Author name: jsinger

House that substantially encroaches on neighboring property is a continuing trespass and neighbor has the right ask for its removal

/ Easements, Servitudes, Trespass

When someone intentionally builds a building or part of a building on land owned by another, the land owner may obtain an injunction ordering removal of the trespassory structure. But when someone innocently builds a structure that encroaches on neighboring property, many courts today applied the undue hardship or relative hardshp doctrine and allow the structure to remain on the ground that land owner is partly at fault for not noticing the incursion and stopping it before substantial expense is undertaken by the innocent builder. In such cases, the court usually orders a forced sale of the land on which the building sits. See, e.g., Somerville v. Jacobs, 170 S.E.2d 805 (W.Va. 1969). However, older cases would order removal rather than a forced sale and the Rhode Island Supreme Court apparently prefers the older approach.  In Rose Nulman Park Found. ex rel. Nulman v. Four Twenty Corp., 93 A.3d 25 (R.I. 2014), …

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Tenants protected from retaliatory eviction need not prove landlord’s subjective intent, only that the tenants protected actions were the “but for” cause of the eviction

/ Consumer Protection, Leaseholds

Tenants who complained about the electrical system and were then evicted could prove retaliatory eviction and stave off eviction merely by showing that their protected action was the “but for” cause of the eviction. They need not prove the landlord’s subjective intent and the eviction following their complaint placed the burden on the landlord to show that the eviction was not retaliatory. Elk Creek Mgmt. Co. v. Gilbert, 303 P.3d 929 (Or. 2013).

Odors do not constitute a trespass

/ Nuisance, Trespass

The South Carolina Supreme Court affirmed the traditional distinction between nuisance and trespass law by holding that invasion by microscopic particles does not constitute a trespass. Owners located near a landfill needed to make a nuisance claim and prove unreasonableness rather that merely asserting a claim for a physical invasion. Babb v. Lee County Landfill SC, LLC, 747 S.E.2d 468 (S.C. 2013). Some courts have altered the traditional rules and have found a trespass when pollution enters the ground and causes substantial harm but the South Carolina Supreme Court rejected that approach

Private owner may not sue for public nuisance without proof of special injury

/ Nuisance

The North Dakota Supreme Court affirmed the traditional rule (rejected now by some courts) that a private owner cannot sue for a public nuisance unless the owner can show special damage to the owner’s property that is different in scope or character to that suffered by the general public. Hale v. Ward County, 848 N.W.23 245 (N.D. 2014).

No statute of limitations bars a claim to set aside a forged deed and subsequent mortgage

/ Adverse Possession, Consumer Protection, Mortgages, Real Estate Transactions, Statute of Frauds, Title Issues

The New York Court of Appeals had reaffirmed the traditional rule that forged deeds do not convey title. It has clarified that no statute of limitations bars a challenge to a forged deed even if the purported owner has subsequently transferred interests in the land to a subsequent mortgagee who had no notice of the forgery. Faison v. Lewis, 32 N.E.3d 400 (N.Y. 2015). The Court ruled that the third party purchaser is not a “bona fide” purchaser protected by the recording act because a forged deed can never be the basis of a valid transfer even if the third party did not know and could not have known about the forgery. To do otherwise would allow the forger to “steal” property and get away with it.

Washington Supreme Court joins courts that reverse the presumption of permissiveness for prescriptive easements

/ Adverse Possession, Easements, Servitudes, Title Issues

In general, possession of property owned by another is presumed to be non-permissive. Thus, one can obtain property by adverse possession if one actually possess real property in a visible manner for the statute of limitations without regard to proof of lack of permission. Many courts apply the same presumption to claims for prescriptive easements. The reason is that some border cases (such as use of a strip of property for driveway purposes) may involve both an adverse possession claim and a prescriptive easement claim and it is thought to be irrational to reverse the presumptions for the two doctrine. A significant minority of courts however now reverses the presumption when a prescriptive easement is claimed on the ground that neighbors often allow neighbors to make limited uses of their property and that such neighborly accommodations are generally informal grants of permission for such uses. It seems wrong to punish …

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Public housing tenant can be evicted for criminal drug use without any protections otherwise available under state law

/ Leaseholds

A Wisconsin state statute provides tenants a 5-day right to cure any violation of the lease terms before being evicted. Wis. Stat. §704.17(2)(b). But the Wisconsin Supreme Court concluded that public housing tenant who engages in drug-related activity can be evicted without a right to cure because federal law (the Anti-Drug Abuse Act of 1988, 42 U.S.C. §1437d(1)(6), provides that any such activity is grounds for eviction. The state statute was preempted by federal law and thus could not stand as an impediment to the eviction. Milwaukee City Hous. Auth. v. Cobb, 860 N.W.2d 267 (Wis. 2015).

Mortgagor cannot challenge foreclosure because of lack of evidence of valid mortgage assignments

/ Mortgages, Real Estate Transactions

The Nebraska Supreme Court has joined other courts that have held that a bank that holds the mortgage note may foreclose on the property even if there is no evidence of a valid chain of mortgage assignments and some doubt about whether the foreclosing party has the right to foreclose. Marcuzzo v. Bank of the West, 862 N.W.2d 281 (Neb. 2015). The theory is that the holder of the note generally is a person entitled to enforce the note and that, assuming the mortgage note is a negotiable instrument under the Uniform Commercial Code, the holder of the note has the power to enforce it through foreclosure. If the wrong party is foreclosing, the correct party can sue the foreclosing party to recover its money. The homeowner is arguably not harmed because it defaulted on the mortgage and thus lost the right to keep the home. If the only issue is who …

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Local sex offender law violates state regulatory provisions

/ Homelessness, Restraints on Alienation, Zoning

Like other cities, the City of Lynn in Massachusetts sought to regulate where sex offenders live. It prohibited certain sex offenders from living within 1,000 feet of a school or park and defined “school” to include all public, private, and church schools. The effect of the ordinance was to prevent sex offenders from spending a night in ninety-five percent of the city, including in a shelter or half-way house designated for sex offenders. The Supreme Judicial Court struck down the local ordinance as exceeding the scope of local government powers because it was inconsistent with state legislation establishing a sex offender registry and regulating sex offenders. Doe v. City of Lynn, 36 N.E.3d 18 (Mass. 2015). The local law effectively would make sex offenders homeless and would make it impossible for state authorities to track them to protect the public. In addition, the state statutes had a much narrower set of rules …

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Supreme Court will decide whether a bakery must sell wedding cake to a same-sex couple as required by Colorado public accommodations law

/ Antidiscrimination Law, Consumer Protection, Religious Freedom, Trespass

On June 26, 2017, the Supreme Court took certiorari in this case under the name, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n. (No. 16-111). The Colorado Court of Appeals has affirmed the Civil Rights Division’s that a bakery must sell wedding cakes to same-sex couples if they would ordinarily do so to male-female couples. Mullins v. Masterpiece, 2015 Colo. App. LEXIS 121, 2015 COA 115 (Colo. App. 2015). State law prohibits discrimination on the basis of sexual orientation in public accommodations, and neither the state statute itself nor the constitution entitles the providers of goods and services to engage in proscribed discrimination for religious reasons. The court rejected the bakery’s contention that it was acting on the basis of an opposition to same-sex marriage rather than an intent to discriminate on the basis of sexual orientation. The court held that it did not matter that the bakery would sell baked goods other than a …

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