Author name: jsinger

No easement by necessity when parcel is landlocked because of eminent domain

/ Servitudes, Takings

When a taking of property by eminent domain to build a highway bifurcated a parcel, one part became landlocked but obtained access to a public road by permission over neighboring property. When that permission ended many years later and the parcel became landlocked the owner sought an easement by necessity over the neighbor’s land but the court found the traditional requirements for such an easement to be lacking. Since the parcel had not become landlocked when severed from the neighboring land there was no basis for imposing an obligation on that neighbor to create an easement for access to the roads. Nor did the owner obtain a prescriptive easement because access to the land had been by permission. No claim was made for a constructive trust or easement by estoppel, alternative theories that might have been relevant if the owner of the servient estate had induced the owner of the …

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Tribal sovereign immunity precludes tax foreclosure action against tribe

/ Tribal Property

The Supreme Court’s recent reaffirmation of the long-standing rule that that Indian nations have sovereign immunity from suit in the absence of waiver by the tribe or abrogation by Congress, Michigan v. Bay Mills Indian Cmty., 134 S.Ct. 2024 (2014),  led the Second Circuit to reaffirm its earlier decision to deny a county the power to foreclose on tribal land for failure to pay state property taxes. Cayuga Indian Nation v. Seneca Cnty., 2014 WL 3746795 (2d Cir. 2014). While having a right without a remedy would seem to render the right meaningless, the oddity of this situation can be attributed to the vagaries of federal Indian law and casts doubt on the wisdom of earlier decisions that authorized the state to tax tribal land. For the earlier Second Circuit decision, see Oneida Indian Nation of N.Y. v. Madison Cnty., 605 F.3d 149 (2d Cir. 2010), vacated, 131 S.Ct. 704 (2011). The Supreme Court decision …

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State did not dispossess owners and thus did not “take’ lands in violation of the constitution merely by asserting ownership

/ Takings, Title Issues, Trespass, Water Rights

The Texas Supreme Court affirmed its ruling that the border between state-owned submerged lands and private lands along the coast is the “mean higher high tide line” or the mean location of the high tide line over the regular tidal cycle of 18.6 years. Porretto v. Tex. Gen. Land Office, 2014 WL 2994436 (Tex. 2014). In various ways, agents of the state of Texas has acted so as to claim public rights in property that is on the “private” or landward side of the line. The Texas General Land Office (GLO) claimed that it owns lands that the Texas Supreme Court says are privately owned; that office also requested that tax records be changed to indicate state ownership of those lands. These statements have made it harder for private owners to sell those lands. However, since the GLO ended its bid to change the tax rolls to claim public ownership of those lands …

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No prescriptive easement for underground sewer pipe because the use was not open and notorious

/ Easements, Servitudes, Trespass

The Massachusetts Land Court has held that no prescriptive easement can arise no matter how long a sewer pipe has traversed a neighbor’s property because the non permissive use was not “open and notorious” and there were no other indications that the pipe was there. 143-145 Nahant Rd, LLC v. Mastoras, (Mass. Land Ct. 2014), 2014 WL 2548094, 42 Mass. Lawyers Weekly 1879 (July 7, 2014). With no easement, the use was likely a trespass although that was a question on remand.

Robo-signing mortgage servicer may have violated state false document statute

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

The Ninth Circuit held that a mortgage servicer that allegedly engaged in robo-signing may well have violated an Arizona statute, Ariz. Rev. Stat. § 33-420, that criminalizes filing false property title documents with the state recording offices. In re Mortg. Electronic Registrations Systems, Inc (Robinson v. Am. Home Mortg. Serv. Inc.), 2014 WL 2611314, 2 014 U.S. App. LEXIS 10934 (9th Cir. 2014). There was  evidence that trustee’s sale documents were notarized in blank and signed later by a person other than the one who was supposed to sign the document. Such signings were also done in bulk (robo-signing) and because not signed by the correct person were forged. In addition, notaries are supposed to witness the signature not notarize a blank document before any signature appears. The case is notable because the servicer was MERS (Mortgage Electronic Registration Systems, Inc.). Judge William Fletcher engaged in a detailed discussion about the advantages …

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Mortgage can be equitably reformed because of mutual mistake

/ Mortgages, Real Estate Transactions, Statute of Frauds

In a classic application of a traditional doctrine of contract law, the Massachusetts Land Court allowed a mortgage document to be reformed because of mutual mistake. Citibank, N.A. v. Heywood, 2014 WL 2158409 (Mass. Land Ct. 2014). While courts are very reluctant to amend written property documents or contracts because of unilateral mistake, it is standard practice to ignore the written terms of the agreement, despite the statute of frauds, when the evidence shows that it does not reflect the intent of both parties. The court noted that [A] court acting under general principles of equity jurisprudence has broad power to reform, rescind, or cancel written instruments, including mortgages, on grounds such as fraud, mistake, accident, or illegality” as long as the mistake was mutual.

Massachusetts SJC considers remedies for seller’s breach of promise to sell

/ Real Estate Transactions, Title Issues

In K.G.M. Custom Homes, Inc. v. Prosky, 10 N.E.3d 117 (Mass. 2014), the Supreme Judicial Court of the Commonwealth of Massachusetts held that a buyer can choose to seek either specific performance or damages when a seller breaches the promise to sell. The issue was hard because Massachusetts allows only specific performance as a remedy for anticipatory breach and the complaint had alleged only anticipatory breach. Because the issue of actual breach was fully litigated and the court found the seller to have committed an actual breach, the judge was justified in giving the plaintiff a choice of remedies. Massachusetts law also provides that a liquidated damages clause does not prevent an aggrieved party from seeking specific performance of a real estate transaction. The court also affirmed the rule that every contract contains an “implied covenant of good faith and fair dealing.” That covenant “exists so that the objectives of the contract may …

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Contractual power to modify condo declaration held to be complete defense to claim of deceptive conduct under state consumer protection law

/ Condominiums and Homeowners Associations, Consumer Protection, Real Estate Transactions, Servitudes

The Seventh Circuit found no deceptive conduct within the meaning of the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA) when a condo developer substantially changed the governing documents after the condo sales. Goldberg v. 401 North Wabash Venture LLC, 2014 WL 2579939 (7th Cir. 2014). The case concerned Trump Tower in Chicago which contains hundreds of residential condominium units and hundreds of hotel condominium units as well as substantial retail space and other facilities. The purchase agreement gave TrumpOrg the “right, in its sole and absolute discretion, to modify the Condominium Documents.” Writing for the three-judge panel and applying Illinois law, Judge Posner held that this clause was sufficient to immunize TrumpOrg from any claim of deceptive conduct. Thus the hotel condo owners had no rights when TrumpOrg “greatly curtailed the owners’ rights in the hotel facilities.” Nor did the conduct violate the statute governing condominiums.

Trademark Trial and Appeal Board cancels trademark for Washington pro football team name

/ Antidiscrimination Law, Intellectual Property, Tribal Property

In another case in a long-running saga, the Patent and Trademark Office cancelled the federal registration for the “Washington Redskins” on the ground that the name is disparaging in violation of Section 2(a) of the Trademark Act of 1946, 15 U.S.C. §1052(a). Blackhorse v. Pro-Football, Inc., U.S. P.T.O. Canc. No. 92046185 (June 18, 2014).

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