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.

Comments Off

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.

Comments Off

$2 million settlement agreement by landlord & building superintendent for systematic sexual harassment of tenants

Posted on May 9th, 2012 by Joseph William Singer.
Categories: Antidiscrimination law, Fair Housing Act, Leaseholds, Trespass.

On May 8, 2012, the U.S. Attorney’s office in Manhattan announced a $2 million settlement by a landlord, his building superintendent and the superintendent’s son to pay fines to tenants who were sexually harassed by the superintendent. The building superintendent was a convicted sex offender who served 14 years in prison for molesting or raping 3 girls and a woman before being hired by the landlord to run three buildings. The superintendent would enter women’s apartments while drunk and demand sex, retaliating when he did not get his way. Both the landlord and the superintendent are also barred by the agreement from owning or managing occupied properties. read article

Comments Off

Washington Supreme Court adopts relative hardship doctrine and refuses to order a house removed when it was unwittingly built on land owned by another

Posted on June 2nd, 2011 by Joseph William Singer.
Categories: Easements, Servitudes, Statute of frauds, Trespass.

Defendants unknowingly built their house on land that belonged to the plaintiff who also did not know that the land belonged to him. The mistake was discovered after the house was built and plaintiff sued to eject the trespassers from his land. The Washington Supreme Court denied injunctive relief, adopting the relative hardship doctrine. The court granted plaintiff damages for the value of the land encroached on by his neighbor’s structure but denied plaintiff an injunction ordering the structure removed. Proctor v. Huntington, 238 P.3d 1117 (Wash. 2010).

Comments Off

Owner may not cut down a tree straddling boundary line without neighbor’s consent

Posted on March 20th, 2011 by Joseph William Singer.
Categories: Nuisance, Trespass.

In Young v. Ledford, 37 So. 3d 832 (Ala. Ct. Civ. App. 2009), an Alabama court held that an owner could not remove the half of a tree that sat on his property without killing it and that the owner could not destroy the entire tree without the neighbor’s consent. The landowner claimed that the tree was dangerous and might fall on the owner’s house and the court noted that it is possible an exception might be granted in such cases of boundary trees when they constitute a nuisance.

Comments Off

Native Alaskan family awarded $4.9 million in damages for trespass

Posted on February 17th, 2011 by Joseph William Singer.
Categories: Trespass, Tribal property.

Comments Off

Google trespass on private road to photograph home garners $1 in damages

Posted on December 3rd, 2010 by Joseph William Singer.
Categories: Trespass.

A couple complained about the intrusion on their private road by a Google vehicle that photographed their home for Google Streetview. All claims for invasion of privacy and mental distress were dismissed but the trespass claim remained. The Third Circuit held, in Boring v. Google Inc., 362 Fed. Appx. 273 (3d Cir. 2010), that the owners were entitle to nominal damages but not punitive damages, creating a contrast with the well-known case of Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154 (Wis. 1997), which awarded $100,000 in damages for a willful trespass. On remand from the Third Circuit, the trial court signed off on a settlement giving the Borings $1 in damages for trespass. read article

Comments Off

Third Circuit allows trespass suit against Google

Posted on January 30th, 2010 by Joseph William Singer.
Categories: Trespass.

The Third Circuit allowed Pittsburgh couple Aaron and Christine Boring to proceed with their trespass suit against Google brought after a Google employee entered their land despite a “No Trespassing” sign to take pictures of their house and pool for use on Google Maps street view. Boring v. Google Inc., 2010 WL 318281 (3d Cir. 2010). The trial court had thrown out the trespass claim because the Borings had not alleged any damage from the trespass but the Third Circuit held that Pennsylvania law (like the law elsewhere) does not require proof of damage to find a trespass. Any unauthorized entry onto another’s land constitutes a trespass unless privileged. See article. On remand, if the trespass is proved factually, the land owners would be entitled at least to nominal damages, perhaps of $1. This would obviously not deter any business from trespassing unless it would be hurt by adverse publicity from such trespasses. The court refused to allow damages for harm caused by posting the photos on Google’s website because the court found that such postings would not be “highly offensive to a person of ordinary sensibilities” and thus would not be protected by the tort of invasion of privacy. Moreover, any such damages would be caused by publication of the photos, not by the trespass itself, and thus would not be appropriate as trespass damages.

It is unclear why the courts have not developed a rule that allows compensation for the indignity of an unauthorized entry in appropriate cases either to more fully compensate the owner for the invasion of property rights or to deter such activity by an actor likely to repeat the conduct. Compare the fair housing laws which give a right to compensatory damages for persons denied housing because of race even if they find substitute housing immediately afterwards and no economic injury can be shown. It is an interesting question whether juries should be allowed to give the equivalent of civil rights damages for trespasses in particular kinds of cases. Recall the famous case of Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154 (Wis. 1997), in which the court got around this problem by awarding punitive damages of $100,000 against a mobile home company that dragged a mobile home across the Jacque’s property against their express wishes. Query whether the Boring case would an appropriate one for punitive damages; is the “No Trespassing” sign equivalent to an order to stay off after requesting permission to enter?

Comments Off

Trespass and the right to roam

Posted on September 20th, 2009 by Joseph William Singer.
Categories: Trespass.

We generally take for granted that owners have the power to exclude non-owners from their land. But at one time in the United States,unenclosed and undeveloped land was open to the public for the purpose of hunting, gathering kindling and berries, and walking. Eric Freyfogle, The Lost Right to Roam, in On Private Property: Finding Common Ground on the Ownership of Land 29 (2007). Today, about half the states still allow hunting on private land unless the owner has posted “no trespassing” signs. Mark R.Sigmon, Hunting and Posting on Private Land in America, 54 Duke L.J. 549(2004). Moreover, owners who wanted to protect their fields from wandering cattle originally had to fence them out; they had no right to complain that a trespass had occurred when cattle wandered onto their property. Nor could railroads insist that cattle owners prevent them from intruding on train tracks. See, e.g., Nashville & Chattanooga Railroad Co. v. Peacock, 25 Ala.229 (1854); Macon & Western Railroad Co. v. Lester, 30 Ga. 911 (1860). Over time, the rules changed to place liability on cattle owners for damage to crops on the neighbors’ property and denied cattle owners remedies if their cattle wandered onto railroad tracks, effectively changing to a fencing-in system by which owners had the duty to keep their cattle from invading neighboring property.

The right to roam has long been recognized in Finland, Norway, and Sweden where anyone is entitled to hike across or camp in the countryside on the property of another as long as one does not disturb the owner. For information on Sweden, see link.  In 2000, the United Kingdom adopted the Countryside and Rights of Way Act 2000, Acts of 2000, ch. 37, guaranteeing public rights of access for recreational purposes (mainly walking) to certain categories of uncultivated countryside in England and Wales, see link. The Ramblers Association “campaigns to increase and protect public access to the countryside,” see link. Scotland adopted a similar act in 2003, see link. See also Jerry L. Anderson, Britain’s Right to Roam: Redefining the Landowner’s Bundle of Sticks, 19 Georgetown Int’l Envtl. L. Rev. 375 (2007).

Comments Off