph William Singer.
Categories: Easements, Real estate transactions, Servitudes.

A Massachusetts court has held that owners of lots near the ocean had an implied easement of access to the beach because recorded plans drafted in 1892 showed an unenumerated lot with access to the ocean and the developer had advertised the lots as “Shore Lots” with a “Cool breeze all the time, good bathing, boating and fishing, nice beach, no undertow, shade trees on several of the lots.” Leahy v. Graveline, 82 Mass.App.Ct. 144, — N.E.2d —, 2012 WL 2819395 (Mass. Land Ct. 2012). The case represents an application of the recent decision in Reagan v. Brissey, 844 N.E.2d 672 (Mass. 2006) that similarly found implied rights to use open land depicted on a subdivision map.

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Court affirms that nonuse does not extinguish an old easement

Posted on July 2nd, 2012 by Joseph William Singer.
Categories: Adverse possession, Easements, Real estate transactions, Servitudes.

The Supreme Judicial Court of the Commonwealth of Massachusetts has reaffirmed that even longstanding non-use of an easement will not extinguish it or cause it to lapse because of prescription. Cater v. Bednarek, — N.E.2d —, 462 Mass. 523 (Mass. 2012). To extinguish an easement by prescription requires acts inconsistent with the easement that put the easement owner on notice that its uses are being disrupted. Moreover, if the servient estate owner makes only part of an easement inaccessible, it is extinguished only as to that part but not the rest. In addition, the court held that, where a deed does not specify the dimensions of the easement, it must be interpreted to establish dimensions that are reasonably necessary for the enjoyment of the dominant estate; the easement is not limited to the purposes for which the dominant estate was used at the time the easement was created. Moreover, if the easement is for access to a public road, it must be interpreted to be wide enough to comply with applicable local regulations on minimum width of roads. Compare the result in this case to the ruling in Cox v. Glenbrook Co., 371 P.2d 647 (Nev. 1962), which interpreted an easement to be limited to one lane when that was the physical layout of the road at the time the easement was created even though such an easement was insufficient as an access road to the dominant estate which consisted of 80 acres.

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Federal Circuit denies takings claim when a personal computer is damaged after being taken by customs officials at an airport

Posted on June 27th, 2012 by Joseph William Singer.
Categories: Takings.

The Federal Circuit ruled in Kam-Almaz v. U.S. 2012 U.S. App. LEXIS 12581 (Fed. Cir. 2012), that there was no unconstitutional taking of property when an individual’s computer was seized and examined at an airport immigration and customs station and returned with the hard drive damaged, resulting in the loss of irretrievable business records.The court held that property seized “pursuant to the police power” is not taken “for public use” within the meaning of the takings clause. Government can seize property for law enforcement purposes without implicating the takings clause, even if the property is thereby destroyed.

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Homeowners’ Association sign regulations violate free speech rights under state constitution

Posted on June 26th, 2012 by Joseph William Singer.
Categories: Consumer protection, Real estate transactions, Servitudes.

The Supreme Court of New Jersey held in Mazdabrook Commons Homeowners’ Ass’n v. Khan, — A.3d —, 2012 WL 2120868 (N.J. 2012), that the free speech clause of the state constitution guarantees the right to post political signs on one’s property and that any covenants or rules of a homeowners association to the contrary are unenforceable. The owner in this case posted a sign inside the window of his townhouse and a second sign inside his door. Those signs supported his own candidacy for town council. The Association’s rules banned all signs other than “for sale signs.” The court distinguished its earlier ruling in Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n, 929 A.2d 1060 (N.J. 2007), which upheld minor restrictions on sign placement by property owners who were members of the association and did not involve an election to a state or local public office as was the the case in Mazdabrook. Conversely, because the sign was on Khan’s own property, and not common property managed by the association, his interests were stronger. The ruling was premised on prior cases interpreting New Jersey’s free speech clause to apply to private actors on private property in at least some instances, a ruling at odds with the First Amendment which only applies to the federal government or “state actors” through the Fourteenth Amendment.

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Mass high court prospectively requires banks to physically possess the note as well as the mortgage in order to foreclose

Posted on June 23rd, 2012 by Joseph William Singer.
Categories: Consumer protection, Due process, Mortgages, Real estate transactions, Title issues.

In Eaton v. Fed. Nat’l Mortgage Ass’n (Fannie Mae), 2012 Mass. LEXIS 488 (Mass. June 22, 2012), the Supreme Judicial Court of Massachusetts held that a foreclosing party must be in physical possession of both the note and the mortgage (or be acting on behalf of someone who does) when bringing a foreclosure proceeding. However, the ruling applies only prospectively to foreclosures that occur in the future, with the exception that the plaintiff in Eaton that convinced the Court to clarify this rule can take the benefit of it. The refusal to apply the rule retroactively was based on the belief that the law may have been unclear beforehand and that it was the case that many people acted without regard for this principle in the past.

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Websites are public accommodations so Netflix must provide close captioning on web-streamed movies

Posted on June 23rd, 2012 by Joseph William Singer.
Categories: Antidiscrimination law, Consumer protection.

A federal judge in Massachusetts ruled that websites are “places of public accommodation” regulated by the Americans with Disabilities Act (42 U.S.C. §12182(a)), and thus the online movie service Netflix was required to provide closed captioning for all it “Watch Instantly” content. Nat’l Ass’n of the Deaf v. Netflix, Inc., 2012 U.S. Dist. LEXIS 84518 (D. Mass. June 19, 2012). The court’s judgment rested on the First Circuit’s conclusion that “places of public accommodation” under the ADA were not limited to “actual physical structures.” Carparts Distrib. Ctr. v. Auto. Wholesaler’s Ass’n, 37 F.3d 12, 19 (1st Cir. 1994).

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Rhode Island passes Homeless Bill of Rights

Posted on June 17th, 2012 by Joseph William Singer.
Categories: Antidiscrimination law, Fair Housing Act, Personal property, Trespass.

The Rhode Island legislature passed a statute likely to be signed by the Governor called the “Homeless Bill of Rights.” The act amends Rhode Island’s fair housing law by adding “housing status” to the list of prohibited kinds of discrimination and defines housing status to mean “the status of having or not having a fixed or regular residence, including the status of living on the streets or in a homeless shelter or similar temporary residence.” It guarantees access to public spaces (including sidewalks and public buildings) on the same terms as others and grants a certain amount of protection for the personal property of the homeless. The law also ensures that public services are available to homeless persons. The bill is S 2052 Substitute B (2012) and it will amend R.I. Gen. Laws ch. 34 by adding §§34-37.1-1 to 34-37.1-5 and amending §§34-37-1 and 34-37-3.

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Abutters have standing to challenge neighbor’s compliance with zoning law

Posted on June 8th, 2012 by Joseph William Singer.
Categories: Zoning.

State zoning enabling statutes generally define who has the power to challenge decisions by zoning boards about allowable land uses. Many allow abutters who are specially affected by land uses to challenge the legality of building permits or zoning decisions on the ground that if they are not granted this right, there will be no deterrence to zoning boards who ignore the limits of local zoning regulations. The Massachusetts Land Court affirmed the right of abutters who can show they were affected by neighboring land use to challenge zoning permit decisions as “persons aggrieved” under state statutes. Teti v. Town of Sherborn, 20 LCR 154 (Mass. Land Ct. Feb. 29, 2012).

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Easements implied by prior use or by necessity

Posted on June 8th, 2012 by Joseph William Singer.
Categories: Easements, Real estate transactions.

The Massachusetts Land Court has reaffirmed that easements can be implied from prior use if they were used before severance of the two parcels and are “reasonably necessary” for use of the dominant estate while easements by necessity require the dominant estate to be inaccessible but for the easement. Black v. Klaetke, 20 LCR 120, 2012 Mass. LCR LEXIS 56 (Mass. Land Ct. 2012).

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Adverse possession based on occupation not intent to dispossess

Posted on June 8th, 2012 by Joseph William Singer.
Categories: Adverse possession.

The Massachusetts Land Court has reaffirmed the longstanding rule that occupation of property is sufficient to  make it “adverse” or nonpermissive. Kissinger v. Frankelton, MISC 10-420652 (Mass. Land Ct. Mar. 8, 2012). Adverse possessors need not know they are occupying land of another or intend to wrest it from the control of others. Such a requirement would reward land pirates and deny protection to longstanding good faith possessors. While this rule is long established and sensible, it is remarkable how many cases revisit it, perhaps because some lawyers did not pay attention in law school and continue to argue that “adverse” possession depends on the adverse possessor’s knowledge of intrusion onto the property of another and intent to take it.

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