Municipal attempt to induce residents to move because of race violates Fair Housing Act even if they do not move

Posted on November 8th, 2013 by Joseph William Singer.
Categories: Antidiscrimination law, Consumer protection, Fair Housing Act.

The Sixth Circuit has held that §3617 of the Fair Housing Act, 42 U.S.C. §3601 et seq., prohibits conduct intended to encourage residents to move even if they are not denied housing or induced to move. Hidden Village, LLC v. City of Lakewood, 2013 WL 5811642 (6th Cir. 2013). The basic provisions of the FHA (embodied in §3604) prohibit denying housing for discriminatory reasons, providing unequal and discriminatory terms and conditions for housing, and expressing an invidious preference for buyers or renters of a particular race, sex, etc. Section 3617 prohibits coercion, intimidation, threats, or any interference with any person’s right to exercise the fair housing rights protected by 3604. Federal courts have been confused and divided over whether §3617 provides a remedy when there is no underlying §3604 violation.

In Hidden Village, municipal officials were unhappy with a religious youth service that helps young people released from foster care or juvenile detention enter society. It planned to house its clients in apartments leased from a private landlord. Following a zoning controversy over whether the use was a lawful “residential” use or a prohibited “institutional” use, municipal officials engaged in a campaign to make life difficult for the charity’s beneficiaries by issuing numerous citations for minor offenses and conducting a warrantless search of the housing premises.

The Sixth Circuit acknowledged that there had been uncertainty about the meaning of §3617 but held that it prohibits conduct intended to interfere with someone’s ability to obtain or enjoy housing whether or not there is an independent violation of one of the terms of §3604. The Court explained:

“[D]efendants argue that they may not be charged with violating § 3617 unless they separately violated at least one of the provisions in §§ 3603–3606. We disagree. Section 3617 nowhere says that it comes into play only when a violation of one of these other sections has also occurred. An example confirms the freestanding nature of some § 3617 claims. Suppose Alice says to Bob, a prospective home buyer, “If a seller ever discriminates against you because of your race, sue him!” Eve, a racist eavesdropper, becomes enraged upon hearing this conversation and threatens to assault Alice. At this point, Eve has violated § 3617, regardless of whether she discriminated against Bob or otherwise violated the fair housing rights secured by §§ 3603–3606. Eve has “threaten[ed] … [a] person,” namely Alice. And this threat was “on account of [Alice's] having aided or encouraged any other person in the exercise or enjoyment of [a fair housing right].” Eve threatened Alice because Alice had encouraged Bob to protect himself against discrimination relating to housing. The statute requires no more.”

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Illinois is likely to become the 15th state to allow same-sex marriage

Posted on November 6th, 2013 by Joseph William Singer.
Categories: Antidiscrimination law, Marital property, Sexual orientation.

The Illinois House has passed a marriage equality bill that is virtually certain to become law in some form in the near future given the support in the Senate and by the Governor. Once that happens, 15 states will have same-sex marriage along with the District of Columbia. The outcome is more uncertain in Hawai`i but the legislature may vote in favor of a same-sex marriage bill in the next days.

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First Circuit holds there is no federal remedy for discriminatory treatment by store personnel

Posted on November 5th, 2013 by Joseph William Singer.
Categories: Antidiscrimination law, Personal property.

Once again a federal court has held that the Civil Rights Act of 1866 (as amended in 1991) provides no relief to a store customer who was subjected to racial insults while trying to buy merchandise. The First Circuit held, in Hammond v. Kmart Corp., 2013 WL 5763267 (1st Cir. 2013), that the “right to contract” protected by 42 U.S.C. §1981 only protects the ability to enter a contract; it provides no relief for racially disparate treatment when one is in a store. Because the customer was able to complete the transaction (laying away merchandise), the store did not prevent her from “contracting.” Being subjected to “racial slurs and insults” as she was engaged in the transaction did not deter her from completing the transaction.

The ruling oddly protects those who are deterred from completing the sale but not those who insist on going through with it despite the discriminatory treatment. It also fails to consider the wording of §1982 which protects the “right to purchase personal property.” Nor does it comprehend that treatment while in the store is part of the contractual process; contracting does not happen at a discrete magic moment.

The federal public accommodations law, 42 U.S.C. § 2000a, does not cover retail stores so with no §1981 remedy, the plaintiff found herself wholly unprotected by federal statutes. The plaintiff did make a state common law claim of infliction of emotional distress, although it was not clear why she did not also make a claim under the state public accommodations statute, Mass. Gen. Laws ch. 272, §98 which provides: “Whoever makes any distinction, discrimination, or restriction on account of race…relative to the admission of any person to, or his treatment in any place of public accommodation…shall be liable to any person aggrieved thereby…”

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Cheyenne and Arapaho Tribes authorize same sex marriages

Posted on November 1st, 2013 by Joseph William Singer.
Categories: Antidiscrimination law, Marital property, Religious freedom, Sexual orientation, Tribal property.

The Cheyenne and Arapaho Tribes have allowed several same-sex couples to marry under tribal law. The tribal code is neutral with respect to the gender of persons who can get married and merely require one of the parties to be a tribal citizen. read article

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Rent escrow law held constitutional

Posted on October 29th, 2013 by Joseph William Singer.
Categories: Consumer protection, Due process, Leaseholds.

The Ninth Circuit has upheld a city administrative program that regulated landlords whose buildings violated the housing code by allowing tenants to pay a reduced rent into a publicly administered escrow fund which is paid to the landlord once the violations are corrected.    Sylvia Landfield Trust v. City of Los Angeles, 2013 WL 4779664 (9th Cir. 2013). Four landlords challenged the program as a violation of their substantive rights under the due process clause. The court upheld the program because it was rationally related to the legitimate government goal of enforcing the housing code to protect tenants from unsafe conditions.The landlords had claimed that the tenants caused the problems, that their properties were not sufficiently substandard to warrant application of the law, and that the program was intended to enrich the government. The court rejected all these claims, noting that the law allowed landlords to prove that tenants were responsible for the conditions and that the program was designed to promote compliance with safety regulations, not to generate income for the government. The program therefore did not arbitrarily deprive the landlords of their liberty or property; nor was it taken ‘with deliberate indifference toward…constitutional rights.”

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Same-sex marriage prevails in New Jersey

Posted on October 21st, 2013 by Joseph William Singer.
Categories: Antidiscrimination law, Marital property, Sexual orientation.

Given the clear statement by the Supreme Court of New Jersey on how it was likely to rule in the pending marriage equality case, (see Garden State Equality v. Dow (N.J. 2013). Governor Chris Christie decided to drop the appeal. read article. That leaves the lower court ruling (read opinion here) in place with its conclusion that civil unions are not equal to marriages now that the federal government provides same-sex married couples the same federal rights as male-female married couples but does not confer such rights on partners to a civil union. The New Jersey Supreme Court’s prior ruling in Lewis v. Harris, 908 A.2d 196 (N.J. 2005), had found it to be a violation of the state constitution not to grant same-sex couples the same rights as married couples but left it to the legislature whether to call the resulting unions “marriages” or “civil unions” or something else. While New Jersey conferred equal rights under state law to “civil union” couples, they could not grant them the federal benefits of married couples; that would have been true even if they had allowed “marriages.” But after United States v. Windsor, married same sex couples do have the same federal benefits and married male-female couples so that created an inequality between married New Jersey couples and civil union New Jersey couples that could not stand under the state constitution.

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Same sex marriage to begin in New Jersey

Posted on October 19th, 2013 by Joseph William Singer.
Categories: Antidiscrimination law, Marital property, Sexual orientation.

The Supreme Court of New Jersey unanimously upheld the decision of a trial judge to allow same-sex marriage to proceed pending appeal of the trial judge’s ruling that the New Jersey civil union law violates equal protection by denying same-sex couples the same rights as granted to married couples under federal law. Garden State Equality v. Dow, (N.J. 2013). The court had previously held that same-sex couples were entitled under the state constitution to the same rights and privileges as married male-female couples but allowed the legislature to determine whether to accomplish this end by extending marriage rights to same-sex couples or adopting a civil union law. Because the legislature adopted a civil union law, such couples had the same rights under state law as did male-female couples; they had different rights under federal law but that was because federal law refused to recognize any same-sex couples as married for any federal purposes and the state could not change that situation.

However, after the Supreme Court decision in United States v. Windsor, 133 S.Ct. 2675 (2013), required the federal government to treat couples as married for federal purposes if they were married under state law, an inequality has now been introduced into New Jersey law. Before Windsor, civil union couples had the same rights as married male-female couples under state law but unequal rights with regard to federal law; that was something state law could not fix. But now that federal law gives married same-sex couples the same rights under state and federal law, it has been true that civil union couples in New Jersey are denied federal rights they would have if they were married under state law. The court determined that this likely violated the equal protection clause and that the state had no legitimate state interest to violate the constitution while the appeal proceeded. Same sex marriages will begin on Monday Oct 21 while the appeal in the NJ Supreme Court will take place in January 2014.

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Trademark registration denied for a racial slur

Posted on October 6th, 2013 by Joseph William Singer.
Categories: Intellectual property.

The Trademark Trial and Appeal Board refused to register “the Slants” as the name of an Asian-American band, despite its attempt to turn the name from an ethnic slur into a mark of pride. In re Tam, No. 85472044, 9/26/13. The federal trademark law prohibits registration of any mark that “may disparage or bring into contempt or disrepute persons, institutions, beliefs or national symbols.” 15 U.S.C. §1052(a). Even though the band sought to “take back” the ethnic slur by appropriating it (as happened with the term “queer” for gay people), the board refused registration because the derogatory meaning of the name was clear in context. The mere fact that the ones using the term were themselves East Asians did not automatically convert the term into one that was not disparaging. Note that the decision merely prohibits federal registration of the mark; it does not prevent the band from continuing to use the name and attempting to change views about its meaning.

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Conditional permits subject to relaxed standard of review rather than the rigorous proofs required for variances

Posted on October 2nd, 2013 by Joseph William Singer.
Categories: Zoning.

New Jersey confusingly refers to conditional permits as “conditional use variances.” This language makes it easy to confuse conditional permits and variances. In TSI East Brunswick, LLC v. Zoning Bd. of Adjustment of Tp. of East Brunswick, 71 A.3d 762 (N.J. 2013), the Supreme Court of New Jersey reaffirmed the traditional rule that variances should be granted only in cases of unusual hardship (or other statutory requirements) because they allow something to be done that violates the intent of the zoning ordinance. Conditional permits, on the other hand, allow an activity to occur on land as long as the conditions are met and thus are subject to a lower standard of proof; they are presumptively permitted (as long as the conditions are established) rather than presumptively prohibited.

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City ordinance intended to exclude a group home can constitute intentional discrimination even if there is no evidence of an impact on the group home

Posted on October 2nd, 2013 by Joseph William Singer.
Categories: Antidiscrimination law, Fair Housing Act.

The Ninth Circuit affirmed that an action intended to discriminate in violation of the Fair Housing Act (FHA) creates a claim for which relief can be granted even if it has not had any other impact on the plaintiff. Pac. Shores Props., LLC v. City of Newport Beach, 2013 WL 5289100 (9th Cir. 2013). In this case, a city passed an ordinance intended to exclude group homes for recovering alcohol and drug users; it had terms that had the practical effect of prohibiting group homes from opening in most residential areas. The court held that a claim could be brought even if the plaintiff could not prove that the ordinance actually prevented it from acquiring property and operating. The ruling tracks prior case law which allow a damages claim for a prospective tenant denied housing because of her race even if she finds an apartment across the street five minutes later that is cheaper and better. Zoning practices that discriminate against individuals with disabilities can be discriminatory and violate the FHA if they contribute to making unavailable or denying housing to those persons.

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Patron can sue for ADA violations by a diner even if he never went there

Posted on October 2nd, 2013 by Joseph William Singer.
Categories: Antidiscrimination law, Trespass.

A patron who knew he could not enter a diner because the diner did not have wheelchair access could sue the diner and its landlord for violating the Americans with Disabilities Act even though he never went to the diner and tried to get in. Kreisler v. Second Ave. Diner Corp., 2013 WL 5340465 (2d Cir. 2013). The mere fact that he was deterred from going to the diner is enough to give him standing to bring a claim for violating the public accommodation provisions of the ADA. Moreover, once he had standing to sue for one violation, he could sue the diner for other violations of the statute that relate to his particular disability even if he has never been inside.

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Nevada allows domestic violence victims to escape lease obligations

Posted on September 28th, 2013 by Joseph William Singer.
Categories: Leaseholds.

A new Nevada statute allows domestic violence victims to move out and terminate any obligations under an existing lease. 2013 Nev. Stat. 301.

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Right to farm law prevents nuisance suit

Posted on September 28th, 2013 by Joseph William Singer.
Categories: Nuisance.

In Toftoy v. Rosenwinkel, 983 N.E.2d 463 (Ill. 2012), the court enforced the state right to farm act to prevent a homeowner from suing a neighboring cattle farm for creating a nuisance. The home owner tried to get around the right to farm statute by arguing that the farm was established after the house had been present. But the court focused on the fact that the the tenant had moved out of the house before the farm was established and that only after the farm was in operation did the home owner demolish the house, build a new one, and move in. The court found that the plaintiff had come to the nuisance despite the fact that a house had been on the property before the farm was established and that the purpose of the right to farm law was to codify the “coming to the nuisance” defense to any nuisance claim.

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Foreclosure purchaser cannot use self-help to evict tenant at will

Posted on September 28th, 2013 by Joseph William Singer.
Categories: Leaseholds, Mortgages, Real estate transactions.

New Hampshire law allows tenancies to be created at-will; that means they can be terminated by either party at any time. When the landlord lost the property through foreclosure, the tenancy ended automatically and no new landlord/tenant relationship was established merely because the tenant kept living on the property. Nor did a state statute that specifically prohibited self-help eviction, N.H. Ev. Stat. §540-A, apply in such a case. Nonetheless, the New Hampshire Supreme Court ruled that summary process was available to evict recover possession of the property and that this available procedure impliedly removed the self-help option. Evans v. J Four Realty, LLC, 62 A.3d 869 (N.H. 2013).

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Idaho Supreme Court allows MERS to initiate foreclosure proceedings

Posted on September 28th, 2013 by Joseph William Singer.
Categories: Mortgages, Real estate transactions.

The Idaho Supreme Court endorsed the power of MERS (Mortgage Electronic Registration Systems) to initiate nonjudicial foreclosure proceedings. Edwards v. Mortg. Elec. Registration Sys. Inc., 300 P.3d 43 (Idaho 2013).The court held that MERS was an agent (nominee) for the actual lender and holder of the beneficial interest in the deed of trust and could act on behalf of its principal. The original deed of trust named Alliance Title as trustee, Lehman Brothers as the lender, and MERS as the beneficiary as nominee for the lender. After MERS substituted a new trustee, the borrower defaulted and the new trustee filed a notice of default to begin foreclosure proceedings. Although the court held that MERS could not be the beneficiary (since no debt was owed to it), MERS could be an agent for the beneficiary (in this case, Lehman Brothers). As agent for the beneficiary, MERS had legal authority to record the notice of default, appoint a new trustee, and initiate foreclosure proceedings.

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State seizure of unused traveler’s checks survives substantive due process challenge

Posted on September 28th, 2013 by Joseph William Singer.
Categories: Due process, Personal property, Takings.

Kentucky had a law declaring unused traveler’s checks to be abandoned property if they are not used after a period of fifteen years; such property escheated to the state. When the legislature reduced the period from fifteen to seven, the change was challenged as a violation of due process of law. The Sixth Circuit held that the legislation was consistent with the due process clause on the ground that substantive due process requires only that the legislation be rationally related to a legitimate government interest. In this case, the legislation shortening the period from fifteen years to seven was a legitimate revenue-raising measure. American Express Travel Related Services Co. v. Kentucky, 641 F.3d 685 (6th Cir. 2013). The court refused, however, to rule on the question of whether the law effected an unconstitutional taking of property without just compensation, unconstitutionally impaired American Express’s contractual obligations, or was unconstitutionally retroactive in application.

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Supreme Court taking cases from last Term

Posted on September 28th, 2013 by Joseph William Singer.
Categories: Takings.

In Arkansas Game & Fish Comm’n v. United States, 133 S.Ct. 511 (2012), the Supreme Court unanimously overruled the Federal Circuit decision in Arkansas Game & Fish Comm’n v. United States, 637 F.3d 1366 (Fed. Cir. 2011), that had 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 Court held that the mere fact that the flooding was temporary did not immunize the government from a takings claim. Justice Ginsburg’s opinion reaffirmed the Court’s preference for “situation-specific factual inquires” in this area, emphasizing that, with only two narrow exceptions, “no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking.” 133 S.Ct. at 518. Because permanent, government-induced flooding is very likely to constitute a taking, Pumpelly v. Green Bay Co., 80 U.S. 166 (1871), it is also possible that intermittent flooding may constitute a taking if it “interferes with private property,” taking into account whether the flooding was the intended or foreseeable result of government action, the owner’s reasonable, investment-backed expectations, the content of state property law, and the character of the land at issue.

In Koontz v. St. Johns River Water Management District, 133 S.Ct. 2586 (2013), the Supreme Court held that the Nollan/Dolan doctrine applied to monetary exactions as well as mandated dedication of property rights. The governmental body in Florida had proposed to allow an owner to dredge his property on the condition that several exactions were met. They included funding offsite mitigation projects on public lands. The Nollan/Dolan rule requires exactions to be substantially related to the reasons for the permit denial; the state cannot condition a land use permit on actions substantially unrelated to the reasons for the land use regulation. 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. In Koontz, the Supreme Court clarified that this rule of law constituted a particular application of the unconstitutional conditions doctrine and that the doctrine equally applied if the permit condition required monetary payments rather than forced dedication of an easement or land. Because the state law required those building on wetlands to offset the resulting environmental damage, the Koontz ruling requires the mitigation demands to be related to the reasons for the wetlands regulation (the “nexus” requirement) and that they be “roughly proportional” to the harm caused by the proposed development. The Court noted that some states have applied this test in the case of monetary exactions and that developing a workable test was not likely to be difficult.

The Court was divided, however, with four Justices dissenting in an opinion written by Justice Kagan.

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Right of entry held to be compensable under the takings clause

Posted on September 20th, 2013 by Joseph William Singer.
Categories: Estates & future interests, Real estate transactions, Takings, Title issues.

The Texas Supreme Court held that a transfer of land to a city with an option to repurchase if the property were ever used for non-park purposes constituted a fee simple subject to condition subsequent and that the right of entry was a property right for purposes of the takings clause and compensable when then city failed to honor the condition. El Dorado Land Co., L.P. v. City of McKinney, 395 S.W.3d 798 (Tex. 2013). The deed provided that the conveyance was “subject to the requirement and restriction that the property shall be used only as a Community Park” and gave the grantor the right to repurchase the property at the price the city paid for it or the current fair market value whichever was less if the property were not used for the designated purpose. Although the repurchase right was called an option to purchase, the Texas Supreme Court interpreted it as a right of entry.  When the city built a library on the property, the grantor sought to exercise the option; when the city did not respond to its demand, the grantor sued claiming the city had taken its right of entry without just compensation, and the high court agreed with its claim. The court remanded to determine whether construction of the library violated the conditions in the grant.

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Los Angeles rent escrow program upheld under constitutional challenge

Posted on September 18th, 2013 by Joseph William Singer.
Categories: Consumer protection, Leaseholds.

The Ninth Circuit upheld Los Angeles’s Rent Escrow Account Program that enables tenants to pay rent to a public account rather than to the landlord if the landlord fails to repair habitability violations. Sylvia Landfield Trust v. Los Angeles, 2013 WL 4779664 (9th Cir. 2013). The court found that the program served the legitimate government goal of ensuring compliance with regulations ensuring safe and habitable housing for tenants and that the program had adequate procedural safeguards to ensure it was not applied arbitrarily.

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Court shuts down resale of digital music files

Posted on September 18th, 2013 by Joseph William Singer.
Categories: Intellectual property.

Judge Richard J. Sullivan of the Southern District of New York held that owners of digital music have no right to sell that music to others. Capitol Records, LLC v. ReDigi Inc., 2013 WL 1286134 (S.D.N.Y. 2013). The case involved a company named ReDigi that created a software program that allowed legally-owned digital music files to be transferred by sale from one owner to a buyer in a manner that insured that the file was not retained on the original computer. The service also only allowed this to happen one file or album at a time so that it would not become a general means of selling the same song to multiple buyers. The service was limited to files purchased on iTunes or from another ReDigi user. The goal was to create a market for used digital music files.

The court found that the service resulted in a reproduction of the original file and that this was an unlawful copy within the meaning of the copyright act, as well as a violation of the copyright owners distribution rights and that the use was not a “fair use.” ReDigi had claimed that it was taking advantage of the “first sale” doctrine that allows those who buy a book or CD or DVD to resell it on the secondary market. The court disagreed because the sale of a CD does not involve a copy or a reproduction as is the case with digital files. Whether or not it would be a good idea to allow a secondary market in digital files, the court said, was an issue for Congress that might warrant amendment or modernization of the Copyright Act.

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Photography business cannot discriminate against same-sex couples

Posted on August 22nd, 2013 by Joseph William Singer.
Categories: Antidiscrimination law, Consumer protection, Religious freedom.

The Supreme Court of New Mexico has held that the state public accommodations law applies to a photography business that offers its services to the public. Because that law prohibits discrimination based on sexual orientation, the business could not lawfully refuse to take pictures at a same-sex commitment ceremony because of the owner’s religious beliefs. Elane Photography v Willock, — P.3d — (N.M. 2013). The state public accommodations law does not violate the owner’s free speech rights since professions involving creativity or expression are not exempt from those laws. The court explained that “Elane Photography believes that because it is a photography business, it cannot be subject to public accommodation laws. The reality is that because it is a public accommodation, its provision of services can be regulated, even though those services include artistic and creative work. Nor did the owner’s religious beliefs offer a reason to engage in discriminatory conduct. “Under established law, the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes),” the court explained, citing Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) .

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NJ Supreme Court holds that Governor Christie lacked authority to abolish the Council on Affordable Housing (COAH)

Posted on July 30th, 2013 by Joseph William Singer.
Categories: Antidiscrimination law, Zoning.

In 2011, Governor Chris Christie purported to abolish the Council on Affordable Housing (COAH), an agency set up by legislation and designed to implement the state’s Mount Laurel obligations; he planned to transfer its responsibilities to the Department of Community Affairs. The Supreme Court of New Jersey had held in the Mount Laurel litigation that towns were required to implement zoning laws in a manner that made room for all kinds of housing, including housing affordable by low and moderate-income families. S. Burlington County, NAACP v. Twp. of Mount Laurel (Mount Laurel II), 456 A.2d 390 (N.J. 1983); S. Burlington County, NAACP v. Twp. of Mount Laurel (Mount Laurel I), 336 A.2d 713 (N.J. 1975). When the legislature created an agency to manage those obligations, the court held that it constituted a legitimate institutional mechanism for complying with those constitutional obligations. Hills Dev. Co. v. Twp. of Bernards, 510 A.2d 621 (N.J. 1986). In In re Plan for Abolition of Council on Affordable Housing, 2013 WL 3717751 (N.J. 2013), the court interpreted the statute establishing COAH and the statute providing for reorganization of state government and determined that COAH was an independent agency that could not be abolished or reorganized without new authorizing legislation.

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New Jersey Supreme Court rules benefits of dunes in protecting homes must be counted against the losses from a partial taking in determining just compensation for a partial taking

Posted on July 8th, 2013 by Joseph William Singer.
Categories: Takings.

The Supreme Court of New Jersey has ruled that benefits to the property from a partial taking must be counted against the losses in determining just compensation. Borough of Harvey Cedars v. Karan, — A.3d —, 2013 WL 3368225 (N.J. 2013). In this case, the borough government took part of the beachfront owner’s property to construct dunes to protect the property from erosion or loss during storms. The court held that just compensation for the partial taking “must be based on a consideration of all relevant, reasonably calculable, and non-conjectural factors that either decrease or increase the value of the remaining property.  In a partial-takings case, homeowners are entitled to the fair market value of their loss, not to a windfall, not to a pay out that disregards the home’s enhanced value resulting from a public project. To calculate that loss, we must look to the difference between the fair market value of the property before the partial taking and after the taking.”

That meant that, in determining just compensation for the partial taking, the court must take into account the increase in value of the property that remained because of the taking and construction of the dune. The holding overrules a traditional legal rule that distinguished between compensable benefits that were special to the homeowner and noncompensable ones that were general benefits to the whole community. Getting rid of that distinction, the court simply required any benefits to the owner to be reasonably quantifiable to be measured against losses in market value caused by the partial taking.

 

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South Carolina prohibits transfer fee covenants

Posted on July 7th, 2013 by Joseph William Singer.
Categories: Consumer protection, Real estate transactions, Restraints on alienation, Servitudes.

South Carolina joins the growing list of jurisdictions that bans transfer fee covenants. 2012 S.C. Acts 106, codified at S.C. Code §27-1-70.

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Injunction granted without balancing interests against owner who deliberately violated a covenant

Posted on July 7th, 2013 by Joseph William Singer.
Categories: Servitudes.

The Rhode Island Supreme Court has held that an injunction can be granted to stop an owner from deliberately and knowingly violating a restrictive covenant. The traditional balancing of interests used to determine whether an injunction is appropriate need not be done when violation of a covenant is not inadvertent or unknowing. Cullen v. Tarini, 15 A.2d 968 (R.I. 2011). The court found that defendant knowingly violated a covenant that protected plaintiff’s view of the ocean. In such a case, plaintiff was entitled to an injunction to remove the offending structure despite the fact that defendant had already invested $1 million in the project.

In effect, the court treated servitudes as important property rights owned by the servitude beneficiary and found they cannot be violated simply by paying damages. The beneficiary has a right to enforcement without any need to show that the benefits of enforcement outweigh the costs. The court limited the relative hardship doctrine that balances the equities between the parties to situations where an innocent party proceeds without knowledge or notice that he is encroaching on another’s rights.

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