Sixth Amendment right to counsel prohibits state from freezing legitimate assets of a criminal defendant needed to pay for counsel of choice

/ Due Process, Personal Property

The Supreme Court held in Luis v. United States, 136 S.Ct. 1083 (U.S. 2016), that the government may not prevent a criminal defendant from using funds not derived from a crime to pay for counsel of choice. No constitutional issue arose from confiscating the proceeds of a crime but the law in question froze the defendant’s assets to ensure that moneys would be available to pay any eventual fines or penalties. While that was a legitimate government purpose it was not sufficient to justify the imposition on the defendant’s right under the Sixth Amendment to seek assistance of counsel of the defendant’s choice.

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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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Massachusetts courts hostile to easement by necessity doctrine

/ Easements, Real Estate Transactions, Servitudes, Statute of Frauds

In Kitras v. Town of Aquinnah, 49 N.E.3d 198 (Mass. 2016), the Supreme Judicial Court of the Commonwealth of Massachusetts (SJC) refused to recognize easements by necessity for landlocked parcels. Massachusetts accepts the usual presumption that one who creates a landlocked parcel intends to give the owner of the landlocked parcel an easement over remaining land of the grantor to reach a public road. In most states the doctrine is based both on the implied intent of the grantor and public policy considerations that support access to land both to protect the landlocked owner’s right to access his or her land and general welfare considerations of making the land alienable and usable. However, the emerging majority rule seems to be that the touchstone is the intent of the parties and if the parties actually intend to create a landlocked parcel, they will be allowed to do so, and their arrangement will

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Servient estate owner may narrow an easement if this does not impede access to the dominant estate

/ Easements, Real Estate Transactions, Servitudes

The Supreme Judicial Court of the Commonwealth of Massachusetts has held that “an easement… may be modified by the servient land holder so long as the purposes for which the easement was created are not frustrated, and the utility of the easement is not lessened.” Martin v. Simmons Properties, LLC, 2 N.E.3d 886 (Mass. 2014).

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Adverse possession denied when permission was mistakenly sought from non-owner

/ Adverse Possession

The Wisconsin Supreme Court held in Wilcox v. Estate of Hines, 849 N.W.2d 280 (Wis. 2014), that owners who thought a strip of land was not theirs but sought permission from someone who was not the true owner cannot establish adversity even though they occupied the property without permission of the actual owner.

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Federal Circuit holds that first amendment protects right to use disparaging trademarks

/ Free Speech, Intellectual Property, Trademarks

In In re Tam, 808 F.3d 1321 (Fed. Cir. 2015), the Federal Circuit held the government could not withhold trademark registration because the name was disparaging. In re Tam involved a band called The Slants and the Patent and Trademark Office had determined that the name represented a racial slur that was disparaging to people of Asian descent and thus could not be registered as a trademark under the Lanham Act, and its ruling was upheld by the federal District Court. Band leader Simon Shiao Tam had argued that he was trying to reclaim the word just as the previously derogatory word “queer” had been reclaimed by LGBTQ persons. The Federal Circuit reversed the trial court’s ruling, finding Tam’s expressive speech to be protected by the first amendment even if the name was disparaging and its use a violation of the Lanham Act. The court did not address the question of how to deal

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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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Court refuses to allow emotional damages for negligent killing of a pet

/ Personal Property

If someone negligently kills someone else’s pet, courts generally limit damages to the market value of the animal and do not allow damages to be assessed for loss of companionship even though this amount does not adequately account for the emotional loss. In Strickland v. Medlen, 397 S.2d 3d 184 (Tex. 2013), a dog escaped the family’s backyard and was picked up by the animal control officials. When the owner went to pick up the dog, he did not have enough money to pay the required fees. Although the shelter tagged the dog to alert workers that the owner was coming back to retrieve the dog, a shelter worker mistakenly put the dog to sleep. The court held that emotional distress damages are not available for the negligent destruction of a dog even though Texas does allow such damages for the loss of a family heirloom. The court noted that loss of

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Publicity rights limited by free speech guarantees

/ Free Speech, Intellectual Property

In the well-known case of Martin Luther King, Jr. Center for Social Change v. American Heritage Products, 296 S.E.2d 697 (Ga. 1982), plaintiffs Coretta Scott King, administrator of Dr. King’s estate and Martin Luther King, Jr. Center for Social Change, and Motown Records, an assignee of the rights to several of Dr. King’s recorded speeches, sued defendants to stop them from manufacturing and selling plastic busts of Dr. Martin Luther King, Jr. The Georgia Supreme Court recognized a “celebrity’s right to the exclusive use of his or her name and likeness” and rejected defendant’s contention that the First Amendment protected the right to manufacture and sell busts of public figures. In contrast, the Sixth Circuit held in ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003), that the First Amendment protected an artist’s right to sell prints of his painting that depicted Tiger Woods’s victory at the 1997 Masters Tournament. In a similar

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High-rise apartment building held to be a private nuisance

/ Nuisance, Real Estate Transactions

In 1922, the U.S. Supreme Court upheld the power of municipalities to enact zoning laws that limit land to residential use and even to single-family homes. Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). The Euclid decision suggested that apartment buildings might constitute nuisances and destroy the “residential character” of a neighborhood. Id. at 394–395. Is that a legitimate way to characterize apartment buildings and/or the people who live in them? In the 2014 case of Loughhead v. 1717 Bissonnet, LLC, 2014 WL 8774060 (Tex. Dist. Ct. 2014), final judgment at 2014 WL 8774079 (Tex. Dist. Ct. 2014), a Texas court actually found a proposed high rise building in the City of Houston, Texas, to be a nuisance. Houston is unusual in the United States because it lacks a comprehensive zoning law. The proposed structure would have been 21 stories tall and contain 228 residential units along with commercial development. The judge upheld a jury verdict that

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