Author name: jsinger

Court refuses to allow emotional damages for negligent killing of a pet

/ Personal Property

If someone negligently kills someone else’s pet, courts generally limit damages to the market value of the animal and do not allow damages to be assessed for loss of companionship even though this amount does not adequately account for the emotional loss. In Strickland v. Medlen, 397 S.2d 3d 184 (Tex. 2013), a dog escaped the family’s backyard and was picked up by the animal control officials. When the owner went to pick up the dog, he did not have enough money to pay the required fees. Although the shelter tagged the dog to alert workers that the owner was coming back to retrieve the dog, a shelter worker mistakenly put the dog to sleep. The court held that emotional distress damages are not available for the negligent destruction of a dog even though Texas does allow such damages for the loss of a family heirloom. The court noted that loss of …

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Publicity rights limited by free speech guarantees

/ Free Speech, Intellectual Property

In the well-known case of Martin Luther King, Jr. Center for Social Change v. American Heritage Products, 296 S.E.2d 697 (Ga. 1982), plaintiffs Coretta Scott King, administrator of Dr. King’s estate and Martin Luther King, Jr. Center for Social Change, and Motown Records, an assignee of the rights to several of Dr. King’s recorded speeches, sued defendants to stop them from manufacturing and selling plastic busts of Dr. Martin Luther King, Jr. The Georgia Supreme Court recognized a “celebrity’s right to the exclusive use of his or her name and likeness” and rejected defendant’s contention that the First Amendment protected the right to manufacture and sell busts of public figures. In contrast, the Sixth Circuit held in ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003), that the First Amendment protected an artist’s right to sell prints of his painting that depicted Tiger Woods’s victory at the 1997 Masters Tournament. In a similar …

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High-rise apartment building held to be a private nuisance

/ Nuisance, Real Estate Transactions

In 1922, the U.S. Supreme Court upheld the power of municipalities to enact zoning laws that limit land to residential use and even to single-family homes. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). The Euclid decision suggested that apartment buildings might constitute nuisances and destroy the “residential character” of a neighborhood. Id. at 394–395. Is that a legitimate way to characterize apartment buildings and/or the people who live in them? In the 2014 case of Loughhead v. 1717 Bissonnet, LLC, 2014 WL 8774060 (Tex. Dist. Ct. 2014), final judgment at 2014 WL 8774079 (Tex. Dist. Ct. 2014), a Texas court actually found a proposed high rise building in the City of Houston, Texas, to be a nuisance. Houston is unusual in the United States because it lacks a comprehensive zoning law. The proposed structure would have been 21 stories tall and contain 228 residential units along with commercial development. The judge upheld a jury verdict that …

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Anticompetitive covenant in shopping center lease broadly construed

/ Leaseholds, Real Estate Transactions, Restraints on Alienation, Servitudes

Following Florida law, the Eleventh Circuit construed the terms of restrictive covenants in shopping center leases broadly. Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008 (11th Cir. 2014). The covenants were part of the leases granted to Winn-Dixie supermarkets and protected it from competition by limiting the ability of other stores to sell “staple or fancy groceries” to a discrete “sales area.” Traditionally, ambiguities in covenants were construed to limit the covenant, freeing the servient estate owner to a broader use of its property and Florida precedents have adopted that  position. Moore v. Stevens, 106 So. 901, 903 (Fla. 1925) (ambiguous “covenants are strictly construed in favor of the free and unrestricted use of real property”). However, applying a recent holding from a Florida state court, see Winn-Dixie Stores, Inc. v. 99 Cent Stuff-Trail Plaza, LLC, 811 So.2d 719 (Fla. Dist. Ct. App. 2002),  the Eleventh Circuit held that the term “groceries” applied not …

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Municipalities cannot regulate political content of signs

/ Free Speech, Zoning

In the 2015 case of Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015), the Court struck down a local ordinance that banned “ideological signs” that “communicat[e] a message or ideas.” The ordinance also limited “political signs” to election season and limited the times when plaintiff church was allowed to post “directional signs” bearing the name of the church and the time and location of the next service. The Court noted that content-based restrictions on speech are presumptively unconstitutional and could only be justified if they serve a compelling government interest, a showing that could not be made by the town. Further, the town had ample alternative ways to regulate the placement and size of signs to satisfy public safety and aesthetic concerns.

Banks that foreclose without legal authority to do so commit the tort of wrongful foreclosure

/ Consumer Protection, Estates and Future Interests, Mortgages, Real Estate Transactions, Title Issues

The California Supreme Court held in Yvanova v.  New Century Mortgage Corp.,, 365 P.3d 845 (Cal. 2016), that a borrower has standing to prove that a nonjudicial foreclosure was wrongful because an assignment by which the foreclosing entity purportedly took a beneficial interest was void, thereby depriving the foreclosing party of any authority to foreclose through a trustee’s sale.  In a follow up case, Sciarratta v. U.S. Bank Nat’l Ass’n, 2016 Cal. App. LEXIS 399 (2016), the Court of Appeals held that foreclosure by an entity with no power to foreclose is, by itself, the tort of wrongful foreclosure. Even if the borrower is in default, and someone has the right to foreclose, that does not mean that any person with a claim can bring the foreclosure. Only a party with a better claim to title — someone with the legal authority to foreclose — can oust a peaceable possessor from their home. …

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HUD Guidance on discriminatory refusals to rent to tenants with criminal records

/ Antidiscrimination Law, Fair Housing Act, Leaseholds, Real Estate Transactions

Now that the Supreme Court has definitively found that the federal Fair Housing Act, 42 U.S.C. §§3601-3631, prohibits practices that have a disparate impact on protected groups, see Tex. Dept of Hous. & Comty. Affairs v. Inclusive Comtys. Project, Inc., 135 S. Ct. 2507 (U.S. 2015), consequences of that decision are becoming more clear. On April 4, 2016, the Office of General Counsel for the U.S. Department of Housing and Urban Development (HUD) issued a Guidance on the application of the Fair Housing Act to decisions by landlords and sellers related to tenants and buyers with criminal records. Office of General Counsel on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real-Estate Related Transactions (Apr. 4, 2016). The Guidance notes that a greater percentage of African Americans and Latinos than whites have criminal records. The refusal to rent or sell to persons with criminal records may …

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Second Circuit follows HUD regulation requiring plaintiffs in disparate impact cases to prove a less discriminatory way to achieve the defendant’s legitimate interest

/ Antidiscrimination Law, Fair Housing Act, Transactions, Zoning

In MHANY Mgmt., Inc. v. County of Nassau, 2016 U.S. App. LEXIS 5441 (2d Cir. 2016), the Second Circuit adopted the burdens of proof for disparate impact claims under the Fair Housing Act spelled in the regulations of the U.S. Department of Housing and Urban Development. Those rules place the burden on the plaintiff to prove a discriminatory effect either by showing a disparate impact on a protected group or a segregative effect. If that can be shown, the burden shifts to the defendant to show a “substantial, legitimate, nondiscriminatory interest” that justifies the discriminatory effect. At that point, the HUD regulations, now adopted and approved by the Second Circuit, put the burden of proof on the plaintiff to show that the “substantial, legitimate, nondiscriminatory interest” of the defendant “could be served by another practice that has a less discriminatory effect.” 24 C.F.R. § 100.500(c)(3). The Second Circuit, and some other Circuits, …

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Prescriptive easement granted for underground utility lines

/ Easements, Title Issues, Trespass

An easement may be acquired by prescription if one engages in visible (“open and notorious”) use of another’s property in a continuous manner for the period of the statute of limitations. Most state presume such uses are permissive although a growing minority of states presume permission. A crucial requirement is that the use be visible to the servient estate owner. How then could underground utility lines (which are obviously hidden) be sufficiently visible to be acquired by prescription? The Massachusetts Land Court ruled that an owner can acquire an easement by prescription for underground utility lines if physical clues on the land would put a reasonable owner on notice that the lines exist. Dunning v. Larsen, 2015 WL 5920263 (Mass. Land Ct. 2015). In this case the dominant estate owner also was using a road over the servient estate and the utility lines were underneath that road. While the lines themselves …

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