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 …

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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).

Town faces Fair Housing Act lawsuit for moratorium on multi-family housing

/ Antidiscrimination Law, Fair Housing Act

A nonprofit organization named Mano en Mano that sought to build multi-family housing affordable by farm workers was stymied by a change in the town’s zoning law placing a moratorium on all multi-family housing. That change in the law may have been motivated by racially discriminatory motives (by at least some townspeople) against the mostly Latino farm worker population and the nonprofit organization has sued the town of Milbridge, Maine claiming that the change in the law violates the Fair Housing Act. For background on the case see here. Perhaps in response to both the lawsuit and the publicity generated by the moratorium, the town voted on Nov. 16, 2009 to rescind the moratorium, allowing the construction of the housing project to go forward. Read article.

Circuit split over whether Fair Housing Act regulates post-acquisition discrimination

/ Antidiscrimination Law, Fair Housing Act

The federal courts cannot agree on the question of whether the Fair Housing Act (FHA) applies only to discrimination in acquiring or renting property or also applies to post-acquisition discrimination in provision of services. The Fifth Circuit held, in Cox v. Dallas, 430 F.3d 734 (5th Circ. 2005), that African American residents of a neighborhood afflicted with an illegal dump had no remedy against the city that failed to clean it up. The court held that the dump merely made the housing less habitable but did not make it “unavailable” as required by 42 U.S.C. §3604(a) and that the prohibition against discriminatory terms in the sale or rental of a dwelling was inapplicable to city actions when the city was not the seller or renter of the property. For background on the case see here. Similarly, the Seventh Circuit ruled in Halprin v. Prairie Single Family Homes of Dearborn Park Assoc., 388 F.3d 327 (7th …

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Ninth Circuit holds rent control law to constitute an unconstitutional taking of property

/ Takings

The Ninth Circuit ruled in Guggenheim v. Goleta that a rent control law covering mobile homes violated the takings clause because it transferred 90% of the market value of the tenancy from the landlord to the tenants. The court distinguish Yee v. City of Escondido, 503 U.S. 519 (1992) on the ground that Yee held that such a law did not effectuate a “physical taking” but left open the question of whether the law constituted a regulatory taking under the Penn Central ad hoc test.

European Union dispute about inheritance rights of children

/ Wills and Inheritance

Both Great Britain and the United States have long traditions of letting individuals  write wills to determine who owns their property when they die. Those laws are tempered by statutes protecting the rights of spouses to some portion of the decedent’s estate. But both countries allow parents to disinherit their children. See Estate of Max Feinberg, 2009 WL 3063395 (Ill. 2009)(lawful to refuse to leave property to grandchildren because they married non-Jews). However, most other countries in Europe consider it both remarkable and close to barbaric to allow parents to disinherit their children; indeed, in 26 of 27 European Union countries, a large part of the estate of the deceased is reserved in equal shares for surviving children. This difference has erupted into a dramatic conflict as the EU announced rules for distribution of property located in more than one EU country. Not only do the two sides have differing views of …

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Back yard windmill controversy on Cape Cod, Massachusetts

/ Environmental Law, Nuisance, Zoning

The Planning Board in Bourne, Massachusetts rejected an application from a home owner to install a 132-foot tall windmill in her back yard that would have generated enough electricity to power her home. Some people in other towns, including Vineyard Haven, Mass. have succeeded to getting permission to install these devices. read article

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