Property Law Developments—Joseph William Singer

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 wall and to shatter the roof, ceilings, webs, and looms of his neighbor, who, terrified by this danger, ran to Sandro, but was answered in his very own words—namely, that he both could and would do whatever he pleased in his own house. Nor could he get any other answer out of him, so that he was forced to come to a reasonable agreement and to be a good neighbor to Sandro.

Giorgio Vasari, The Lives of the Most Excellent Painters, Sculptors, and Architects 192-192 (Gaston du C. de Vere, trans.) (2006).

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 article

Costco CEO Jim Sinegal complains that it is hard for the company to buy new real estate to open new stores because “in many instances nobody knows who owns the land anymore.” read article

A developer sold properties in a subdivision on the island of Martha’s Vineyard in Massachusetts, after recording a map of the area showing the lots and the streets. Three irregularly-shaped areas that wereabout five times the size of the lots on the map were labeled as”parks” and one was called a “plaza.” Those properties were never developed and remained wooded over the years. The lots were all sold but not in the manner envisioned on the map; many lots were grouped together so that the average parcel is now about the size of the parklots. Fifty years later, an owner of the “plaza” lot sought to sell it to an buyer who wanted to build a single-family home on it. The neighbors sued, arguing that the designation of the property as a plaza meant that they owned an negative easement prohibiting development of the lot for residential purposes and an affirmative easement to use the lot for park purposes. The plaza owner argued that the writing of the word “plaza” on the map was not sufficient to constitute an express oran implied easement limiting the uses to which the property could be put. In addition, the subdivision was created before it was common to create homeowner’s associations, so if the park lots are privately owned but subject to an appurtenant easement in all the neighbors, itis not clear how the parks will be maintained, who would pay for  that maintenance, or how disputes about their use would be resolved. The Appeals Court held that the writing on the map was insufficient to impose an easement on the property but the Supreme Judicial Court reversed.

On remand, the Rhode Island trial court found that development of Palazzolo’s salt marsh land south of a shallow, tidal pond would constitute a public nuisance because it would inhibit the “valuable filtering system regarding water runoff containing pollutants and nitrogen from adjacent land.”  Palazzolo v. State, 2005 WL 1645974, at*3 (R.I. Super. Ct. 2005). The court also found that half of theproperty was below the mean high water line, making it tidal land subject to the public trust doctrine which defines such lands as owned by the public and not subject to private development at all. Finally,the court found that, although one upland site could be developed,almost none lower lots could ever have been profitably developed because of the extraordinary engineering costs involved in draining thesite and preparing the site to support structures. Thus, there was notaking of property.

The Supreme Judicial Court of the Commonwealth of Massachusetts held that it was not a taking to prevent an owner from building a house on a floodplain when construction would exacerbate flooding to neighboring property. Gove v. Zoning Bd. of Appeals of Chatham, 831 N.E.2d 865 (Mass. 2005).

In response to the Kelo decision, almost all states have passed legislation or constitutional amendments that limit the power of municipalities to take property for economic development purposes. Elisabeth Sperow, The Kelo Legacy: Political Accountability, Not Legislation, Is the Cure, 38 McGeorge L. Rev. 405, 418-422 (2007). The legislation limiting eminent domain powers falls into several categories; some states passed laws in just one of these categories and others passed more than one type of limitation. First, some states repudiated Kelo by prohibiting the use of eminent domain to take property from one person to transfer it to another person if the taking is for economic development purposes, such as increased tax revenue or additional jobs. See, e.g., Alaska Stat. §§09.55.240(d), 29.35.030; 735 Ill. Comp. Stat. 30/5-5-5(c); Me. Rev. Stat. tit. 1, § 816; N.H. Rev. Stat. § 162-K:2(IX-a)(b); Vt. Stat. tit. 12, § 1040(a). Second, some states adopted Justice Thomas’s literal approach by prohibiting all takings of property from one private owner for transfer to another unless the property is open for public “use,” meaning public ownership or access. See Fla. Stat. § 73.013; Iowa Code §§6A.21 to 6A.22; N.H. Rev. Stat. § 162-K:2(IX-a)(a); Tenn. Code § 29-17-102(2). Third, many states passed laws prohibiting takings unless the property being taken is “blighted,” raising health or safety concerns. Ala. Code §§ 24-2-2, 24-3-2; Cal. Health & Safety §33030; Iowa Code §§6A.22; Mo. Rev. Stat. § 523.271; Wis. Stat. § 32.03(6). See Centene Plaza Redevelopment Corp. v. Mint Properties, 225 S.W.d3 431 (Mo. 2007) (finding insufficient evidence of blight to justify the taking). Fourth, some states regulate takings by procedural measures designed to increase public participation in the process through more hearings or better public notice or through requirements that the taking authority present evidence sufficient to justify the taking. See 735 Ill. Comp. Stat. 30/5-5-5(d); W. Va. Code § 16-18-6. Fifth, some states require higher compensation than the usual “fair market value” if a person’s home is taken. Ind. Code § 32-24-4.5-8(2)(A)(owner of a residence entitled to 150% of fair market value; owner of a business entitled to “any loss incurred in a trade or business that is attributable to the exercise of eminent domain”).

On Nov. 2, 2004, the voters adopted a state law known as Measure 37 that required compensation when any regulation “restricts the use of real property” and is enacted after an owner or a family member acquires title to land if the regulation “has the effect of reducing the fair market value of property” unless the regulation restricts activities “commonly and historically recognized as public nuisances under common law” or protects “public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations.” Or. Stat. §195:305; Michael C. Blumm & Erik Grafe, Enacting Libertarian Property: Oregon’s Measure 37 and Its Implications, 85 Denv. U. L. Rev. 279 (2007). The measure applied both to statutes and to zoning ordinances. See Or. Stat. §195.305 to 195.314. Because the law applies to any regulations passed after an owner (or a family member) acquired title, present owners may go back to the laws in effect at the time their family first acquired the land – for some families, this may go back to a time before any zoning or environmental laws were in effect. This “inheritance right” would mean that zoning in a particular area would be inconsistent if acquired by different families at different times, making each parcel might be subject to different land use regulations. For this reason – and because it turned out that deregulating neighboring property might lead to a strip mall next to one’s house and even have the effect of reducing the value of one’s home – Measure 37 proved unpopular in various respects and was substantially modified when the Oregon voters passed Measure 49 on Nov. 6, 2007. Measure 49 eliminated the “inheritance right” and restricted Measure 37 claims to laws that restricted restrict residential, farm or forest uses of property, while allowing, without compensation, laws that limit commercial or industrial uses like strip malls and mines. Measure 49 also limited the number of homes that may be built on property freed from regulation by Measure 37. Claimants may build up to three homes if home construction was allowed when they acquired their properties, whether or not the post-acquisition restriction on construction reduced the value of their land; they may build four to ten homes if a post-acquisition regulation reduced their property value; however, they may not build more than three homes on high-value farmlands, forestlands and groundwater-restricted lands. And Measure 49 capped at twenty the number of homes sites any owner may build through Measure 37 waivers of land use laws regardless of the number of property she owns. In 2006, Arizona passed an act similar to Measure 37, known as Proposition 207 or the Private Property Rights Protection Act. Ariz. Stat. §12-1134.

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 limitingland to single-family or  duplex homes did not include the power to “revoke” them entirely by building four-unit housing.

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).

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 chooses to call such relationships “marriages.” Implementing this constitutional mandate, the Vermont legislature passed and the Governor signed a bill allowing “civil unions” but not “marriages” between same-sex partners. See Vt. Stat. tit. 15, §§1201-1206. Although there is no residency requirement to enter a civil union, there is a one-year residency requirement to bring a court action to dissolve a civil union. Connecticut also passed legislation authorizing civil unions for same sex couples. Conn. Pub. Act 05-10 (Jan. 2005), 2005 Ct. S.B. 963, 2005 Conn. Legis. Serv. P.A. 05-10 (S.S.B. 963) (WEST). California and New Jersey passed domestic partnership legislation that allow the creation of legal relationships that entail most but not all the rights and obligations associated with marriage. Cal. Fam. Code §§297–299.6; N.J. Stat. §26:8A–1 to –12. New Jersey subsequently passed a civil union statute after the New Jersey Supreme Court ruled in Lewis v. Harris, 908 A.2d 196 (N.J. 2006), that same-sex partners are constitutionally entitled to the same rights as opposite-sex couples. N.J. Stat. §37:1-28 to 1-36. Civil unions or domestic partnerships in some form for same-sex couples are now recognized in some form in California, the District of Columbia, Hawaii, Maine, Maryland, Oregon, New Hampshire, New Jersey, Vermont and Washington.

On November 18, 2003, the Massachusetts Supreme Judicial Court held in the case of Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2004), that barring individuals from marrying each other solely because they were of the same sex violated the state constitutional guarantees of liberty and equality. Chief Justice Margaret Marshall wrote that the “Massachusetts Constitution affirms the dignity and equality of all individuals” and that “[i]t forbids the creation of second-class citizens.” Id. at 948. See also Opinion of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004) (confirming that granting same-sex couples the right to civil unions but not civil marriage would violate the state constitution because it would confer a kind of second-class status to such couples). The Commonwealth of Massachusetts had defended limiting marriage to male-female couples on the grounds that marriage provided a favorable setting for procreation, that it ensured the optimal setting for child rearing, and that it preserved scarce state resources. The court found none of these goals constitutionally adequate, given the fact that child rearing often occurs outside traditional marriages and that the ability to procreate was never a prerequisite to marriage. It gave the legislature six months to alter the marriage laws in a manner consistent with its opinion. When that did not happen, same-sex couples began marrying in Massachusetts on May 17, 2004.

In 2008, by closely divided 4-3 votes, the Supreme Courts of California and Connecticut held that their state constitutional rights to equal protection of the laws grant same-sex couples the same right to marry as is enjoyed by opposite-sex couples. In re Marriage Cases, 183 P.2d 384 (Cal. 2008); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407 (Conn. 2008). The Connecticut Supreme Court held that legal classifications based on sexual orientation are subject to intermediate scrutiny as a quasi-suspect classification while the California Supreme Court held that they are subject to strict scrutiny. The California court further 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. Both courts ruled that 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. Accord, Opinions of the Justices, 802 N.E.2d 565 (Mass. 2004)(civil unions not equivalent to civil marriages). However, the California decision was overturned on November 4, 2008 when the voters approved Proposition 8 amending the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.” Cal. Const. art. I, § 7.5 (added Nov. 4, 2008). Litigation is proceeding to determine whether this constitutional amendment retroactively invalidates the 18,000 same-sex marriages that took place in California between the time when the marriage right was extended to same-sex couples and the date when the marriage right was revoked. In contrast, same-sex couples began marrying in Connecticut on November 12, 2008.

As of May 14, 2009, in addition to Massachusetts and Connecticut, the states of Iowa, Maine, New Hampshire, and Vermont also now recognize same sex marriage. The Iowa Supreme Court ruled on April 3, 2009 that denial of the right to marry someone of the same sex violated the equal protection clause of the Iowa Constitution. Varnum v. Brien, 2009 WL 874044 (Iowa 2009). And on April, 7, 2009, without prompting by a court, the Vermont legislature passed a statute recognizing same-sex marriage, overriding the Governor’s veto. That law took effect on September 1, 2009. 2009 Vt. Act 3; 2009 Vt. S. 115. Maine Governor John Baldacci signed a same-sex marriage bill passed by the legislature on May 6, 2009,  2009 Me. Laws 82, and Governor John Lynch signed such a law for the state of New Hampshire on June 3, 2009, 2009 N.H. Laws ch. 59. The Maine statute was repudiated and overturned by the voters on Nov. 3, 2009, again making same-sex marriage unlawful in Maine.

Same-sex marriage is recognized in Belgium, Canada, The Netherlands, Norway, South Africa, Sweden, and Spain. Civil partnerships with nearly the same legal status as marriage are recognized in Iceland, and the United Kingdom.

We generally take for granted that owners have the power to exclude non-owners from their land. But at one time in the United States,unenclosed and undeveloped land was open to the public for the purpose of hunting, gathering kindling and berries, and walking. Eric Freyfogle, The Lost Right to Roam, in On Private Property: Finding Common Ground on the Ownership of Land 29 (2007). Today, about half the states still allow hunting on private land unless the owner has posted “no trespassing” signs. Mark R.Sigmon, Hunting and Posting on Private Land in America, 54 Duke L.J. 549(2004). Moreover, owners who wanted to protect their fields from wandering cattle originally had to fence them out; they had no right to complain that a trespass had occurred when cattle wandered onto their property. Nor could railroads insist that cattle owners prevent them from intruding on train tracks. See, e.g., Nashville & Chattanooga Railroad Co. v. Peacock, 25 Ala.229 (1854); Macon & Western Railroad Co. v. Lester, 30 Ga. 911 (1860). Over time, the rules changed to place liability on cattle owners for damage to crops on the neighbors’ property and denied cattle owners remedies if their cattle wandered onto railroad tracks, effectively changing to a fencing-in system by which owners had the duty to keep their cattle from invading neighboring property.

The right to roam has long been recognized in Finland, Norway, and Sweden where anyone is entitled to hike across or camp in the countryside on the property of another as long as one does not disturb the owner. For information on Sweden, see link.  In 2000, the United Kingdom adopted the Countryside and Rights of Way Act 2000, Acts of 2000, ch. 37, guaranteeing public rights of access for recreational purposes (mainly walking) to certain categories of uncultivated countryside in England and Wales, see link. The Ramblers Association “campaigns to increase and protect public access to the countryside,” see link. Scotland adopted a similar act in 2003, see link. See also Jerry L. Anderson, Britain’s Right to Roam: Redefining the Landowner’s Bundle of Sticks, 19 Georgetown Int’l Envtl. L. Rev. 375 (2007).

Consent order issued in the Long Branch case

Rare coins, possibly stolen: does the current possessor have the burden of showing that they were obtained legally or does  the prior owner (the United States) have the burden of showing that they were stolen? A court rules that possession, indeed, is 9/10 of the law.  read article