Another N.Y. court refuses to grant a foreclosure when the bank failed to follow strict procedures to prove it owned the note

/ Mortgages

Another judge has refused to grant a foreclosure when  the bank could not prove that it validly acquired the mortgage by assignment from the original mortgagee. Deutsche Bank Nat. Trust Co. v. McRae, 894 N.Y.S.2d 720 (Sup. Ct. 2010). The court emphasized that foreclosure actions can only be brought by those who have title when the action is commenced and that mortgages can be assigned in two ways—by delivery of the note and mortgage by the assignor to the assignee with the intent to assign or by a written instrument of  assignment. The written assignment in this case was insufficient because it assigned the mortgage but not the note (the underlying contractual obligation). The plaintiff sought to introduce evidence of a note that was endorsed by the assignor with notice of assignment. However, the assignment was not dated and conflicted with the unsigned note attached to the plaintiff’s foreclosure  complaint, leading …

Another N.Y. court refuses to grant a foreclosure when the bank failed to follow strict procedures to prove it owned the note Read More »

Craigslist seeks to prevent discriminatory housing ads

/ Antidiscrimination Law, Fair Housing Act, Sexual Orientation

Craigslist.org now is seeking to prevent discriminatory housing ads (including roommate ads) on its website by posting the following message before one is allowed to fill out a classified housing advertisement: “Stating a discriminatory preference in a housing post is illegal, is prohibited on craigslist, and can be expensive:  you can be fined more than $10,000 for each discriminatory ad, plus damages in court, plus loss of license if you are a professional. Avoid phrases which could be interpreted as discriminating by race/color/origin (e.g. ‘hispanic area’), religion (e.g. ‘christian home’), age / familial status (e.g. ‘no kids’), disability, sexual orientation, or source of income. The words you choose can cost you – get the facts and avoid being prosecuted under fair housing law.”

Same-sex marriage in the District of Columbia

/ Marital Property, Sexual Orientation

Beginning March 4, 2010, same-sex couples may apply for a marriage license in Washington, D.C. and get married after the requisite waiting period. read article. The D.C. City Council passed the Religious Freedom and Civil Marriage Equality Amendment Act which allows same-sex marriage. See D. C. Act 18–248; 57 D. C. Reg. 27 (Jan. 1, 2010). In addition, the Attorney General of Maryland recently announced that Maryland would recognize same-sex marriages performed elsewhere since nothing in Maryland law precluded such recognition. On March 2, 2010, Chief Justice Roberts refused to issue a stay preventing the law from going into effect. Jackson v. District of Columbia Board of Elections and Ethics, No. 09A807, 559 U.S. — (Mar. 2, 2010).

Co-ops accused of racial bias

/ Antidiscrimination Law, Co-Ops, Fair Housing Act, Restraints on Alienation

Two Bronx communities organized as co-ops require references from three co-op members in order to buy units. After using testers, the Fair Housing Justice Center has filed a lawsuit arguing that this requirement has a discriminatory effect when existing co-op members are overwhelmingly white and when the requirement was not consistently applied. Read article.

Court reaffirms that appurtenant easements cannot be severed from the dominant estate

/ Servitudes

A court reaffirmed a traditional rule of property law in a little litigated issue, holding that an appurtenant easement attached to a dominant estate and intended to benefit the owner of that land cannot be severed and transferred to someone who is not an owner of property intended to be benefited by the easement. Rosen v. Keeler, 2010 WL 288997  (N.J. Super. Ct. App. Div. 2010). The case is significant because recent changes in real property law have increased the powers of owners to invent new kinds of property rights and to  disentangle the strands in the bundle of rights that goes along with ownership. This ruling reaffirms the traditional view that certain packages of rights must go together and cannot be disaggregated among multiple  owners. See article.

Third Circuit allows trespass suit against Google

/ Trespass

The Third Circuit allowed Pittsburgh couple Aaron and Christine Boring to proceed with their trespass suit against Google brought after a Google employee entered their land despite a “No Trespassing” sign to take pictures of their house and pool for use on Google Maps street view. Boring v. Google Inc., 2010 WL 318281 (3d Cir. 2010). The trial court had thrown out the trespass claim because the Borings had not alleged any damage from the trespass but the Third Circuit held that Pennsylvania law (like the law elsewhere) does not require proof of damage to find a trespass. Any unauthorized entry onto another’s land constitutes a trespass unless privileged. See article. On remand, if the trespass is proved factually, the land owners would be entitled at least to nominal damages, perhaps of $1. This would obviously not deter any business from trespassing unless it would be hurt by adverse publicity from such trespasses. The …

Third Circuit allows trespass suit against Google Read More »

New York courts grapple with public use issue

/ Takings

In a split 3-2 decision, Kaur v. N. Y. State Urb. Dev. Corp., 2009 WL 4348472, (N.Y. App. Div. Dec. 3, 2009), an appellate court in New York found a defective process of determining that a neighborhood was blighted and thus the taking was for the private purpose of helping Columbia University rather than the public purpose of redeveloping a blighted neighborhood. read article. This occurred only a couple of weeks after New York’s high court, the Court of Appeals, held in Goldstein v. N.Y. State Urb. Dev. Corp., 2009 WL 4030939 (N.Y. Nov. 24, 2009), strongly reaffirmed (in a 6-1 decision) that property can be taken for economic development purposes under the state constitution to remove urban blight and that courts should generally defer to legislative determinations of when blight exists. read article

Two Circuits allow global warming lawsuits against power companies

/ Environmental Law, Nuisance, Tribal Property

A federal court in California refused to allow the Native Village of Kivalina to sue 24 energy and utility companies for causing global warming and causing environmental changes that may well require the entire village to relocate. The court held, in Native Village of Kivalina v. Exxon Mobil Corp., 2009 WL 3326113 (N.D. Cal. 2009), that the question was nonjusticiable because it was impossible to prove causation. However, both the Second and Fifth Circuits have recently allowed cases to proceed which claim that defendants contributed to global warming and thus caused a public nuisance and/or violated the plaintiffs’ property rights protected by a variety of doctrines, including trespass, negligence, and private nuisance. See Comer v. Murphy Oil USA, 2009 WL 3321493 (5th Cir. 2009); Connecticut v. American Electric Power Co., Inc., 582 F.3d 309 (2nd Cir. 2009).

Scroll to Top