July 2013

NJ Supreme Court holds that Governor Christie lacked authority to abolish the Council on Affordable Housing (COAH)

In 2011, Governor Chris Christie purported to abolish the Council on Affordable Housing (COAH), an agency set up by legislation and designed to implement the state's Mount Laurel obligations; he planned to transfer its responsibilities to the Department of Community Affairs. The Supreme Court of New Jersey had held in the Mount Laurel litigation that towns were required to implement zoning laws in a manner that made room for all kinds of housing, including housing affordable by low and moderate-income families. S. Burlington County, NAACP v. Twp. of Mount...

New Jersey Supreme Court rules benefits of dunes in protecting homes must be counted against the losses from a partial taking in determining just compensation for a partial taking

The Supreme Court of New Jersey has ruled that benefits to the property from a partial taking must be counted against the losses in determining just compensation. Borough of Harvey Cedars v. Karan, — A.3d —, 2013 WL 3368225 (N.J. 2013). In this case, the borough government took part of the beachfront owner's property to construct dunes to protect the property from erosion or loss during storms. The court held that just compensation for the partial taking "must be based on a consideration of...

South Carolina prohibits transfer fee covenants

South Carolina joins the growing list of jurisdictions that bans transfer fee covenants. 2012 S.C. Acts 106, codified at S.C. Code §27-1-70.

Injunction granted without balancing interests against owner who deliberately violated a covenant

The Rhode Island Supreme Court has held that an injunction can be granted to stop an owner from deliberately and knowingly violating a restrictive covenant. The traditional balancing of interests used to determine whether an injunction is appropriate need not be done when violation of a covenant is not inadvertent or unknowing. Cullen v. Tarini, 15 A.2d 968 (R.I. 2011). The court found that defendant knowingly violated a covenant that protected plaintiff's view of the ocean. In...

Landlord's interference with 12 square feet of space (out of 15,000) is not a partial eviction entitlement tenant to full rent abatement

The New York Court of Appeals relaxed a traditional rule of property law by holding that a commercial landlord's interference with possession of 12 square feet of space out of a total of 15,000 square feet does not constitute a partial actual eviction entitling the tenant to a full rent abatement. Eastside Exhibition Corp. v. 210 East 86th Street Corp., 965 N.E.2d 246 (N.Y. 2012). The court noted that withholding of the entire amount of rent is the proper remedy when there has been a partial...

Will of real estate may be governed by the law of the situs of the property rather than the decedent's domicile at death

The traditional rule is that title to real property is determined by the whole law of the situs of the property, meaning both the substantive law of the situs and its choice-of-law rules. Thus title is determined by whatever law would be applied at the situs. This rule has been rejected in some cases in recent years because personal property on death is determined by the law of the domicile of the decedent and if different rules are applied to real property located elsewhere and personal property, the decedent's wishes may be ignored or perverted. However, many courts adhere to the...

Ambiguous "survivor" reference creates a tenancy in common rather than a joint tenancy

A deed granting an interest to two siblings (Roger & Dana Waid) "or the survivor" was interpreted as created a tenancy in common rather than a joint tenancy. Young v. Waid, 2012 WL 2947590, (W.Va. 2012). Following the death of Roger, Dana would have had a 100 % interest in the property if they held as joint tenants (because of her right of survivorship) but only a 50 % interest (with 50% held by Roger's heir or devisees) if they held as tenants in common. Applying an...

Pesticide drift is a nuisance not a trespass

The Supreme Court of Minnesota held that pesticide drift from one property to another is governed by nuisance law and not trespass law even though it constitutes a physical invasion of particles. Johnson v. Paynesville Farmers Union Cooperative Oil Co., 817 N.W.2d 693 (Minn. 2012). The court held that trespass law protects only the interest in possession while nuisance law protects use and enjoyment, making nuisance the appropriate standard to regulate the problem. Trespass law does not require any proof...

Low flying planes may effect an unconstitutional taking of property

The Wisconsin Supreme Court ruled that frequent, low-flying aircraft may so interfere with the use and enjoyment of property as to constitute an unconstitutional taking of property by the state. Brenner v. New Richmond Regional Airport Comm'n, 816 N.W.2d 291 (Wis. 2012). Owners located near an airport sued the airport authority when it extended a runway in a manner that created low overflights of their property. The court held that a taking could occur if the flights were "low...

California Homeowner Bill of Rights regulate foreclosures

California passed a statute on Jan. 1, 2013 called the California Homeowner Bill of Rights (Assembly Bill 278, ch. 86, adopted July 11, 2012) (effective Jan. 1, 2013). Among other things, it prohibits banks from proceeding with foreclosures if the homeowners is seeking a loan modification and it requires the bank to act on qualified applications for loan modifications. Cal. Civ. §2923.5.It also subjects banks to a penalty for recording unverified documents. Cal. Civ. §2924.17. It also prevents...

Joseph William Singer

Bussey Professor of Law, Harvard Law School