Groundwater ownership in Texas

/ Environmental Law, Takings, Water Rights

The Texas Supreme Court has issued a somewhat confusing opinion holding that landowners own the groundwater beneath the surface of their land. In Edwards Aquifer Auth. v. Day, No. 08-0964 (Feb.24, 2012), the Texas Supreme Court held that a water regulation commission may have taken an owner’s groundwater rights without just compensation under the Penn Central test when it limited an owner’s groundwater rights to the amounts of water he had historically taken from the land. The court found a state law that defined the amount of groundwater one can withdraw based on historical uses to be a potential taking of property because it believed an owner should not lose the right to withdraw vested rights in groundwater just because the landowner had failed to exercise his right to withdraw it in the past. The court did not overturn the state’s free use or absolute ownership rule for groundwater that allows owners to […]

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Ninth Circuit holds that the Fair Housing Act does not regulate roommate choices or advertisements

/ Antidiscrimination Law, Fair Housing Act

The Ninth Circuit ruled in Fair Housing Council of San Fernando Valley v. Roommate, LLC, 2012 U.S. App. LEXIS 1971 (9th Cir. 2012), that the Fair Housing does not regulate roommate choices or advertisements expressing preferences with respect to roommates, dismissing a claim against Roommate.com, a website that allowed individuals to place ads stating preferences based on sex, sexual orientation, religion, and familial status in connection with roommate searches. The opinion by Judge Alex Kozinski noted that the Fair Housing Act regulates “dwellings” which are defined to include “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families.” 42 U.S.C. §3602(b)(emphasis added by this editor). Despite the “or portion thereof” language, the court noted that the constitution protects rights of intimate association and that it would be unconstitutional to restrict roommate choices so the statute should be read to preclude

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Court holds that an Alabama immigration law violates the Fair Housing Act

/ Antidiscrimination Law, Fair Housing Act

A recent Alabama immigration statute was held preempted by the Fair Housing Act because it required many mobile home owners to pay for a government-issued decal while prohibiting undocumented residents from making payments to government officials. In Central Alabama Fair Housing Center v. Magee, 2011 U.S. Dist. LEXIS 142788 (D. Ala. 2011), the federal District Court judge found a violation of the federal fair housing law because there was sufficient evidence of discriminatory intent by legislators against Latino residents (including legal residents) and because the law had a disparate impact on the Latino population without any legitimate government justification. Because the law made it illegal to drive or possess a mobile home without a decal and registration and because it was illegal for undocumented residents to obtain the decal, the law effectively made such persons homeless. The court found the law preempted by federal immigration laws but also found a fair

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Michigan Supreme Court holds that MERS has standing to foreclose

/ Mortgages, Real Estate Transactions

Contrary to the ruling of some other courts, the Michigan Supreme Court held that MERS (Mortgage Electronic Registration Systems) has standing to foreclose on properties for which it is the record holder of the mortgage even if it does not “own’ the note or the right to moneys under the note. The court held that because MERS is the “holder of the mortgage, MERS owned a security lien on the properties, the continued existence of which was contingent upon the satisfaction of the indebtedness.” The court concluded that the legislature would want the record mortgage holder to have the right to foreclose on the property. The case is Residential Funding Co. v. Saurman, 805 N.W.2d 183 (Mich. 2011).

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United States supports the U.N. Declaration on the Rights of Indigenous Peoples

/ Tribal Property

President Barack Obama announced on December 16, 2010 that the United States would join more than 140 other countries in supporting the United Nations Declaration on the Rights of Indigenous Peoples. That Declaration supports the rights of indigenous peoples to protection of their property, cultures, and religious traditions, as well as guaranteeing self-determination. A detailed statement explaining U.S. support for the Declaration is available here.

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Google trespass on private road to photograph home garners $1 in damages

/ Trespass

A couple complained about the intrusion on their private road by a Google vehicle that photographed their home for Google Streetview. All claims for invasion of privacy and mental distress were dismissed but the trespass claim remained. The Third Circuit held, in Boring v. Google Inc., 362 Fed. Appx. 273 (3d Cir. 2010), that the owners were entitle to nominal damages but not punitive damages, creating a contrast with the well-known case of Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154 (Wis. 1997), which awarded $100,000 in damages for a willful trespass. On remand from the Third Circuit, the trial court signed off on a settlement giving the Borings $1 in damages for trespass. read article

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Oral agreement to buy property does not create a compensable property interest when the property is condemned

/ Real Estate Transactions, Statute of Frauds, Takings

The Nebraska Supreme Court ruled that a potential buyer who had an oral contract to buy real estate did not have a right to just compensation when the property was condemned by public authorities. American Central City, Inc. v. Joint Antelope Valley Auth., 2011 WL 2420787 (Neb. 2011). Although oral agreements to buy property are enforceable despite the statute of frauds in cases of part performance, the Nebraska Supreme Court ruled that the potential buyer’s sole remedy was against the seller of the property rather than the public authorities that took the property by eminent domain.

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