Same-sex marriages resume in California

/ Antidiscrimination Law, Marital Property, Sexual Orientation

In 2008, by a 4-3 vote, the Supreme Court of California held that its state constitutional right to equal protection of the laws grants same-sex couples the same right to marry as is enjoyed by opposite-sex couples, using strict scrutiny to come to this conclusion. In re Marriage Cases, 183 P.2d 384 (Cal. 2008). The court held that the right to marry is a basic civil right whose denial impinges upon same-sex couples’ fundamental privacy interests in having official family relationships accorded equal respect and dignity and that no compelling state interest justified the differential treatment of same-sex and opposite-sex couples. It also ruled that existing statutory provisions recognizing civil union or domestic partnership arrangements for same-sex couples were not equivalent to laws recognizing opposite-sex civil marriages. The California decision was overturned on November 4, 2008, when California voters approved Proposition 8 amending the California Constitution to provide that “[o]nly marriage between […]

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More states recognize same-sex marriage

/ Antidiscrimination Law, Marital Property, Sexual Orientation, Wills and Inheritance

Within the last month or so, new states have recognized same-sex marriage. They are Delaware, Rhode Island, and Minnesota. All did so legislatively. Del. Code, tit. 13, §§101 to 122, as amended by 2013 Del. HB 75 (May 8, 2013); R.I. Gen. Laws §§15-1-1 to 15-1-5, as amended by 2013 R.I. Pub. Laws 4 (2013 R.I. HB 5015); Minn. Stat. §§517.01 to 517.09, as amended by 2013 Minn. Sess. Law Serv., ch. 74 (H.F. 1054) (May 14, 2013). Internationally, recent additions to the list include France, New Zealand, and Uruguay. As of May 17, 2013, there are now thirteen jurisdictions (12 states and the District of Columbia) that recognize same -sex marriage in the U.S. They include  Connecticut, Delaware, the District of Columbia, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington. Three American Indian nations also recognize same-sex marriage, including the Coquille Indian Tribe, the Little Traverse Bay Bands of Odawa Indians, and

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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.

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No nuisance claim without physical invasion or harm

/ Environmental Law, Nuisance

The Maryland Court of Appeals ruled in Exxon Mobil Corp. v. Albright, 67 A.3d 1061 (Md. 2013) that property owners near a gas station where 26,000 gallons of gasoline spilled from an underground tank could not sue for nuisance when their wells have not yet been contaminated. The neighbors were not allowed to sue for emotional damages, for reduction of the fair market value of their property or for future costs of medical monitoring. Most courts reach the same result although a few courts have allowed damages in such cases for nearby properties when the reduction in fair market value is substantial.

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First Circuit allows MERS to assign mortgages to the mortgage holder

/ Consumer Protection, Mortgages, Real Estate Transactions, Title Issues

State courts have disagreed about whether MERS (Mortgage Electronic Registration Systems) has standing to foreclose on property or to assign whatever interest it has in the mortgage to the bank that holds the mortgage currently so that that bank can bring foreclosure proceedings. Some courts have held that MERS has no property interest in the mortgage but is a mere agent for the mortgage owner so it cannot bring foreclosure proceedings itself or assign the mortgage to anyone else.   Bain v. Metropolitan Mortgage Group, Inc., 285 P.3d 34, 36–37 (Wash. 2012) (because MERS does not hold the note, it can neither initiate nonjudicial foreclosure proceedings not assign an interest in the note to a trustee who can do so). But others have held that MERS may initiate foreclosure proceedings in its own name and/or assign the mortgage to someone else.  Gomes v. Countrywide Home Loans Inc., 121 Cal. Rptr. 3d

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HUD issues final regulations defining disparate impact claims under the Fair Housing Act

/ Antidiscrimination Law, Fair Housing Act, Real Estate Transactions

The Department of Housing & Urban Development (HUD) has issued final regulations defining the standards to make a claim that a neutral policy has a disparate impact on a protected group in a manner that constitutes unlawful discrimination under the federal Fair Housing Act, 42 U.S.C. §3601 et seq. The regulations are at 24 C.F.R. 100.500 and can be found here. The rule affirms that disparate impact claims are available under the Fair Housing Act and identifies an approach to proving them to respond to the variation that exists among Circuits on what the legal test is for disparate impact in this area. Here is the test: 1. Plaintiff must show a discriminatory effect either because defendant’s policies or actions result in a disparate impact on a protected group or because those policies or actions promote segregation. 2. Defendant then has the burden to showthat  its practice is necessary to achieve

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Homeowners’ Association dues lost because the property was taken by eminent domain are held not to be compensable under the takings clause

/ Estates and Future Interests, Servitudes, Takings

When a government took 14 units from a homeowners association by eminent domain, the remaining owners lost the dues and assessments that those owners would have contributed to the homeowners association. However, the Fifth Circuit has ruled that those lost assessments represent mere “contractual rights” that are not compensable under the takings clause as lost property rights even though they ran with the land. United States v. 0.073 Acres of Land, — F.3d —, 2013 WL 322242 (5th Cir. 2013). The court looked to Louisiana law to determine whether the assessments should be considered to be “property” rights and found that they were. However, it interpreted the case of United States v. General Motors Corp., 323 U.S. 373 (1945) to mean that loss of future profits from land is not compensable. The court acknowledged that it was adopting a minority view and that most courts have held that covenants are property

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Foreclosure denied when the lender obtained assignment of the note and mortgage after filing the foreclosure action

/ Consumer Protection, Mortgages, Real Estate Transactions, Title Issues

In Federal Home Loan Mortgage Corp. v. Schwartzwald, 2012 Ohio 5017, 2012 Ohio LEXIS 2628 (Ohio 2012), the Supreme Court of Ohio joined other courts that have refused to allow banks to foreclose if they cannot prove by written evidence at the time of foreclosure that they have a legal right to foreclose. In this case, Federal Home Loan commenced a foreclosure action before it obtained an assignment of the promissory note and mortgage securing the loan, although it attempted to “cure” that defect by obtaining the assignment later. The Supreme Court of Ohio reversed lower court rulings that had decided that the cure would allow the foreclosure to proceed; instead, it held that state law required lawful standing at the time the foreclosure action was brought. It cited cases from other states that denied standing to MERS (Mortgage Electronic Registration Systems) because it did not possess any interest in the note

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Protecting surrogate mother’s right to change her mind, NJ high court denies infertile wife’s claim to be listed as the parent at birth of a child born to another woman artificially inseminated with the husband’s sperm

/ Marital Property

An evenly-divided Supreme Court of New Jersey affirmed a lower court’s opinion that protected the potential parental rights of a surrogate mother who had been implanted with the sperm of a man and the egg of an anonymous donor and denying the right of the man’s wife to have her name placed on the birth certificate with her husband’s at the time of birth of the child even though it was contingent on the surrogate mother’s right to change her mind up to 72 hours after the birth of the child. In re T.J.S., 2012 WL 5233616 (N.J. 2012), aff’g In re T.J.S., 16 A.3d 386 (N.J. Super. Ct. App. Div. 2011). The state statute affirms the potential parental rights of the sperm donor and the biological mother who gives birth to the child, as well as the egg donor. The statute protects the rights of the biological mother to retain parental rights

Protecting surrogate mother’s right to change her mind, NJ high court denies infertile wife’s claim to be listed as the parent at birth of a child born to another woman artificially inseminated with the husband’s sperm Read More »

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