North Carolina limits nuisance suits against pig farmers

/ Nuisance

The North Carolina Farm Act of 2018(Senate Bill 711), requires nuisance claims to be brought within a year of the establishment of a farm use or a “fundamental change” in the farm’s operation. N.C. Gen. Stat. §106-701 to –702. It denies punitive damages unless the farm operator has a criminal conviction or has received a regulatory notice that it violated state farm laws. Anne Blythe, Hog farmers win new protections as lawmakers override Roy Cooper’s veto,News&Observer, June 27, 2018.

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Statutory share statute gives surviving spouse a portion of the estate of the decedent

/ Marital Property, Wills and Inheritance

Applying the terms of a long-existing state statute, the Supreme Judicial Court of the Commonwealth of Massachusetts affirmed that a second spouse could take 1/3 of her deceased husband’s estate when he failed to rewrite his will after his second marriage and his will had left his entire estate to his first wife. Ciani v. MacGrath, 114 N.E.3d 52 (Mass. 2019); Mass. Gen. Laws ch. 191, §15. The court also read the state statute to give the surviving spouse a life estate in the family house rather than just a right to a share of its income.

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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.

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City of Miami has standing to challenge discriminatory mortgage lending policies of banks

/ Antidiscrimination Law, Fair Housing Act

On remand from a Supreme Court ruling that cities can be “aggrieved persons” injured by discriminatory housing practices, Bank of America Corp. v. City of Miami, 137 S.Ct. 1296 (U.S. 2017), the Eleventh Circuit held that the City of Miami had alleged sufficient injury to have standing to bring a Fair Housing Act claim against banks that steered black and Latino borrowers into unaffordable subprime loans that resulted in a wave of foreclosures that affected city finances by decreasing property values and then tax revenues. City of Miami v. Wells Fargo & Co., 2019 WL 1966943 (11th Cir. 2019). The opinion did not find that Miami had proven its claim, just that it had alleged sufficient injury to be able to bring the claim in federal court.

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Supreme Court to decide whether discrimination on the basis of sexual orientation and gender identity are forms of “sex” discrimination under federal laws

/ Antidiscrimination Law, Fair Housing Act, Religious Freedom

The Supreme Court accepted certiorari in three cases (Altitude Express, Inc. v. Zarda, Bostock v. Clayton County, Georgia, and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC) and will determine whether federal employment discrimination laws that ban “sex” discrimination cover discrimination based on sexual orientation and/or gender identity. The rulings in these cases are very likely to apply to the Fair Housing Act. Zarda v. Altitude Express, Inc.,883 F.3d 100 (2d Cir. 2018), cert. granted sub. nom Altitude Express, Inc., v. Zarda, 2019 WL 1756678 (U.S. 2019), held that discrimination based on sexual orientation is a form of sex discrimination both because it is either the sex of the employee or that their potential or actual partners that defines sexual orientation. Bostock v. Clayton County Bd. of Commissioners,723 Fed. Appx. 964 (11th Cir. 2018), cert. granted, 2019 WL 1756677 (U.S. 2019) came to the opposite conclusion. EEOC v. R.G. & G.R. Harris Funeral

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Will devising home to testator’s four children and his widow that allowed her to “remain” in the home “for as long as she desires” gave her a tenancy in common interest with protection from removal by partition

/ Concurrent or Common Ownership, Restraints on Alienation, Wills and Inheritance

In an older case that came to my attention, the Massachusetts Supreme Judicial Court held that a will that gave a widow the right to “remain” in the home “for as long as she desires” did not create a life estate when her interest was shared with the decedent’s four children. Hershman-Tcherepnin v. Tcherepnin, 891 N.E.2d 194 (Mass. 2008). Rather, the court interpreted the conveyance to create tenancy in common interests shared equally by the five while giving the widow immunity from being forced from the house by partition. Significantly, the court did not consider that restraint on partition to constitute an unreasonable restraint on alienation. However, since she had brought an action to partition the property, she waived the right to be protected from ouster through partition sale.

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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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Place of the injury law applies when conduct in one state causes a nuisance to property in another state

/ Nuisance

In accord with both the traditional and the modern approach to conflict of laws, a federal court held that the law of the place where the property is situated (and where the harm is felt) applies even when the conduct took place in another state. Nnadili v. Chevron USA, Inc., 435 F.Supp.2d 93 (D.D.C. 2006). A gas station owner in Maryland allegedly allowed gasoline to be released from its underground storage tanks which polluted neighboring land in the District of Columbia. The place of injury or the situs of the property are the laws that traditionally apply in this situation whether they help the plaintiff (the landowner) or not. That is likely still true even if the place of conduct finds it to be wrongful since a nuisance only occurs when the land owner suffers substantial and unreasonable interference with the use and enjoyment of the land. In addition, the court

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Supreme Court holds that nonjudicial foreclosure is not “debt collection” under the Fair Debt Collection Practices Act

/ Mortgages, Real Estate Transactions

Obduskey v. McCarthy & Holthus LLP, U.S., 139 S.Ct. 1029 (2019) resolved a conflict among federal courts on the question of whether those who pursue nonjudicial foreclosure of real property are “debt collectors” regulated by the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692a(6). The Court held that they are not and therefore immune for that statute’s regulatory requirements.

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