Author name: jsinger

Washington state law bans mortgage lender from changing locks and barring the borrower from her home after default but before foreclosure

/ Mortgages, Real Estate Transactions, Trespass

Many mortgage agreements allow the lender to change the locks on the door and take over the property when a borrower-mortgagor defaults or abandons the property; this is intended to prevent the property from becoming dilapidated or taken over by squatters. However, some banks have locked owners out of their homes after they default even if they are still living there and there is no evidence of abandonment or harm to the premises. The Washington Supreme Court outlawed this practice in  Jordan v. Nationstar Mortg., LLC, 2016 WL 3748978 (Wash. 2016), interpreting a state statute that denies the “owner of the mortgage” the power to “recover possession of the real property, without a foreclosure and sale according to law,” Rev. Code Wash. §7.28.230(1).  The court emphasized that Washington is a lien theory state that leaves title with the homeowner and gives the lender a lien on the property unlike title theory …

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North Carolina finds taking of properties restricted from development because listed for highway takings

/ Takings

In Kirby v. N.C. Dep’t of Transp., 2016 WL 3221090 (N.C. 2016), the North Carolina Supreme Court held that the state took property without just compensation under the state constitution when it published maps showing where roads would be placed in the future and what properties would have to be taken to enable those roads to exist. The underlying statute imposes restrictions on properties identified on the officials maps as likely to be taken for road purposes. No owner is allowed to obtain a building permit or a subdivision approval, although owners can apply for hardship exceptions to the building permit limitation. On the other hand property tax relief is also provided to these owners. Publication of the map does not mean the property actually will be taken; the state Department of Transportation is not obligated to build or complete the highway project. The Map Act could be justified as a legitimate …

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Taking of property when an easement is expanded beyond its original scope

/ Easements, Servitudes, Takings

In Marvin M. Brandt Revocable Trust v. United States, 134 S.Ct. 1257 (2014), landowners objected when an easement that had been granted for railroad purposes was converted to a trail for public hiking. An easement is a permanent right to use land owned by another for a specific purpose. State law determines how to interpret the scope of the purpose. Some states interpret a general right of way as not only giving the easement owner the right to pass over the land by walking or driving but a right to install utility lines; other states interpret the scope of the easement narrowly and would view utility lines as exceeding the scope of the easement. In addition, state law determines when an easement ends because of abandonment. Most states find that mere nonuse does not constitute abandonment. However, once state law determines that a use exceeds the scope of the easement or that …

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Sixth Amendment right to counsel prohibits state from freezing legitimate assets of a criminal defendant needed to pay for counsel of choice

/ Due Process, Personal Property

The Supreme Court held in Luis v. United States, 136 S.Ct. 1083 (U.S. 2016), that the government may not prevent a criminal defendant from using funds not derived from a crime to pay for counsel of choice. No constitutional issue arose from confiscating the proceeds of a crime but the law in question froze the defendant’s assets to ensure that moneys would be available to pay any eventual fines or penalties. While that was a legitimate government purpose it was not sufficient to justify the imposition on the defendant’s right under the Sixth Amendment to seek assistance of counsel of the defendant’s choice.

Texas beachfront property rights after hurricanes

/ Easements, Servitudes, Takings, Trespass, Water Rights

In general, when property borders change because of gradual accretion or erosion along rivers or oceans, then owners gain or lose land because of those changes.  If land is gradually added to an owner’s land by gradual build-up of sand or silt, then the owner’s property increases to that extent; the reverse is also true. But if the border changes suddenly (“avulsion”) then the borders do not change. The courts have generally applied these principles to beachfront property to determine the border between the private property rights of beachfront owners and the land owned by the public accessible by anyone. Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 560 U.S. 702 (2010), challenged a common law rule giving the public access to a new sand area on the beach created by government landfill. While refusing to decide whether a judicial common law ruling could be a taking, the Court …

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Massachusetts courts hostile to easement by necessity doctrine

/ Easements, Real Estate Transactions, Servitudes, Statute of Frauds

In Kitras v. Town of Aquinnah, 49 N.E.3d 198 (Mass. 2016), the Supreme Judicial Court of the Commonwealth of Massachusetts (SJC) refused to recognize easements by necessity for landlocked parcels. Massachusetts accepts the usual presumption that one who creates a landlocked parcel intends to give the owner of the landlocked parcel an easement over remaining land of the grantor to reach a public road. In most states the doctrine is based both on the implied intent of the grantor and public policy considerations that support access to land both to protect the landlocked owner’s right to access his or her land and general welfare considerations of making the land alienable and usable. However, the emerging majority rule seems to be that the touchstone is the intent of the parties and if the parties actually intend to create a landlocked parcel, they will be allowed to do so, and their arrangement will …

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Federal Circuit holds that first amendment protects right to use disparaging trademarks

/ Free Speech, Intellectual Property, Trademarks

In In re Tam, 808 F.3d 1321 (Fed. Cir. 2015), the Federal Circuit held the government could not withhold trademark registration because the name was disparaging. In re Tam involved a band called The Slants and the Patent and Trademark Office had determined that the name represented a racial slur that was disparaging to people of Asian descent and thus could not be registered as a trademark under the Lanham Act, and its ruling was upheld by the federal District Court. Band leader Simon Shiao Tam had argued that he was trying to reclaim the word just as the previously derogatory word “queer” had been reclaimed by LGBTQ persons. The Federal Circuit reversed the trial court’s ruling, finding Tam’s expressive speech to be protected by the first amendment even if the name was disparaging and its use a violation of the Lanham Act. The court did not address the question of how to deal …

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Homeless persons may raise defense of necessity to criminal trespass charges when entering property in winter to escape bitter cold

/ Homelessness, Trespass

In Commonwealth v. Magadini, Commonwealth v. Magadini, 2015 WL 11070269 (Mass. 2016), the Supreme Judicial Court of Massachusetts ruled that a homeless man who repeatedly entered private property in winter time to escape the cold was entitled to try to convince the jury that necessity justified the entries. David Magadini was homeless and was arrested and convicted seven times for sleeping in the lobby or hallway of commercial buildings that included retail establishments, offices, and apartments. Magadini was a lifelong resident of Great Barrington, Massachusetts, had no home, and had been barred in the past from staying a s homeless shelter in the town. The court held that necessity justifies trespass if (1) he faces a “clear and imminent danger”; (2) a reasonable expectation that the entry on property will abate the danger; (3) he has no “legal alternative which will be effective in abating the danger;” and (4) the “Legislature has not acted …

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