Trespass

New Jersey Supreme Court confirms state constitution’s grant of free speech rights to enable a coop owner to disseminate written information to co-owners

/ Condominiums and Homeowners Associations, Consumer Protection, Free Speech, Trespass

While the US Constitution’s free speech provisions in the first amendment apply only to state action, both California and New Jersey have interpreted their state constitutions to grant individuals free speech rights in some cases in relation to private parties. In both states, citizens have the right to distribute leaflets in shopping centers. In Dublirer v. 2000 Linwood Avenue Owners, Inc., 2014 WL 6777311 (N.J. 2014), a resident wanted to run for a seat on the Board of Directors of the coop and sought to distribute materials relevant to his campaign and he was prevented from doing so by the coop board. The Supreme Court of New Jersey held that the coop rule banning soliciting and distributing written materials in the building was unreasonable and a violation of the resident’s state constitutional free speech rights. The ruling reaffirmed and expanded on the rulings in earlier cases that protected free speech rights of owners in common-interest communities …

New Jersey Supreme Court confirms state constitution’s grant of free speech rights to enable a coop owner to disseminate written information to co-owners Read More »

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 …

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

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.

Patron can sue for ADA violations by a diner even if he never went there

/ Antidiscrimination Law, Trespass

A patron who knew he could not enter a diner because the diner did not have wheelchair access could sue the diner and its landlord for violating the Americans with Disabilities Act even though he never went to the diner and tried to get in. Kreisler v. Second Ave. Diner Corp., 2013 WL 5340465 (2d Cir. 2013). The mere fact that he was deterred from going to the diner is enough to give him standing to bring a claim for violating the public accommodation provisions of the ADA. Moreover, once he had standing to sue for one violation, he could sue the diner for other violations of the statute that relate to his particular disability even if he has never been inside.

Woman with muscular dystrophy may use Segway in Walt Disney World unless such use can be demonstrated to be unsafe

/ Antidiscrimination Law, Trespass

The Ninth Circuit held that the Americans with Disabilities Act grants a woman the right to use a Segway in Walt Disney World unless the park owners can show that its use is dangerous. Baughman v. Walt Disney World, Inc., 685 F.3d 1131 (9th Cir. 2012). The court found that allowing Segway use might constitute a reasonable modification of the park’s policies that were “necessary” to allow her to enjoy the facilities on an equal basis with others. Such modifications are not required if they cannot be consistent with safety requirements.

Pesticide drift is a nuisance not a trespass

/ Nuisance, Trespass

The Supreme Court of Minnesota held that pesticide drift from one property to another is governed by nuisance law and not trespass law even though it constitutes a physical invasion of particles. Johnson v. Paynesville Farmers Union Cooperative Oil Co., 817 N.W.2d 693 (Minn. 2012). The court held that trespass law protects only the interest in possession while nuisance law protects use and enjoyment, making nuisance the appropriate standard to regulate the problem. Trespass law does not require any proof of harm and the court felt that applying it in this context would require a narrowing principle it was not willing to create.

Landlord’s interference with 12 square feet of space (out of 15,000) is not a partial eviction entitlement tenant to full rent abatement

/ Leaseholds, Trespass

The New York Court of Appeals relaxed a traditional rule of property law by holding that a commercial landlord’s interference with possession of 12 square feet of space out of a total of 15,000 square feet does not constitute a partial actual eviction entitling the tenant to a full rent abatement. Eastside Exhibition Corp. v. 210 East 86th Street Corp., 965 N.E.2d 246 (N.Y. 2012). The court noted that withholding of the entire amount of rent is the proper remedy when there has been a partial eviction by a landlord but a partial eviction will not be found if the landlord’s intrusion is trivial and has no effect on the tenant’s use or enjoyment of the property. In this case, the landlord merely placed cross-bracing between two steel support columns on both of tenant’s floors in a manner that did not affect the tenant’s use or enjoyment of the leased premises. …

Landlord’s interference with 12 square feet of space (out of 15,000) is not a partial eviction entitlement tenant to full rent abatement Read More »

Court holds that beach rights can be lost through erosion

/ Easements, Title Issues, Trespass, Water Rights

The Supreme Judicial Court of the Commonwealth of Massachusetts has reaffirmed the old rule that property rights can be expanded by slow accretion or diminished through slow erosion when property is located on a stream or the ocean. In White v. Hartigan, 982 N.E.2d 1115 (Mass. 2013), beachfront owners claimed a right to use the beach behind their neighbors house because their deed had given them rights to the beach in 1841. The court disagreed, noting that changing boundaries had placed the plaintiffs’ beach under water and that they had no right to “moveable” boundaries ensuring access to the beach behind their neighbor’s house.

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.

$2 million settlement agreement by landlord & building superintendent for systematic sexual harassment of tenants

/ Antidiscrimination Law, Fair Housing Act, Leaseholds, Trespass

On May 8, 2012, the U.S. Attorney’s office in Manhattan announced a $2 million settlement by a landlord, his building superintendent and the superintendent’s son to pay fines to tenants who were sexually harassed by the superintendent. The building superintendent was a convicted sex offender who served 14 years in prison for molesting or raping 3 girls and a woman before being hired by the landlord to run three buildings. The superintendent would enter women’s apartments while drunk and demand sex, retaliating when he did not get his way. Both the landlord and the superintendent are also barred by the agreement from owning or managing occupied properties. read article

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