Author name: jsinger

Court affirms that nonuse does not extinguish an old easement

/ Adverse Possession, Easements, Real Estate Transactions, Servitudes

The Supreme Judicial Court of the Commonwealth of Massachusetts has reaffirmed that even longstanding non-use of an easement will not extinguish it or cause it to lapse because of prescription. Cater v. Bednarek, — N.E.2d —, 462 Mass. 523 (Mass. 2012). To extinguish an easement by prescription requires acts inconsistent with the easement that put the easement owner on notice that its uses are being disrupted. Moreover, if the servient estate owner makes only part of an easement inaccessible, it is extinguished only as to that part but not the rest. In addition, the court held that, where a deed does not specify the dimensions of the easement, it must be interpreted to establish dimensions that are reasonably necessary for the enjoyment of the dominant estate; the easement is not limited to the purposes for which the dominant estate was used at the time the easement was created. Moreover, if the easement …

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Federal Circuit denies takings claim when a personal computer is damaged after being taken by customs officials at an airport

/ Takings

The Federal Circuit ruled in Kam-Almaz v. U.S. 2012 U.S. App. LEXIS 12581 (Fed. Cir. 2012), that there was no unconstitutional taking of property when an individual’s computer was seized and examined at an airport immigration and customs station and returned with the hard drive damaged, resulting in the loss of irretrievable business records.The court held that property seized “pursuant to the police power” is not taken “for public use” within the meaning of the takings clause. Government can seize property for law enforcement purposes without implicating the takings clause, even if the property is thereby destroyed.

Homeowners’ Association sign regulations violate free speech rights under state constitution

/ Consumer Protection, Real Estate Transactions, Servitudes

The Supreme Court of New Jersey held in Mazdabrook Commons Homeowners’ Ass’n v. Khan, — A.3d —, 2012 WL 2120868 (N.J. 2012), that the free speech clause of the state constitution guarantees the right to post political signs on one’s property and that any covenants or rules of a homeowners association to the contrary are unenforceable. The owner in this case posted a sign inside the window of his townhouse and a second sign inside his door. Those signs supported his own candidacy for town council. The Association’s rules banned all signs other than “for sale signs.” The court distinguished its earlier ruling in Committee for a Better Twin Rivers v. Twin Rivers Homeowners’ Ass’n, 929 A.2d 1060 (N.J. 2007), which upheld minor restrictions on sign placement by property owners who were members of the association and did not involve an election to a state or local public office as was …

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Websites are public accommodations so Netflix must provide close captioning on web-streamed movies

/ Antidiscrimination Law, Consumer Protection

A federal judge in Massachusetts ruled that websites are “places of public accommodation” regulated by the Americans with Disabilities Act (42 U.S.C. §12182(a)), and thus the online movie service Netflix was required to provide closed captioning for all it “Watch Instantly” content. Nat’l Ass’n of the Deaf v. Netflix, Inc., 2012 U.S. Dist. LEXIS 84518 (D. Mass. June 19, 2012). The court’s judgment rested on the First Circuit’s conclusion that “places of public accommodation” under the ADA were not limited to “actual physical structures.” Carparts Distrib. Ctr. v. Auto. Wholesaler’s Ass’n, 37 F.3d 12, 19 (1st Cir. 1994).

Mass high court prospectively requires banks to physically possess the note as well as the mortgage in order to foreclose

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

In Eaton v. Fed. Nat’l Mortgage Ass’n (Fannie Mae), 2012 Mass. LEXIS 488 (Mass. June 22, 2012), the Supreme Judicial Court of Massachusetts held that a foreclosing party must be in physical possession of both the note and the mortgage (or be acting on behalf of someone who does) when bringing a foreclosure proceeding. However, the ruling applies only prospectively to foreclosures that occur in the future, with the exception that the plaintiff in Eaton that convinced the Court to clarify this rule can take the benefit of it. The refusal to apply the rule retroactively was based on the belief that the law may have been unclear beforehand and that it was the case that many people acted without regard for this principle in the past.

Rhode Island passes Homeless Bill of Rights

/ Antidiscrimination Law, Fair Housing Act, Personal Property, Trespass

The Rhode Island legislature passed a statute likely to be signed by the Governor called the “Homeless Bill of Rights.” The act amends Rhode Island’s fair housing law by adding “housing status” to the list of prohibited kinds of discrimination and defines housing status to mean “the status of having or not having a fixed or regular residence, including the status of living on the streets or in a homeless shelter or similar temporary residence.” It guarantees access to public spaces (including sidewalks and public buildings) on the same terms as others and grants a certain amount of protection for the personal property of the homeless. The law also ensures that public services are available to homeless persons. The bill is S 2052 Substitute B (2012) and it will amend R.I. Gen. Laws ch. 34 by adding §§34-37.1-1 to 34-37.1-5 and amending §§34-37-1 and 34-37-3.

Stray bullets from gun club ruled a nuisance

/ Nuisance, Zoning

A Massachusetts trial court has banned a gun club from allowing pistols and rifles to be fired on its premises in the face of evidence that stray bullets have entered neighboring properties. Read article Justice Charles Hely converted a three-year-old temporary restraining order into a permanent injunction and ordered payment of a total $22,000 in damages to be paid to several neighbors who lived within a half-mile radius of the club. One plaintiff narrowly escaped being hit by a bullet that entered her laundry room shortly after she left it. The club had also been shut down for failure to obtain necessary permits.

Adverse possession based on occupation not intent to dispossess

/ Adverse Possession

The Massachusetts Land Court has reaffirmed the longstanding rule that occupation of property is sufficient to  make it “adverse” or nonpermissive. Kissinger v. Frankelton, MISC 10-420652 (Mass. Land Ct. Mar. 8, 2012). Adverse possessors need not know they are occupying land of another or intend to wrest it from the control of others. Such a requirement would reward land pirates and deny protection to longstanding good faith possessors. While this rule is long established and sensible, it is remarkable how many cases revisit it, perhaps because some lawyers did not pay attention in law school and continue to argue that “adverse” possession depends on the adverse possessor’s knowledge of intrusion onto the property of another and intent to take it.

Easements implied by prior use or by necessity

/ Easements, Real Estate Transactions

The Massachusetts Land Court has reaffirmed that easements can be implied from prior use if they were used before severance of the two parcels and are “reasonably necessary” for use of the dominant estate while easements by necessity require the dominant estate to be inaccessible but for the easement. Black v. Klaetke, 20 LCR 120, 2012 Mass. LCR LEXIS 56 (Mass. Land Ct. 2012).

Abutters have standing to challenge neighbor’s compliance with zoning law

/ Zoning

State zoning enabling statutes generally define who has the power to challenge decisions by zoning boards about allowable land uses. Many allow abutters who are specially affected by land uses to challenge the legality of building permits or zoning decisions on the ground that if they are not granted this right, there will be no deterrence to zoning boards who ignore the limits of local zoning regulations. The Massachusetts Land Court affirmed the right of abutters who can show they were affected by neighboring land use to challenge zoning permit decisions as “persons aggrieved” under state statutes. Teti v. Town of Sherborn, 20 LCR 154 (Mass. Land Ct. Feb. 29, 2012).

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