Trespass

Washington state law bans mortgage lender from changing locks and barring the borrower from her home after default but before foreclosure

/ Mortgages, Real Estate Transactions, Trespass

Many mortgage agreements allow the lender to change the locks on the door and take over the property when a borrower-mortgagor defaults or abandons the property; this is intended to prevent the property from becoming dilapidated or taken over by squatters. However, some banks have locked owners out of their homes after they default even if they are still living there and there is no evidence of abandonment or harm to the premises. The Washington Supreme Court outlawed this practice in  Jordan v. Nationstar Mortg., LLC, 2016 WL 3748978 (Wash. 2016), interpreting a state statute that denies the “owner of the mortgage” the power to “recover possession of the real property, without a foreclosure and sale according to law,” Rev. Code Wash. §7.28.230(1).  The court emphasized that Washington is a lien theory state that leaves title with the homeowner and gives the lender a lien on the property unlike title theory …

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Texas beachfront property rights after hurricanes

/ Easements, Servitudes, Takings, Trespass, Water Rights

In general, when property borders change because of gradual accretion or erosion along rivers or oceans, then owners gain or lose land because of those changes.  If land is gradually added to an owner’s land by gradual build-up of sand or silt, then the owner’s property increases to that extent; the reverse is also true. But if the border changes suddenly (“avulsion”) then the borders do not change. The courts have generally applied these principles to beachfront property to determine the border between the private property rights of beachfront owners and the land owned by the public accessible by anyone. Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 560 U.S. 702 (2010), challenged a common law rule giving the public access to a new sand area on the beach created by government landfill. While refusing to decide whether a judicial common law ruling could be a taking, the Court …

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Homeless persons may raise defense of necessity to criminal trespass charges when entering property in winter to escape bitter cold

/ Homelessness, Trespass

In Commonwealth v. Magadini, Commonwealth v. Magadini, 2015 WL 11070269 (Mass. 2016), the Supreme Judicial Court of Massachusetts ruled that a homeless man who repeatedly entered private property in winter time to escape the cold was entitled to try to convince the jury that necessity justified the entries. David Magadini was homeless and was arrested and convicted seven times for sleeping in the lobby or hallway of commercial buildings that included retail establishments, offices, and apartments. Magadini was a lifelong resident of Great Barrington, Massachusetts, had no home, and had been barred in the past from staying a s homeless shelter in the town. The court held that necessity justifies trespass if (1) he faces a “clear and imminent danger”; (2) a reasonable expectation that the entry on property will abate the danger; (3) he has no “legal alternative which will be effective in abating the danger;” and (4) the “Legislature has not acted …

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Prescriptive easement granted for underground utility lines

/ Easements, Title Issues, Trespass

An easement may be acquired by prescription if one engages in visible (“open and notorious”) use of another’s property in a continuous manner for the period of the statute of limitations. Most state presume such uses are permissive although a growing minority of states presume permission. A crucial requirement is that the use be visible to the servient estate owner. How then could underground utility lines (which are obviously hidden) be sufficiently visible to be acquired by prescription? The Massachusetts Land Court ruled that an owner can acquire an easement by prescription for underground utility lines if physical clues on the land would put a reasonable owner on notice that the lines exist. Dunning v. Larsen, 2015 WL 5920263 (Mass. Land Ct. 2015). In this case the dominant estate owner also was using a road over the servient estate and the utility lines were underneath that road. While the lines themselves …

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Prescriptive easement granted when servient owner knew about but did not interfere with longstanding use of a path to access the waterfront

/ Easements, Servitudes, Trespass

The Massachusetts Land Court granted a prescriptive easement to neighbors who crossed a path on foot or on bicycle to get to the waterfront. Fantoni v. Assad, 2015 Mass. LCR LEXIS 108, 2015 WL 4208469 (Mass. Land Ct. 2015). The owner of the servient estate was aware that neighbors were using the path but did not stop them or object until an altercation broke out when one of the walkers kicked a neighbor’s dog. The court applied the traditional rule presuming the use to be adverse in the absence of any evidence of consent or permission. Once open use is established for the twenty-year statutory purpose, the burden is on the servient owner to show that permission was given for the use. If no permission can be shown by the servient owner, the access is presumed to be adverse. A minority of states now go the other way, presuming that limited use …

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House built on land leased from town is a fixture that belongs to the town at the end of the lease

/ Leaseholds, Real Estate Transactions, Trespass

Seasonal residents built homes on land leased from the town. The Massachusetts Court of Appeals held that the structures were fixtures that belong to the land owner when the leases terminated. Language to the contrary could have been inserted into the leases to classify the homes as personal property that could be removed at the end of the lease. Or the contracts could have granted the tenants an option to buy the land. Because the leases did neither of these things nor made any other arrangements, the common law presumption  prevailed that structures fixed to the land belong to the landowner. Touher v. Town of Essex, 36 N.E.3d 40 (Mass. App. Ct. 2015).

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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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

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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