Author name: jsinger

Regulatory taking of water rights

/ Environmental Law, Takings, Water Rights

In a prior post, I explained the holding of a Texas Supreme Court opinion that held that regulation of water rights might constitute a regulatory taking. The text of that post is at the end of this one. A subsequent case involving similar facts actually held that limits on withdrawal of groundwater designed to preserve water for drinking purposes actually took the property rights of water rights owners who had received permits to use the water to irrigate their pecan crops. That case is Edwards Aquifer Auth. v. Bragg, 421 S.W.3d 118 (Tex. Ct. App. 2013) and it meant that the regulation in question could not be enforced without just compensation. It was expected that the Texas Supreme Court would hear that case on appeal to affirm or overrule its holding but surprisingly, the court has denied appellate review. Edwards Aquifer Auth. v. Bragg, 2015 Tex. LEXIS 400 (Tex. 2015). That either suggests approval …

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Express easement is permanent even if created out of necessity and the necessity ends

/ Easements, Servitudes, Statute of Frauds

The Montana Supreme Court has affirmed a traditional rule of property law that express easements are presumed to be permanent even if they are created for reasons that later cease to exist. In this case, the easement was originally necessary to link the property to a public road. When such easements are not created expressly, courts imply them over remaining land of the grantor to ensure that properties do not become landlocked. Such easements traditionally last as long as the necessity lasts. Express easements however are permanent even if created to link a landlocked parcel to a public road and the necessity ends because another means of access (over land of a stranger to the title) becomes available. Woods v. Shannon, 344 P.3d 413, 2015 MT 8 (Mont. 2015).

Massachusetts state law prohibits covenants that could last forever

/ Real Estate Transactions, Servitudes

Case description here was previously posted but this is an update/correction. Massachusetts statutes limit covenants to 30 years if they contain no time limitation.  Mass Gen. Laws ch. 184, §23. There is an exception for covenants in transfers for public, charitable or religious purposes. Restrictions may be extended beyond thirty years only if, prior to the thirty year time has passed, a majority of the owners agrees to allow extensions for twenty years at a time and the extension is recorded. Mass. Gen. Laws ch. 184, §27(b). The statute allows further extensions on the same conditions, i.e, that a majority of the owners votes to extend the restrictions for another 20 years and that they record their agreement before the end of the 30 year period since the last extension. In Berger v. 2 Wyndcliff, LLC, 2015 WL 1775527 (Mass. Land Ct. 2015), the Massachusetts Land Court read these two statutes together to …

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Nuisance claim against nuclear weapons plant proceeds

/ Environmental Law, Nuisance

The Tenth Circuit is allowing a nuisance claim to proceed against a nuclear power plant, finding it not to be preempted by the Price-Anderson Act, 42 U.S.C. §2014, a federal regulatory statute. Cook v. Rockwell Intl Corp., 2015 WL 3853593 (10th Cir. 2015). Property owners claimed damage from the nuclear weapons manufacturing plant causes by releases of plutonium and other hazardous substances from the plant.

Supreme Court finds fundamental liberty and equality interests in extending right to marry to same-sex couples

/ Antidiscrimination Law, Due Process, Marital Property, Religious Freedom, Sexual Orientation

On June 26, 2015, the Supreme Court held in Obergefell v. Hodges, — U.S. — (2015), that the Constitution’s due process clause protects liberty interests that include personal choices central to individual dignity and autonomy and that those include the right to marry, including someone of the same sex. The Court also held that it violates equal protection of the laws to allow male-female couples to marry but to deny that right to same-sex couples. For the same reasons, states must recognize same-sex marriages validly celebrated in other states.

Supreme Courts affirms disparate impact claims under the Fair Housing Act (with a caveat)

/ Antidiscrimination Law, Consumer Protection, Fair Housing Act, Real Estate Transactions

The United States Supreme Court announced its decision in Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 2015 WL 2473449, — U.S. — (2015), upholding disparate impact claims under the Fair Housing Act (FHA), 42 U.S.C. §3601 et seq. The case involved a challenge to criteria used by a state agency on where to give tax credits that subsidize construction of low-income housing. Plaintiff is a nonprofit organization that promotes housing for low-income families. It claimed that the agency’s formula steered housing to poorer areas and thus perpetuated or aggravated racial segregation in housing. The specific question taken by the Supreme Court was whether disparate impact claims are at all available under the Fair Housing Act. The Court decided that they are but limited them because of constitutional principles. The Court noted that earlier cases had upheld disparate impact claims in employment discrimination when the statutes focused on consequences of …

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Takings clause applies to physical seizure of personal property

/ Due Process, Eminent Domain, Personal Property, Takings

The Supreme Court held in Horne v. Dep’t of Agric., — U.S. — (2015), that the takings clause applies to physical takings of personal property (like cars) as well as to real property. Thus a government program designed to shore up the price of raisins by requiring farmers to hand over a certain percentage of the raisin crop to the government effected a categorical physical taking of personal property. The limit on supply of raisins for sale was intended to increase the price farmers receive for the raisins they sell, thus promoting the profitability of their businesses. The expropriated raisins are given away or sold by the government and if any profits remain they are returned to the farmers. The Court held any economic benefits farmers received from increased raisin prices or moneys from sales of the raisins turned over to the government do not affect the question of whether a taking has occurred. …

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California Supreme Court Upholds San Jose Inclusionary Zoning Ordinance Against a Takings Challenge

/ Antidiscrimination Law, Eminent Domain, Real Estate Transactions, Takings, Zoning

The California Supreme Court has upheld the inclusionary zoning ordinance of the City of San Jose against a challenge that it constitutes an illegal exaction and violates the state constitution’s takings clause or the federal constitution’s takings clause. Cal. Bldg. Indus. Ass’n v. City of San Jose, 2015 Cal. LEXIS 3905 (Cal. 2015). The ordinance required all new development projects containing 20 housing units or more to reserve 15 percent for sale at affordable prices to low- or moderate-income families. San Jose Mun. Code, §§ 5.08.010 to 5.08.730. The Court held that the municipal government had the power to enact reasonable land use regulations designed to increase the amount and dispersion of affordable housing and that this ordinance served those ends. Because it regulated land use, it did not constitute an “exaction” or forced donation of land to public use. The Court held that so long as a land use regulation does …

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Postforeclosure judicial process satisfies due process clause

/ Consumer Protection, Due Process, Mortgages, Real Estate Transactions, Title Issues

The Sixth Circuit has ruled that nonjudicial foreclosure satisfies constitutional due process requirements because the homeowner/borrower was given notice of the foreclosure and notice of who to cure the default or seek a loan modification and how to redeem the property (get it back) after the foreclosure sale during a six-month redemption period. Garcia v. Fed. Nat’l Mortg. Ass’n,  782 F.3d 736 (6th Cir. 2015). These statutory procedures satisfied the constitutional right to notice and an opportunity to be heard before being deprived of a property right.

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