July 2016

Estoppel by deed does not require reliance

The Pennsylvania Supreme Court has reaffirmed and applied the doctrine of estoppel by deed in the case of Shedden v. Anadarko E. & P. Co., L.P, 136 A.3d 485 (Pa. 2016) and distinguished it from the doctrine of equitable estoppel. Equitable estoppel "recognizes that an informal promise implied by one's words, deeds or representations which leads another to rely...

Informal border change by acquiescence

The Utah Supreme Court has affirmed and applied the doctrine of "boundary by acquiescence" under which a border is set informally when neighbors recognize a line between their properties. Q-2 LLC v. Hughes, 368 P.3d 86 (Utah 2016). The court noted that title shifts at the point when the parties act to satisfy the doctrine not when the border is recognized by a court. Establishment of boundary by acquiescence in Utah requires (1) occupation up to a visible line marked by monuments, fences, or buildings; (2) mutual acquiescence in the line as a boundary; (3) for at least 20 years; (4) by...

Yard maintenance not sufficiently visible for adverse possession

The Nebraska Supreme Court held that operation of a hidden sprinkler system and lawn maintenance were not sufficiently visible or "notorious" to put the record owner on notice of the adverse actions and thus could not ripen into adverse possession. Poullos v. Pine Crest Homes, LLC, 876 N.W.2d 356 (Neb. 2016).

Heirs under intestacy statute include adopted children

In a decision one might think was unnecessary today, the Maine Supreme Judicial Court ruled that the "children" who inherit under state intestacy statutes include adopted children. Fiduciary Trust Co. v. Wheeler, 132 A.3d 1178, 2016 ME 26 (Me. 2016). The issue was raised because an earlier court decision interpreting the decedent's will had held that a separate clause leaving property to the...

State agency owed substantial deference when it exercises its legitimate authority to override local zoning law to enable construction of affordable housing

The Massachusetts Comprehensive Permit Statute, colloquially known as the Anti-Snob Zoning Act, Mass. Gen. Laws ch. 40B, §§20-23, enables developers to file a single comprehensive permit before the local zoning appeals board to construct affordable housing. Municipalities in which less than 10 percent of the housing stock is affordable face a heavy burden of proof to overcome the statutory preference for such housing. The statute delegates authority to a state agency, called the Housing Appeals Committee, that enables it to override local permit denials when necessary to allow affordable...

Legal consequences of the distinction between affirmative easements and restrictive covenants

Massachusetts statutes regulate the enforceability of "covenants" by limiting the circumstances in which they can be enforced, defining when they can be enforced by damages only and not injunctive relief, and subjecting enforcement to a 6 year statute of limitations. Mass. Gen. Laws ch. 184 §23A, §30.

In a recent application of those statutes, the Massachusetts Appeals Court ruled in BP Watertown Retail,...

Washington state law bans mortgage lender from changing locks and barring the borrower from her home after default but before foreclosure

Many mortgage agreements allow the lender to change the locks on the door and take over the property when a borrower-mortgagor defaults or abandons the property; this is intended to prevent the property from becoming dilapidated or taken over by squatters. However, some banks have locked owners out of their homes after they default even if they are still living there and there is no evidence of abandonment or harm to the premises.

The Washington Supreme Court outlawed this practice in ...

Texas beachfront property rights after hurricanes

In general, when property borders change because of gradual accretion or erosion along rivers or oceans, then owners gain or lose land because of those changes. If land is gradually added to an owner’s land by gradual build-up of sand or silt, then the owner’s property increases to that extent; the reverse is also true. But if the border changes suddenly (“avulsion”) then the borders do not change. The courts have generally applied these principles to beachfront property to determine the border between the private property rights of beachfront owners and the land owned by the...

Sixth Amendment right to counsel prohibits state from freezing legitimate assets of a criminal defendant needed to pay for counsel of choice

The Supreme Court held in Luis v. United States, 136 S.Ct. 1083 (U.S. 2016), that the government may not prevent a criminal defendant from using funds not derived from a crime to pay for counsel of choice. No constitutional issue arose from confiscating the proceeds of a crime but the law in question froze the defendant's assets to ensure that moneys would be available to pay any eventual fines or penalties...

Taking of property when an easement is expanded beyond its original scope

In Marvin M. Brandt Revocable Trust v. United States, 134 S.Ct. 1257 (2014), landowners objected when an easement that had been granted for railroad purposes was converted to a trail for public hiking. An easement is a permanent right to use land owned by another for a specific purpose. State law determines how to interpret the scope of the purpose. Some states interpret a general right of way as not only giving the...

Joseph William Singer

Bussey Professor of Law, Harvard Law School