Property Law Developments—Joseph William Singer

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 the appropriate distribution of  family estates but each side appears to view the other’s system as both shocking and unjust. There is an interesting report about the dispute in The Economist magazine. Charlemagne, Where there’s a will there’s a row, The Economist, Oct. 15, 2009.

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.

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).

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

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.

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.

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 the ruling.  read article read 2d article

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