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August 2012

Vermont civil union counts as a marriage in Massachusetts

The Supreme Judicial Court of the Commonwealth of Massachusetts held that a man who entered into a civil union with another man in Vermont could not marry a different man in Massachusetts before dissolving the civil union. Elia-Warnken v. Elia, 463 Mass. 29, 2012 Mass. LEXIS 678 (Mass. 2012). The court dismissed divorce proceedings in Massachusetts on the ground that the marriage was void from the beginning since one of the men was still "married" (under a "civil union") to another man in Vermont. The...

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Tribal sovereign immunity prevents state foreclosure for failure to pay state property taxes

Applying the standards set down by the Second Circuit in Oneida Indian Nation of N.Y. v. Madison County, 605 F.3d 149 (2d Cir. 2010, a federal district in New York affirmed that a county could not foreclose on tribal land for nonpayment of state property taxes on the ground that the tribe has sovereign immunity that it has not waived and that has not been abrogated by federal law. Cayuga Indian Nation of N.Y. v. Seneca County, 2012 U.S. Dist. LEXIS 117245 (W.D.N.Y. 2012).

Washington Supreme Court holds MERS cannot initiate private deed of trust foreclosures

In Washington state, lenders typically use the deed of trust form for mortgages where the lender is the "beneficiary" of the trust and the "trustee" has the power to act to protect the beneficiary's interest by foreclosing on the property if the borrower defaults on the note (the underlying loan). MERS is typically listed as the beneficiary of the deed of trust rather than the lender that actually issued the loan  (and signed the note) in order to avoid having to record future assignments of the mortgage; the deed of trust is recorded listing MERS as the beneficiary rather than the...

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Implied beach easement found from recorded plans and sales statements

A Massachusetts court has held that owners of lots near the ocean had an implied easement of access to the beach because recorded plans drafted in 1892 showed an unenumerated lot with access to the ocean and the developer had advertised the lots as "Shore Lots" with a “Cool breeze all the time, good bathing, boating and fishing, nice beach, no undertow, shade trees on several of the lots." Leahy v. Graveline, 82 Mass.App.Ct. 144, — N.E.2d —, 2012 WL 2819395 (Mass. Land Ct. 2012). The case...

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