Author name: jsinger

Section 8 recipients denied right to file §1983 suit for wrongful termination of benefits

/ Due Process

The Eleventh Circuit has overruled Basco v. Manchin, 514 F.3d 1177 (11th Cir. 2008) and held that federal law does not empower housing choice voucher (Section 8) holders to bring civil rights claims under 42 U.S.C. §1983 to contest wrongful termination of benefits by a housing authority. Yarbrough v. Decatur Housing Auth., 2019 WL 3521728 (11th Cir. 2019). In this case, the hearing officer determined that the arrest and indictment of the tenant for drug-related offenses was enough to establish by a preponderance of the evidence that the tenant was no longer legally entitled to receive Section 8 subsidies for housing. The tenant brought a §1983 claim in federal court arguing that the evidence was insufficient to prove that she was using or selling drugs and that a federal regulation interpreting the Federal Housing Act, 42 U.S.C. §1437 et seq., entitled here to continue receiving benefits unless there was sufficient evidence […]

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Owner seeking special permit has burden of showing it will not harm neighbors

/ Zoning

A zoning board granted a special permit to au auto body shop after placing the burden of proof on neighbors to show that the shop would release harmful chemicals into the air. The Court of Appeals reversed because the owner seeking the special permit (the auto shop) should have the burden of proving that its operation would not significantly decrease air quality. Fish v. Accidental Auto Body, Inc.,2019 WL 2236279, 95 Mass.App.Ct. 355(Mass. App. Ct. 2019). In addition, the Court found that there was evidence that the shop would release hazardous substances and no evidence that would not affect public health.

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Civil law or natural flow rule interpreted to allow artificial drainage of subsurface water

/ Nuisance, Water Rights

While the “free use” rule generally allows an owner to expel surface and subsurface water without liability, the civil law or “natural flow’ rule imposes liability on an owner who artificially captures and expels such waters, especially if done in a direction different from the watercourse or the natural direction of water flow. However, interpreting a state statute codifying the civil law rule, (S.D. Codified Laws §46A-10A-70, the South Dakota Supreme Court allowed an owner to expel subsurface waters through a drainage system as long as the water followed the natural direction of drainage and the water discharged into any established or natural watercourse. In re Drainage Permit 11-81, 922 N.W.2d 263 (S.D. 2019).

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California limits enforceability of private transfer fees

/ Estates and Future Interests, Real Estate Transactions, Restraints on Alienation, Servitudes

California passed a statute prohibited private transfer fees unless used exclusively to support the encumbered property or cultural, education, charitable, recreational, environmental, conservation, or similar activities. Cal. Civ. Code §1098.6 (2018 Cal. Stat. ch. 306). Note that the Federal Housing Finance Agency and the Federal Housing Administration are prohibited from dealing in mortgages on properties encumbered by private transfer fee covenants that do not provide a “direct benefit” to the real property encumbered by the covenant.12 C.F.R. §1228.1.

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Trespass to use mineral rights one property to extract minerals from a neighboring parcel

/ Easements, Trespass

The West Virginia Supreme Court held that a mineral owner or lessee that has the right to use the surface of one parcel to extract minerals or oil or gas from that parcel does not have the right to use that access to take minerals from neighboring parcels whose owners conferred no such rights. EQT Production Co. v. Crowder,2019 W. Va. LEXIS 271 (W.Va. 2019)

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Trademark Act provision disallowing registration of marks that are immoral or scandalous violates the first amendment

/ Free Speech, Trademarks

The Supreme Court has held, inIancu v. Brunetti, — U.S. — (2019), that the Constitution prohibits statutory distinctions between commercial speech based on its “viewpoint.” The provision of the Trademark Act taht prohibits federal registration of marks that are “immoral or scandalous,” 15 U.S.C. §1052(a) is thus unconstitutional. While several Justices would have interpreted the provision narrowly to outlaw speech based on its manner rather than its substance (for example, outlawing obscene, profane, or vulgar) and then upheld the constitutionality of the provision. The majority left it to Congress to try to adopt a narrower provision that would not distinguish between speech based on whether it is consistent with conventoinal morality. The end result is to allow Erik Brunetti to obtain trademark registration for his F-U-C-T line of clothing.

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Supreme Court opens federal courts to a floodgate of takings cases

/ Environmental Law, Historic Preservation Law, Zoning

In a 5-4 decision, the Supreme Court overruled Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985) and held that owners aggrieved by state regulations they believe took their property without just compensation can immediately sue for relief in federal courts under 42 U.S.C. §1983 even if state law would have provided just compensation through administrative procedures. Knick v. Twp. of Scott, — U.S. — (2019). The line-up is what one would expect with Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh and Thomas in the majority and Justices Kagan, Breyer, Ginsburg, and Sotomayor in the dissent. Roberts wrote the majority opinion and Kagan wrote the dissent. Thomas concurred. The argument for allowing federal court relief is that it makes it realistically possible for federal courts to determine whether states have denied property without just compensation. Previously, the owner had to exhaust state remedies up through the state supreme

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Nonjudicial foreclosure requires appraisal to ensure foreclosure price is close to fair market value

/ Consumer Protection, Mortgages, Real Estate Transactions

The Massachusetts Appeals Court has held that nonjudicial foreclosures must be conducted in a fair manner and that the burdens on the party who is foreclosing are greater precisely because the auction sale is not be supervised or conducted by judicial officials. Prop. Acquisition Group, LLC v. Ivester, 2019 Mass. App. LEXIS 44, 2019 WL 1716436 (Mass. App. Ct. 2019) held that the owner cannot be evicted from the property after foreclosure when the mortgagee failed in its duty of good faith and reasonable diligence by taking no steps before foreclosure to determine the fair market value of the property. “The mortgagee must get for the property as much as it can reasonably be made to bring and do what a reasonable person would be expected to do to accomplish that result…Where Massachusetts…allows foreclosure without judicial oversight, it is imperative that the foreclosing mortgagee know or ensure that efforts are taken

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Statute of frauds does not prevent recognition of a resulting trust

/ Real Estate Transactions, Statute of Frauds

When one person pays for real property but title is transferred to another, some courts will create a resulting trust. The Massachusetts Appeals Court defined the doctrine this way: “A resulting trust is implied when a transfer of property is made to one person and the purchase price is paid by another; in such a case a trust results in favor of the person who furnished the consideration. Such implication is based on the natural presumption that, in the absence of anything to show the contrary, he who supplies the purchase price intends that the property bought shall inure to his own benefit and not that of another, and that the conveyance is taken in the name of another for some incidental reason. A resulting trust must arise, if at all, at the time of the execution of the deed. The statute of limitations for a resulting trust claim is

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External stairway encroachment on neighboring land by one foot is allowed to remain with damages only for the trespass victim

/ Easements, Trespass

A Massachusetts court has found that a one foot encroachment on neighboring property by a new external stairway on a building is de minimus because the alley is hardly used, and the encroachment is both small and necessary to make the stairway consistent with the building code. Krieger v. Lanark LJS LLC, 2019 Mass. App. Unpub. LEXIS 345, 2019 WL 1976015 (Mass. App. Ct. 2019). A claim for injunctive release to move the encroachment was denied for those reasons and also because the encroaching owner had acted innocently, relying on an incorrect survey, and did not know that the stairway would extend onto the neighbor’s land. If the encroachment had been significant, an injunction would have been issued for it to be removed, even though it was built in a good faith belief that it was on the builder’s land. Here the encroachment was not significant because “the unlawful encroachment [was]

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