District of Columbia prohibits noncompetition clause in sale of grocery store

Posted on March 29th, 2015 by Joseph William Singer.
Categories: Real estate transactions, Restraints on alienation, Servitudes.

The District of Columbia  passed legislation designed to prevent a grocery store owner from selling the property with a covenant that would have prevented the property from being used for grocery store purposes because this would deny residents in the neighborhood easy access to a grocery store. read article  The legislation is similar to the ruling of the New Jersey court in Davidson Bros, Inc. v. D. Katz & Sons, Inc., 643 A.2d 642 (N.J. Super. Ct. App. Div. 1994).

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Sex offender residency law struck down as unconstitutional by California Supreme Court

Posted on March 12th, 2015 by Joseph William Singer.
Categories: Due process, Homelessness.

The California Supreme Court has struck down a voter initiative that barred all sex offenders from living within 2000 feet of schools and parks. In re Taylor, 83 U.S.L.W. 1299, 2015 BL 54822 (Cal. 2015). The court held that the ban deprived sex offenders of liberty without due process of law because it rendered many sex offenders homeless and was not reasonably related to government interests in protecting children. Because 97 percent of the county was off limits to sex offenders, many had no place where they could live or receive medical treatment and services, depriving them of constitutionally protected liberty interests. The law also  made it difficult or impossible for the sex offenders to be monitored by parole officers, thereby defeating the purpose of the regulation and depriving it of any rational relationship to the legitimate government objective of protecting the public.

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Fair Housing Act’s Disparate Impact Claims at Issue

Posted on December 29th, 2014 by Joseph William Singer.
Categories: Antidiscrimination law, Fair Housing Act, Real estate transactions.

The Supreme Court has taken certiorari in a Fifth Circuit case to address the question of whether disparate impact claims are available under the Fair Housing Act (FHA), 42 U.S.C. §§3601 et seq. Tex. Dep’t of Hous. & Comty. Affairs v. The Inclusive Communities Project, Inc., 135 S.Ct. 46 (2014), on appeal from The Inclusive Communities Project, Inc. v. Tex. Dep’t of Hous. & Comty. Affairs, 747 F.3d 275 (5th Cir. 2014). All federal Circuit Courts to address the issue have found such claims to be available and the Department of Housing and Urban Affairs has fairly recently promulgated a regulation defining the test for disparate impact claims under the FHA. 24 Code Fed. Reg. Part 100, §§100.5 to 100.500.

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City can demolish blighted structure it believes is financially unreasonable to repair

Posted on December 23rd, 2014 by Joseph William Singer.
Categories: Due process, Eminent domain, Takings.

The Michigan Supreme Court overturned a lower court ruling that had held it to be unconstitutional for a city to demolish a structure that the city believes is financially unreasonable to repair even if the owner claims to want to make the repairs. The court held that it does not constitute a deprivation of due process of law to require the demolition given the fact that the owner allowed the property to become dilapidated and the city could rationally believe that demolition was the best remedy to remove the public nuisance. Bonner v. City of Brighton, 848 N.W.2d 380 (Mich. 2014).

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Servient owner entitled to change easement location

Posted on December 23rd, 2014 by Joseph William Singer.
Categories: Easements, Real estate transactions, Servitudes.

The Vermont Supreme Court has adopted the rule promoted by the Restatement (Third) of Property (Servitudes), §4.8(3), allowing the owner of a servient estate to relocate an easement if this does not reduce the utility of the easement to the owner of the dominant estate. Roy v. Woodstock Cmty. Trust, Inc., 94 A.3d 530 (Vt. 2014). The case concerned an underground easement for water lines.

The court also held that the dominant estate owner was entitled to build a housing complex and that this development did not exceed the scope of a right-of-way easement even though it had been originally used only by a church.

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Easement by necessity implied over government land

Posted on December 23rd, 2014 by Joseph William Singer.
Categories: Easements, Real estate transactions.

A Hawai`i court has recognized an easement by necessity over government land when the landlocked parcel was separated from land belonging to the state. Malulani Group, Ltd. v. Kaupo Ranch, Ltd. 329 P.3d 330 (Haw. 2014). The court held that the intent of the parties determines whether an easement exists over remaining land of the grantor to ensure access to a public road from an otherwise landlocked parcel. The court also held that no statute of limitations bars assertion of an easement by necessity.

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New Jersey Supreme Court confirms state constitution’s grant of free speech rights to enable a coop owner to disseminate written information to co-owners

Posted on December 10th, 2014 by Joseph William Singer.
Categories: Condominiums, Consumer protection, Free speech, Trespass.

While the US Constitution’s free speech provisions in the first amendment apply only to state action, both California and New Jersey have interpreted their state constitutions to grant individuals free speech rights in some cases in relation to private parties. In both states, citizens have the right to distribute leaflets in shopping centers. In Dublirer v. 2000 Linwood Avenue Owners, Inc., 2014 WL 6777311 (N.J. 2014), a resident wanted to run for a seat on the Board of Directors of the coop and sought to distribute materials relevant to his campaign and he was prevented from doing so by the coop board. The Supreme Court of New Jersey held that the coop rule banning soliciting and distributing written materials in the building was unreasonable and a violation of the resident’s state constitutional free speech rights. The ruling reaffirmed and expanded on the rulings in earlier cases that protected free speech rights of owners in common-interest communities when those owners wanted to post signs. See Mazdabrook Commons Homeowners’ Ass’n v. Khan, 46 A.3d 507 (N.J. 2012); Comm. for a Better Twin Rivers v. Twin Rivers Homeowners Ass’n, 929 A.2d 1060 (N.J. 2007).


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New York law protects inheritance rights of children conceived after the death of their biological parents

Posted on December 1st, 2014 by Joseph William Singer.
Categories: Wills and inheritance.

New York state has adopted a statute that defines procedures for ensuring that children conceived after the death of their biological parents can inherit property, receive Social Security survivor benefits, and benefit from trusts established for them. The law applies to  ova or sperm that are stored for use after the death of a biological parent, usually when that parent knows his or her lifespan is limited. The law requires a written declaration of the purpose for which the biological material was stored, recording of the document in public records, and requires the genetic child to be in utero within 24 months or born within 33 months of the death of the genetic parent. read article

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Cert denial brings same-sex marriage to many more states

Posted on October 7th, 2014 by Joseph William Singer.
Categories: Antidiscrimination law, Marital property, Sexual orientation.

The Supreme Court’s refusal to take certiorari in a number of cases means that same-sex marriage will become legal in Indiana, Oklahoma, Utah, Virginia and Wisconsin, and soon afterwards in Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming bringing the total number of jurisdictions to 31 (including the District of Columbia) plus at least 5 Indian nations. In addition a ruling by a three judge panel in the 9th Circuit on Oct 7, 2014 will likely open up Nevada and Idaho as well, making a total of 33 jurisdictions. States that still ban same-sex marriages include Alaska, Montana, Arizona, North Dakota, South Dakota, Nebraska, Texas, Missouri, Arkansas, Louisiana, Michigan, Ohio, Kentucky, Tennessee, Mississippi, Alabama, Georgia and Florida. Jessica Meyers, Appeals rejected, way cleared for wider same-sex marriage: court action likely to affect 11 more states, Boston Globe, Oc. 6, 2014.

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No easement by necessity when parcel is landlocked because of eminent domain

Posted on August 10th, 2014 by Joseph William Singer.
Categories: Servitudes, Takings.

When a taking of property by eminent domain to build a highway bifurcated a parcel, one part became landlocked but obtained access to a public road by permission over neighboring property. When that permission ended many years later and the parcel became landlocked the owner sought an easement by necessity over the neighbor’s land but the court found the traditional requirements for such an easement to be lacking. Since the parcel had not become landlocked when severed from the neighboring land there was no basis for imposing an obligation on that neighbor to create an easement for access to the roads. Nor did the owner obtain a prescriptive easement because access to the land had been by permission. No claim was made for a constructive trust or easement by estoppel, alternative theories that might have been relevant if the owner of the servient estate had induced the owner of the landlocked parcel to invest in reliance on the easement. The implication of the case may be that the owner should have received a greater amount of just compensation at the time of the exercise of the eminent domain power given the landlocked nature of the property. Clifton v. Wilkinson, 748 S.E.2d 372 (Va. 2013).

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Tribal sovereign immunity precludes tax foreclosure action against tribe

Posted on August 3rd, 2014 by Joseph William Singer.
Categories: Tribal property.

The Supreme Court’s recent reaffirmation of the long-standing rule that that Indian nations have sovereign immunity from suit in the absence of waiver by the tribe or abrogation by Congress, Michigan v. Bay Mills Indian Cmty., 134 S.Ct. 2024 (2014),  led the Second Circuit to reaffirm its earlier decision to deny a county the power to foreclose on tribal land for failure to pay state property taxes. Cayuga Indian Nation v. Seneca Cnty., 2014 WL 3746795 (2d Cir. 2014). While having a right without a remedy would seem to render the right meaningless, the oddity of this situation can be attributed to the vagaries of federal Indian law and casts doubt on the wisdom of earlier decisions that authorized the state to tax tribal land. For the earlier Second Circuit decision, see Oneida Indian Nation of N.Y. v. Madison Cnty., 605 F.3d 149 (2d Cir. 2010), vacated, 131 S.Ct. 704 (2011). The Supreme Court decision holding that tribal land is subject to state taxes at least when it was held by non-Indians in fee simple and bought back by the tribe even if it is within the original borders of tribal territory and the cession of land was never lawfully ratified by statute or treaty. City of Sherrill, NY v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005).

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West and Lexis have “fair use” rights to publish searchable versions of briefs

Posted on July 16th, 2014 by Joseph William Singer.
Categories: Intellectual property.

Judge Jed Rakoff of the Southern Districit in New York   held that legal publishers West and Lexis did not violate copyright law by publishing searchable versions of lawyers briefs. Their conduct was a protected “fair use” because it was transformative, changing the purpose and character of the works. White v. West Publ’g Corp., 2014 WL 3057885 (S.D. N.Y. 2014).

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State did not dispossess owners and thus did not “take’ lands in violation of the constitution merely by asserting ownership

Posted on July 16th, 2014 by Joseph William Singer.
Categories: Takings, Title issues, Trespass, Water rights.

The Texas Supreme Court affirmed its ruling that the border between state-owned submerged lands and private lands along the coast is the “mean higher high tide line” or the mean location of the high tide line over the regular tidal cycle of 18.6 years. Porretto v. Tex. Gen. Land Office, 2014 WL 2994436 (Tex. 2014). In various ways, agents of the state of Texas has acted so as to claim public rights in property that is on the “private” or landward side of the line. The Texas General Land Office (GLO) claimed that it owns lands that the Texas Supreme Court says are privately owned; that office also requested that tax records be changed to indicate state ownership of those lands. These statements have made it harder for private owners to sell those lands. However, since the GLO ended its bid to change the tax rolls to claim public ownership of those lands and, “even though the [GLO] lawyers’  statements injured the [landlowners]”, the state did not actually dispossess the owners and therefore did not “take” their property without just compensation in violation of the takings clause.

The court also held that the line separating public and private ownership does not change because of state renourishment of beaches. “The State does not gain the dry beach by dumping sand on it,, nor does it lose what was before the wet beach, even if the renourishment pushes the MHHT [mean higher high tide] line farther seaward, which is usually the purpose of renourishment.”

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No prescriptive easement for underground sewer pipe because the use was not open and notorious

Posted on July 11th, 2014 by Joseph William Singer.
Categories: Easements, Servitudes, Trespass.

The Massachusetts Land Court has held that no prescriptive easement can arise no matter how long a sewer pipe has traversed a neighbor’s property because the non permissive use was not “open and notorious” and there were no other indications that the pipe was there. 143-145 Nahant Rd, LLC v. Mastoras, (Mass. Land Ct. 2014), 2014 WL 2548094, 42 Mass. Lawyers Weekly 1879 (July 7, 2014). With no easement, the use was likely a trespass although that was a question on remand.

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Massachusetts SJC considers remedies for seller’s breach of promise to sell

Posted on July 10th, 2014 by Joseph William Singer.
Categories: Real estate transactions, Title issues.

In K.G.M. Custom Homes, Inc. v. Prosky, 10 N.E.3d 117 (Mass. 2014), the Supreme Judicial Court of the Commonwealth of Massachusetts held that a buyer can choose to seek either specific performance or damages when a seller breaches the promise to sell. The issue was hard because Massachusetts allows only specific performance as a remedy for anticipatory breach and the complaint had alleged only anticipatory breach. Because the issue of actual breach was fully litigated and the court found the seller to have committed an actual breach, the judge was justified in giving the plaintiff a choice of remedies. Massachusetts law also provides that a liquidated damages clause does not prevent an aggrieved party from seeking specific performance of a real estate transaction. The court also affirmed the rule that every contract contains an “implied covenant of good faith and fair dealing.” That covenant “exists so that the objectives of the contract may be realized.”

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Mortgage can be equitably reformed because of mutual mistake

Posted on July 10th, 2014 by Joseph William Singer.
Categories: Mortgages, Real estate transactions, Statute of frauds.

In a classic application of a traditional doctrine of contract law, the Massachusetts Land Court allowed a mortgage document to be reformed because of mutual mistake. Citibank, N.A. v. Heywood, 2014 WL 2158409 (Mass. Land Ct. 2014). While courts are very reluctant to amend written property documents or contracts because of unilateral mistake, it is standard practice to ignore the written terms of the agreement, despite the statute of frauds, when the evidence shows that it does not reflect the intent of both parties. The court noted that [A] court acting under general principles of equity jurisprudence has broad power to reform, rescind, or cancel written instruments, including mortgages, on grounds such as fraud, mistake, accident, or illegality” as long as the mistake was mutual.

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Robo-signing mortgage servicer may have violated state false document statute

Posted on July 10th, 2014 by Joseph William Singer.
Categories: Consumer protection, Mortgages, Real estate transactions, Statute of frauds, Title issues.

The Ninth Circuit held that a mortgage servicer that allegedly engaged in robo-signing may well have violated an Arizona statute, Ariz. Rev. Stat. § 33-420, that criminalizes filing false property title documents with the state recording offices. In re Mortg. Electronic Registrations Systems, Inc (Robinson v. Am. Home Mortg. Serv. Inc.), 2014 WL 2611314, 2 014 U.S. App. LEXIS 10934 (9th Cir. 2014). There was  evidence that trustee’s sale documents were notarized in blank and signed later by a person other than the one who was supposed to sign the document. Such signings were also done in bulk (robo-signing) and because not signed by the correct person were forged. In addition, notaries are supposed to witness the signature not notarize a blank document before any signature appears. The case is notable because the servicer was MERS (Mortgage Electronic Registration Systems, Inc.). Judge William Fletcher engaged in a detailed discussion about the advantages and disadvantages of the MERS system.

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Trademark Trial and Appeal Board cancels trademark for Washington pro football team name

Posted on June 21st, 2014 by Joseph William Singer.
Categories: Antidiscrimination law, Intellectual property, Tribal property.

In another case in a long-running saga, the Patent and Trademark Office cancelled the federal registration for the “Washington Redskins” on the ground that the name is disparaging in violation of Section 2(a) of the Trademark Act of 1946, 15 U.S.C. §1052(a). Blackhorse v. Pro-Football, Inc., U.S. P.T.O. Canc. No. 92046185 (June 18, 2014).

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Contractual power to modify condo declaration held to be complete defense to claim of deceptive conduct under state consumer protection law

Posted on June 21st, 2014 by Joseph William Singer.
Categories: Condominiums, Consumer protection, Real estate transactions, Servitudes.

The Seventh Circuit found no deceptive conduct within the meaning of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA) when a condo developer substantially changed the governing documents after the condo sales. Goldberg v. 401 North Wabash Venture LLC, 2014 WL 2579939 (7th Cir. 2014). The case concerned Trump Tower in Chicago which contains hundreds of residential condominium units and hundreds of hotel condominium units as well as substantial retail space and other facilities. The purchase agreement gave TrumpOrg the “right, in its sole and absolute discretion, to modify the Condominium Documents.” Writing for the three-judge panel and applying Illinois law, Judge Posner held that this clause was sufficient to immunize TrumpOrg from any claim of deceptive conduct. Thus the hotel condo owners had no rights when TrumpOrg “greatly curtailed the owners’ rights in the hotel facilities.” Nor did the conduct violate the statute governing condominiums.

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First Circuit supports MERS

Posted on June 12th, 2014 by Joseph William Singer.
Categories: Mortgages, Real estate transactions.

The First Circuit reaffirmed its view of the validity of the MERS system under Massachusetts law. Mills v. U.S. Bank, (1st Cir. 2014) (reaffirming Culhane v. Aurora Loan Services of Nebraska, 708 F.3d 282 (1st Cir.2013)). The court explained that there was no conflict between MERS’s role as the “mortgagee” and MERS’s role as the nominee (agent) for the mortgagee (the actual Lender to whom promises were made under the note). Thus the note could be transferred from bank to bank while MERS held “legal title” to the mortgage, giving MERS the power to transfer legal title to the final note holder to allow it to foreclose on the property after default by the mortgagor. According to the court the “MERS framework…separates the legal interest [in the mortgage] from the beneficial interest [in the underlying debt]” and is valid. This separation is valid under Massachusetts law which allows the note to be held by one person and the mortgage (or right to foreclose) held by someone else.

In particular, the court found no contradiction between the mortgage language that described MERS both as the “mortgagee” and the nominee for the lender, rejecting the plaintiff’s argument that one cannot be both the principal and the agent. Rather, the court explained that “MERS validly serves both as the holder of ‘bare legal title as mortgagee of record’ and as ‘nominee for the member-noteholder.'”

One caution is that the First Circuit may or may not be accurately predicting how the Supreme Judicial Court of the Commonwealth of Massachusetts would interpret its mortgage law and foreclosure statutes.

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Oregon and Pennsylvania join the states with same-sex marriage

Posted on May 28th, 2014 by Joseph William Singer.
Categories: Antidiscrimination law, Marital property, Sexual orientation.

For the first time, federal court rulings seem to have brought same-sex marriage the states. Most of the states that have recognized such marriages have done so through state court rulings or legislation. However, federal court rulings have increasingly found same-sex marriage bans to violate the equal protection clause of the federal constitution. Most such rulings of federal district courts are on appeal and most were stayed during that appeal. However, the governors of both Oregon and Pennsylvania declined to appeal the rulings and no other parties appear to have been given standing to do so. Geiger v. Kitzhaber, 2014 U.S. Dist. LEXIS 68171 (D. Ore. 2014); Whitewood v. Wolf, 2014 U.S. Dist. LEXIS 68771 (M.D. Pa. 2014); That seems to place those states in the same-sex marriage column bringing the total number of jurisdictions with same-sex marriage to twenty (19 states plus the District of Columbia). The list includes California, Connecticut, Delaware, District of Columbia, Hawai`i, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington.

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Easement can be narrowed by servient estate owner

Posted on February 17th, 2014 by Joseph William Singer.
Categories: Easements, Servitudes, Statute of frauds, Title issues.

The Massachusetts Supreme Judicial Court ruled in Martin v. Simmons Props., Inc., 2014 WL 128537 (Mass. 2014), that the servient estate owner is entitled to narrow an easement as long as this does not interfere with the uses for which the easement was initially created. The court applied the traditional rule that easements are encumbrances on land and to be construed narrowly. At the same time, the touchstone was the intention of the parties that created the easement, determined both by the language in the easement and the circumstances at the time of creation of the easement. Because the documents and plan creating the easement did not specify an exact width of the easement or require that it be kept open through its full extent, the easement owner was entitled only to such use as was needed to afford access to the dominant estate. The court also reaffirmed the traditional rule that nonuse of an easement is not sufficient to establish abandonment of it.

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Scotland recognizes same-sex marriage

Posted on February 5th, 2014 by Joseph William Singer.
Categories: Marital property, Sexual orientation.

The Scottish Parliament passed the Marriage and Civil Partnership Bill allowing and recognizing same-sex marriage. It is the 17th country to do so. read article The vote was an astonishing 105-18.

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Owners who lost title to their homes through nonjudicial foreclosure are entitled to raise defenses to eviction

Posted on January 13th, 2014 by Joseph William Singer.
Categories: Consumer protection, Mortgages, Real estate transactions, Title issues.

The Supreme Judicial Court of the Commonwealth of Massachusetts has ruled that owners may make affirmative defenses to eviction claims by banks that acquired title to their property through a private or nonjudicial foreclosure. Bank of America v. Rosa, 466 Mass. 613 (2013). Those defenses may challenge the way in which the bank acquired title to the property through the foreclosure process and and power of the bank to foreclose in the first place. They may also include any equitable defenses that would defeat the claim for a right to possession of the property (the right to evict).

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Same-sex marriage gets a foothold in Utah and Ohio

Posted on December 24th, 2013 by Joseph William Singer.
Categories: Antidiscrimination law, Marital property, Sexual orientation.

A federal district court judge in Utah struck down the state’s marriage laws to the extent they disallowed same-sex couples to marry. Kitchen v. Herbert, (D. Utah 2013). Holding the right to marry to be a fundamental constitutional right and denial of that right to same-sex couples a violation of the equal protection clause in the U.S. Constitution, the judge refused to stay his opinion. As a result hundreds of couples began applying for and receiving marriage licenses. The decision is being appealed by the state of Utah and may be overturned by the Tenth Circuit. In a related ruling, a federal district court judge in Ohio ruled it unconstitutional for Ohio to deny marriage status to same-sex couples married out of state when one dies in-state. Obergefell v. Wymyslo, 2013 WL 6726688 (S.D. Ohio 2013).  the judge ordered that the death certificates record the fact that the decedent was married. read article

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