October 2015

Trespass claimant has the burden to prove lack of consent to the entry

A trespass is a non-privileged entry onto land possessed by another. Privilege can come from several sources including consent of the owner and public policy. In a case of first impression, the Supreme Court of Texas held that the plaintiff in a trespass case bears the burden of proving that entry by the non-owner was non-permissive. Rather than simply proving that the defendant entered the plaintiff's land, the plaintiff must prove that the entry was a trespass and to do that the plaintiff must show the entry was not done with the consent of the plaintiff owner....

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Mortgagor cannot challenge foreclosure because of lack of evidence of valid mortgage assignments

The Nebraska Supreme Court has joined other courts that have held that a bank that holds the mortgage note may foreclose on the property even if there is no evidence of a valid chain of mortgage assignments and some doubt about whether the foreclosing party has the right to foreclose. Marcuzzo v. Bank of the West, 862 N.W.2d 281 (Neb. 2015). The theory is that the holder of...

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Public housing tenant can be evicted for criminal drug use without any protections otherwise available under state law

A Wisconsin state statute provides tenants a 5-day right to cure any violation of the lease terms before being evicted. Wis. Stat. §704.17(2)(b). But the Wisconsin Supreme Court concluded that public housing tenant who engages in drug-related activity can be evicted without a right to cure because federal law (the Anti-Drug Abuse Act of 1988, 42 U.S.C. §1437d(1)(6), provides that any such activity is grounds for eviction. The state statute was preempted by federal law and thus could not stand as an impediment to the eviction....

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Washington Supreme Court joins courts that reverse the presumption of permissiveness for prescriptive easements

In general, possession of property owned by another is presumed to be non-permissive. Thus, one can obtain property by adverse possession if one actually possess real property in a visible manner for the statute of limitations without regard to proof of lack of permission. Many courts apply the same presumption to claims for prescriptive easements. The reason is that some border cases (such as use of a strip of property for driveway purposes) may involve both an adverse possession claim and a prescriptive easement claim and it is thought to be irrational to reverse the presumptions for the...

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No statute of limitations bars a claim to set aside a forged deed and subsequent mortgage

The New York Court of Appeals had reaffirmed the traditional rule that forged deeds do not convey title. It has clarified that no statute of limitations bars a challenge to a forged deed even if the purported owner has subsequently transferred interests in the land to a subsequent mortgagee who had no notice of the forgery. Faison v. Lewis, 32 N.E.3d 400 (N.Y. 2015). The Court ruled that the third party purchaser is not a "bona fide...

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Private owner may not sue for public nuisance without proof of special injury

The North Dakota Supreme Court affirmed the traditional rule (rejected now by some courts) that a private owner cannot sue for a public nuisance unless the owner can show special damage to the owner's property that is different in scope or character to that suffered by the general public. Hale v. Ward County, 848 N.W.23 245 (N.D. 2014).

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Odors do not constitute a trespass

The South Carolina Supreme Court affirmed the traditional distinction between nuisance and trespass law by holding that invasion by microscopic particles does not constitute a trespass. Owners located near a landfill needed to make a nuisance claim and prove unreasonableness rather that merely asserting a claim for a physical invasion. Babb v. Lee County Landfill SC, LLC, 747 S.E.2d 468 (S.C. 2013). Some courts have altered the...

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Tenants protected from retaliatory eviction need not prove landlord's subjective intent, only that the tenants protected actions were the "but for" cause of the eviction

Tenants who complained about the electrical system and were then evicted could prove retaliatory eviction and stave off eviction merely by showing that their protected action was the "but for" cause of the eviction. They need not prove the landlord's subjective intent and the eviction following their complaint placed the burden on the landlord to show that the eviction was not retaliatory. Elk Creek Mgmt. Co. v. Gilbert, 303 P.3d 929 (Or. 2013).

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House that substantially encroaches on neighboring property is a continuing trespass and neighbor has the right ask for its removal

When someone intentionally builds a building or part of a building on land owned by another, the land owner may obtain an injunction ordering removal of the trespassory structure. But when someone innocently builds a structure that encroaches on neighboring property, many courts today applied the undue hardship or relative hardshp doctrine and allow the structure to remain on the ground that land owner is partly at fault for not noticing the incursion and stopping it before substantial expense is undertaken by the innocent builder. In such cases, the court usually orders a forced sale of...

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Texas Supreme Court affirms distinction between easements implied from prior use and easements implied from necessity

The Texas Supreme Court has affirmed that easements by necessity exist when an owner sells a landlocked parcel that has no access to a public road. That owner (and subsequent) owners have a right to go over remaining land of the grantor to access to public way. For such a right to be recognized, there must be no alternative access to a public road. The court also found that it presumes that the parties intended to create such an easement and that evidence to the contrary would defeat the claim. (In contrast, some courts hold that owners have no power to create landlocked parcels even if...

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