On September 24, 2009, the Illinois Supreme Court upheld the provisions of a will disinheriting the decedent’s grandchildren for marrying non-Jews. In re Estate of Max Feinberg, 2009 WL 3063395 (Ill. 2009).
A judge in Texas has allowed a couple married in Massachusetts to get divorced in Texas even though Texas law does not recognize the validity of same-sex marriages. The couple was married in Massachusetts but then moved to Texas when one of them was transferred by his company. They decided to divorce after moving to Texas. If the Texas courts cannot grant the divorce, then one of them would have to move back to Massachusetts and live there for a full year before a divorce could be granted. If they want a Massachusetts court to order equitable distribution of the property acquired during the marriage, both would have to move back to Massachusetts. To avoid this result, Texas judge Tena Callahan ruled that it violated the equal protection clause for Texas not to recognize the validity of the Massachusetts marriage. The Texas attorney general has vowed to appeal to overturn …
Does a same-sex couple have to move back to Massachusetts to get divorced? Read More »
New York substantially changed its adverse possession law in 2008, effectively abolishing adverse possession in most border dispute cases. The law allows an adverse possessor to acquire property by building a permanent structure that encroaches on land owned by another but denies adverse possession by deeming “permissive and non-adverse” what the statute calls “de minimums non-structural encroachments” such as lawn mowing, plantings, fences and sheds. N.Y. Real Prop. Acts §543.
In Commonwealth v. Fremont Investment & Loan, 897 N.E.2d 548 (Mass. 2008), the highest state court in Massachusetts allowed the Attorney General to move forward on a claim that adjustable rate mortgages violated the state consumer protection act as “unfair or deceptive” practices when the borrowers’ incomes were not high even to allow them to afford to pay the higher interest rates. Granting mortgages on the assumption that the borrower would refinance at that point or the lender would foreclose assumed that the lender was entitled to base the security for the loan on the projected increase in market value of the collateral rather than the borrower’s ability to pay. The court allowed the claim to go forward even though the loans at issue did not constitute predatory loans as defined by state law.
Justice Arthur Sacks of the New York Supreme (trial) Court dismisses foreclosure actions when the mortgagee fails to prove ownership of the mortgage or has otherwise failed to comply with the formalities of the recording, property transfer, and foreclosure process as required by state law. read article
Hawai’i came close to recognizing same-sex marriages in a 1993 decision called Baehr v. Lewin, 852 P.2d 44, 59 (Haw. 1993), in which the court held that denying individuals the freedom to marry others of the same sex presumptively constituted sex discrimination in violation of the equal protection clause of the Hawai’i Constitution. However, that route is now closed by a state constitutional amendment. Haw. Const. art. 1, §23. A similar decision in Alaska, Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super. Ct. 1998), was similarly preempted by constitutional amendment. S.J. Res. 42, 20th Leg., 2d Legis. Sess. (Alaska 1998) (passed Nov. 3, 1998). The Supreme Court of Vermont held, in Baker v. State of Vermont, 744 A.2d 864 (Vt. 1999), that the “common benefits” provision of the Vermont Constitution requires the state to grant same-sex couples the legal incidents of marriage, whether or not the state …
A Connecticut trial court held a right of first refusal invalid as an unreasonable restraint on alienation when it could be exercised either by the homeowners association or by any individual homeowner when there was no mechanism to determine who could exercise the right if more than one person sought to buy the property. Gilbert v. Beaver Dam Ass’n of Stratford, 2002 Conn. Super. LEXIS 2765 (Super Ct. 2002).
Another time a cloth-weaver came to live in a house next to Sandro [Boticcelli’s], and erected no fewer than eight looms, which, when at work, not only deafened poor Sandro with the noise of the treadles and the movement of the frames, but shook his whole house, the walls of which were no stronger than they should be, so that what with the one thing and the other he could not work or even stay home. Time after time he besought his neighbor to put an end to this annoyance, but the other said that he both would and could do what he pleased in his own house; whereupon Sandro, in disdain, balanced on the top of his own wall, which was higher than his neighbor’s and not very strong, an enormous stone, more than enough to fill a wagon, which threatened to fall at the slightest shaking of the …
A property story from the painter Sandro Botticelli Read More »
Millions of mortgages are recorded in the name of “MERS” – Mortgage Electronic Registration System – which holds mortgages as a “nominee” or stand-in for the real owner of the mortgage. MERS was created to make it easier to transfer mortgages electronically on a central computer system without having to re-record the mortgage. This was useful for mortgages that were securitized and resold many times but some courts are beginning to find the system inconsistent with recording requirements. One court in Kansas has denied MERS standing to receive notice of a foreclosure on the ground that it does not own the mortgage and is not the real party in interest in the transaction. Landmark National Bank v. Kesler, 2009 WL 2633640 (Kan. Ct. App. 2009). read opinion This strategy has been used to protect homeowners from having their property foreclosed and it may undermine the business model relied on by MERS. read …
MERS denied standing to receive notice of foreclosure Read More »
The Restatement (Third), § 6.21 provides: “A developer may not exercise a power to amend or modify the declaration in a way that would materially change the character of the development or the burdens on the existing community members unless the declaration fairly apprises purchasers that the power could be used for the kind of change proposed.” In North Country Villas Homeowners Ass’n v. Kokenge, 163 P.3d 1247 (Kan. Ct. App. 2007), the court adopted this Restatement rule, holding that a developer’s power to “amend” the covenants limiting land to single-family or duplex homes did not include the power to “revoke” them entirely by building four-unit housing.
