Trespass

9th Circuit holds that the Constitution prohibits punishing homeless people for sleeping outdoors when there is no alternative

/ Homelessness, Trespass

The Eighth Amendment’s prohibition on cruel and unusual punishment prevents a city from imposing criminal penalties on homeless persons when they have no legal alternative alternative. Martin v. City of Boise, 2019 U.S. App. LEXIS 9453 (9th Cir. 2019). The City of Boise had two municipal ordinances – disorderly conduct and anticamping laws – that prohibited sleeping in parks. After being convicted for violating those laws, homeless persons challenged them because there were not enough shelter beds for everyone and they had no other place to sleep. The city police responded by issue a “Special Order” prohibiting enforcement of either ordinance when none of the three existing shelters had “an available overnight space.” However, the court found evidence that the police enforced the ordinances when shelter space was unavailable. Citing Robinson v. California, 370 U.S. 660 (1962), Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006), Pottinger v. …

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California beachfront owner temporarily denied power to place a gate limiting public access to the beach

/ Easements, Real Estate Transactions, Takings, Trespass

The Supreme denied certiorari from a California court that interpreted California statutes to ensure public access to the beach and that prohibited a beachfront owner from installing a gate to prevent such public access. Surfrider Foundation v. Martins Beach 1, LLC,221 Cal.Rptr.3d 382 (Ct. App. 2017). The court did not rule on the owner’s claim that the state law requiring him to allow access across his property effected a taking of property without just compensation. It found the regulation to be temporary since state law merely required the owner to seek a permit before closing access to the beach when permissive access had previously been given. It did not consider the order to allow access to constitute a temporary taking since it preserved the status quo before the owner’s action (installation of the gate) that triggered the state permitting requirement.

Courts continue to get property law wrong when trying to apply it to the Fourth Amendment

/ Fourth Amendment, Personal Property, Trespass

As happened in the Supreme Court cases of Georgia v. Randolph, 547 U.S. 103 (2006) and United States v. Jones, 565 U.S. 400 (2012), the Sixth Circuit has used property law concepts to interpret the Fourth Amendment while misunderstanding what the property laws in force. US v. Jones held that the fourth amendment was violated when police put a tracking device on a car because that would have been a trespass to chattels. Most states, however, do not recognize a trespass to personal property unless it is damaged or commandeered. In an extension of Jones,the Sixth Circuit found a violation of car owners’ property rights (and a violation of the fourth amendment) when parking attendants drew chalk lines on car tires to keep track of how long they had been there for the purpose of parking laws. Taylor v. City of Saginaw, 922 F.3d 328 (6th Cir. 2019). Chalk lines wash off …

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No claim against neighbor for damage caused by overhanging healthy tree

/ Nuisance, Trespass

The Massachusetts Supreme Judicial Court has reaffirmed the “Massachusetts rule” that owners cannot sue their neighbors for any damage caused by an overhanging healthy tree. Shiel v. Rowell, 101 N.E.3d 290 (Mass. 2018). The remedy is for the owner to trim the branches that encroach on his property before they cause damage. In upholding the established rule, the court rejected the “Hawaii rule” which imposes liability on the owner of the tree if it causes harm to neighboring property. See Whitesell v. Houlton, 632 P.2d 1077 (Haw. 1981). Note that the Massachusetts rule does impose an obligation on owners to remove unhealthy trees and imposes liability for any harms to neighbors caused by such trees.

Tree may be removed by owner of property where it first grew even if it grew to encroach on neighboring land and the neighboring owner does not want it removed

/ Adverse Possession, Concurrent or Common Ownership, Easements, Trespass

The Colorado Supreme Court has held that an owner may remove a tree on her own land even if it has grown over the borderline onto neighboring land even if the neighboring owner objects to removal of the tree. Love v. Klosky,2018 CO 20, 413 P.3d 1267 (Colo. 2018). In contrast, a border tree that was planted on the border itself becomes the joint property of both neighbors and cannot be removed with the consent of both of them.

Can an owner or inhabitant of real property give police the right to search property when a co-owner or coinhabitant objects?

/ Concurrent or Common Ownership, Estates and Future Interests, Fourth Amendment, Leaseholds, Marital Property, Trespass

The Appeals Court of Massachusetts held that the police could search a closed suitcase in a common closet of a bedroom when given permission to do so by the defendant’s coinhabitant. Commonwealth v. Hernandez,93 Mass. App. Ct. 172, 2018 Mass. App. LEXIS 48 (Mass. App. Ct. 2018). This ruling was based on traditional rules of property law that give tenants in common rights of access to the property they both own. The court noted that any coinhabitant had the right to consent to a search of her home, her bedroom, and her closet because these were areas where both inhabitants shared joint access or control. The Supreme Court reached the opposite conclusion in the case of Georgia v. Randolph,547 U.S. 103 (2006) when it held that the police could not enter property owned by a married couple when one (but not the other) objected to entry. The Massachusetts case is consistent with …

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Expectation of privacy voids government search of car in driveway without a warrant but not if parked in shared lot

/ Fourth Amendment, Trespass

The Supreme Court held that the Fourth Amendment precludes search of a car parked in the driveway to a home without a warrant in Collins v. Virginia,138 S. Ct. 1663 (U.S. 2018), while a number of other courts have held that there is no such expectation of privacy for cars parked in shared lots. United States v. Jones,2018 U.S. App. LEXIS 16409, 2018 WL 3028685 (2d Cir. 2018); State v. Dumstrey,2016 WI 3, 873 N.W.2d 502 (Wis. 2016).

Court wrestles with the question of whether use of a pavement area without permission creates a prescriptive easement or adverse possession

/ Adverse Possession, Easements, Real Estate Transactions, Servitudes, Trespass

When an owner uses a driveway or pavement area owned by a neighbor, and does with openly and without permission for the statutory period, does the owner get a prescriptive easement to use the area for the specific purposes to which the property was devoted or does the owner acquire full title to the area by adverse possession? The problem arises because an owner who parks a car on a driveway that encroaches on neighboring land may be viewed as undertaking a limited use of the land (use for parking purposes) or may be viewed as acting as an owner with full control of the property being used. Often the question will turn on whether the use of the area was exclusive, i.e., whether the owner of record title was excluded from the property. If the record owner was excluded, adverse possession is likely to be awarded. If the parties …

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Oregon Appeals Court affirms application of state public accommodations law to cake shop that refused to sell a wedding cake to a same-sex couple

/ Antidiscrimination Law, Consumer Protection, Sexual Orientation, Trespass

In Klein v. Or. Bureau of Labor & Indus., 2017 Ore.App. LEXIS 1598 (2017), the Court of Appeals of Oregon affirmed an administrative finding that Sweetcakes by Melissa violated the state public accommodations law when it refused to sell a wedding cake to a same-sex couple. The case is similar to the Masterpiece Cakeshop case currently being considered by the US Supreme Court because the cake shop based its claim on the first amendment’s protection of free speech (as well as a claim of religious freedom).  The owner gave religious reasons for denying service, quoting Leviticus and calling the customers “an abomination.” The court rejected the owner’s argument that the refusal to serve was “on account of” the owner’s religious convictions rather than on account of sexual orientation. It also rejected the argument that the refusal to serve was based on the “conduct” of getting married rather than the “status” of sexual …

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Appurtenant easements cannot be used to access after-acquired land next to the dominant estate

/ Easements, Servitudes, Trespass

The Massachusetts Land Court has reaffirmed and applied the traditional rule that an appurtenant easement cannot be used to access after-acquired property next to the dominant estate. Kent v. Roma III, Ltd., 2016 WL 6908191 (Mass. Land Ct. 2016). The court noted that the Restatement (Third) of Property (Servitudes) §4.11, cmt. b suggests that in exceptional cases, damages might be awarded rather than injunctive relief and use of the easement authorized upon payment of those damages, but no facts warranted an exception and a bright line rule was viewed as predictable and as a way to avoid lawsuits to determine whether use of the easement to access after-acquired land imposed a “burden” on the servient estate.

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