Showing posts with label real property. Show all posts
Showing posts with label real property. Show all posts

Tuesday, March 2, 2021

Covid-era eviction elicits ancient injunction plea

Clameur de Haro was invoked to block the burial of William the Conqueror in 1087.
Image from Amable Tastu, La Normandie Historique (1858).
We've all seen the strain of the pandemic on our socioeconomic fabric and the rule of law.

Last week came the alarming news that a federal district judge in Texas ruled unconstitutional the eviction moratorium issued by the Centers for Disease Control.  Judge Campbell Barker held in Terkel v. CDC that the moratorium exceeded the federal power that the CDC could exercise on behalf of Congress under the Article I Commerce Clause and Necessary and Proper Clause of the U.S. Constitution.

A friend and colleague on Jersey, a Crown dependency close to France, sent along this fascinating item from the Jersey Evening Post.  A Jersey resident who was served with eviction papers after being unable to pay the mortgage invoked "an ancient legal right" called "the Clameur de Haro."  The Post explained:

To enact the Clameur the aggrieved party must go down on one knee in the location of the offence and then, with hands in the air and in the presence at least two witnesses, must call out: "Haro! Haro! Haro! A l'aide, mon Prince, on me fait tort." This translates as: "Hear me! Hear me! Hear me! Come to my aid, my Prince, for someone does me wrong." The offending activity must cease. The individual then needs to put the grievance down in writing and lodge it with the Judicial Greffe within 24 hours.

Jersey
(image of ESA Copernicus Sentinel-2 CC BY-SA 3.0 IGO)
Jersey is a fascinating study in comparative law.  One might expect the island to be legally indistinguishable from the UK, but that is not the case at all.  Jersey has its own parliament and legal system.  Unlike the UK, Jersey is not a member of the Hague Convention on the enforcement of foreign civil and commercial judgments, so a foreign entity wishing to enforce there must seek to register the judgment through a domestic legal process.

Collas Crill, "an offshore law firm that never stands still," wrote an explainer in 2018 on the Clameur de Haro in neighboring Channel Island Guernsey, where the process seems to be the same.  The explainer added, "After the cry, both the Lord's prayer and a Grace must be recited by the complainant in French."

Quartz reported how a woman in Guernsey stopped construction on a road improvement project in 2018 by invoking the Clameur de Haro.  According to Quartz, "[t]he clameur was first recorded in Norman law in the 13th century. Its use is believed to have originated in the 10th century as an appeal to Rollo, Viking founder of the Norman dynasty, according to a 2008 article in the Jersey and Guernsey Law Review by lawyer and legal historian Andrew Bridgeford."

Collas Crill lawyers further explained, "Arguably the main reason for the continued use of the Clameur is the immediacy of its effect, although in modern times an additional perceived benefit is the publicity it can draw to your cause."

Thursday, February 6, 2020

Falmouth takings case affords opportunity to plan for sea-level rise, if officials take notice, scholars write

In September, I wrote about a Massachusetts takings case pending petition for review to the U.S. Supreme Court. The Court denied review, so the Massachusetts Appeals Court decision that vacated a jury award to the takings claimant stands. My colleagues Professors Chad McGuire and Michael Goodman have written for CommonWealth Magazine about the case's potential implications for climate change in combating sea-level rise.

McGuire and Goodman described the case:

In December the U.S. Supreme Court denied a petition for review by Janice Smyth of Falmouth on the question of whether the Falmouth Conservation Commission, when denying a permit to develop her coastal property in Falmouth, exacted a de facto “taking” (often referred to as a regulatory taking, or inverse condemnation). Smyth inherited the coastal property from her parents but, by the time she took action to exercise her right to develop that land in 2012, she ran afoul of the no-development zone enacted locally to mitigate erosion and coastal land loss experienced over recent decades.

They conclude that government leaders should use the latitude afforded them by this precedent to plan for the coastline impact of climate change while "manag[ing] the consequences for coastal land values, local real estate markets, and the tax base of our coastal municipalities."  Read more.

Saturday, September 21, 2019

Takings are out of control; whither went democracy?

My colleague Prof. Ralph Clifford is cited and quoted in this item from the Pacific Legal Foundation. The PLF opined with disapproval upon takings problems in which the government essentially exploits the takings power after discounting property value by tax liability, a one-two punch, kicking the owner to the street.

The abuse is compounded by the continuing latitude of governments to line the pockets of private investment with the proceeds of takings, upheld in Kelo v. New London (2005).  See also the award-winning documentary Little Pink House (2017), and a mouth-watering Kelo epilog.

This on the heels of discussion at UMass Law last week of a U.S. Supreme Court cert. petition filed in Smyth v. Conservation Commission of Falmouth (Mass. App. Ct. Feb. 19, 2019), now No. 19-223 (pet. filed U.S. Sept. 19, 2019), in which the Massachusetts Court of Appeals rejected a takings claim upon denial of a building permit.  (HT@ Dean Eric Mitnick.  The court heard arguments in the case at UMass Law last year.)

One doesn't have to look far nowadays for abuses of governmental power that are bipartisanly objectionable yet persist to the shameless aim of making the rich richer.  I'm presently reading Amor Towles's A Gentleman in Moscow, a fiction about the aftermath of the Russian revolution; when you're a libertarian and you start thinking "those Bolsheviks weren't all bad," something has gone awfully wrong in America.

Here is an excerpt of the PLF item:
Uri is a retired 83-year-old Michigan engineer, and in 2014 he accidentally underpaid, by $8.41, the property taxes on a home he rented out. But instead of notifying him of the issue and helping him, his county government seized the home and sold it at auction for $24,500. The county then kept all the proceeds—leaving Rafaeli with nothing.
All for an 8 buck mistake.
That may sound like an extreme and unusual case. But in fact, this type of tax forfeiture abuse, called home equity theft, is completely legal in 13 states.
In Alabama, Colorado, Maine, Massachusetts, Michigan, Minnesota, New York, North Dakota, Oregon, and Wisconsin, governments not only keep the value of unpaid property taxes and interest from the sale of a seized home—they also keep the surplus value rather than returning it to the property owner. In Arizona, Colorado, Illinois, Massachusetts, and Nebraska, private investors often reap the gains of home equity theft.
Here is the abstract of Prof. Clifford's 2018 study:
Prof. Clifford
The predominant method for collecting delinquent real estate taxes in Massachusetts is the use of the “tax deed” as authorized by Chapter 60, Sections 53-54. Under the authorized procedures, each municipality’s tax collector can execute and record a deed that transfers fee simple title to the real estate to the municipality subject to the taxpayer’s statutorily created redemption right. If the redemption right is or cannot be exercised, all of the taxpayer’s rights in the property, as well as other’s rights created by encumbrances such as mortgages, are terminated by the foreclosure process provided for in the statute. Importantly, the municipality does not obtain title to the taxpayer’s land by foreclosure; instead, it merely frees itself of any remaining claim by the taxpayer.
The problem with the tax deed procedure is that it fails to provide both procedural and substantive due process to the taxpayer. Procedurally, although adequate notice is given, title to the taxpayer’s real estate is taken by the government without a hearing. Based on an unreviewed decision by a municipal tax collector, the taxpayer immediately loses title to the land. Substantively, by using a tax deed, the municipality engages in the taking of property without providing reasonable compensation. The value of the land taken for payment of the tax debt is not evaluated in the context of the debt owed. Empirical evidence shows that the property’s value significantly exceeds the debt owed, giving the municipality the ability to collect almost fifty dollars for every dollar of delinquent real estate tax owed, on average. Each year, approximately $56,000,000 is unconstitutionally appropriated from taxpayers. This article explores these problems. 
And here are the questions presented in the Smyth petition:
In Penn Central Transp. Co. v. N.Y., 438 U.S. 104 (1978), this Court held that Fifth Amendment “regulatory takings” claims are governed by three factors: the “economic impact” of the challenged regulatory action, the extent of interference with a property owner’s “distinct investment-backed expectations” and the “character of the governmental action.” Id.
Falmouth, Mass., property, posted by Frank Haggerty to Patch.
The Massachusetts Appeals Court applied the Penn Central factors to hold that Respondent Town of Falmouth (Town) did not unconstitutionally take Petitioner Janice Smyth’s (Mrs. Smyth) property by denying a permit to build a home. Mrs. Smyth’s parents purchased the lot in 1975 for $49,000 ($216,000 in today’s dollars), but did not develop it. In the meantime, the entire subdivision was developed. When Mrs. Smyth inherited the lot and sought to build, the Town refused to grant a permit based on regulation post-dating her interest. The denial left Mrs. Smyth’s lot without any possible use except as a “playground” or “park,” and stripped it of 91.5% of its value. Yet, the court below held that none of the Penn Central factors weighed in favor of a taking under these circumstances.
The questions presented are:
1. Whether the loss of all developmental use of property and a 91.5% decline in its value is a sufficient “economic impact” to support a regulatory takings claim under Penn Central.
2. Whether a person who acquires land in a developed area, prior to regulation, has a legitimate “expectation” of building and, if so, whether that interest can be defeated by a lack of investment in construction?
3. Whether the Court should excise the “character” factor from Penn Central regulatory taking analysis.
My Comparative Law class is reading about democratic deficit in Europe.  It's a good time to remember that the study of comparative law can be as much about similarities as differences.

Friday, July 27, 2018

Nuisance rule for trees rooted in history, reaffirmed by Mass. high court


In an opinion suitable for textbooks, the Massachusetts Supreme Judicial Court reaffirmed the rule of nuisance that neighbor may not sue neighbor over property damage from a healthy, overhanging tree.

A resident of Randolph, Massachusetts, complained that a neighbor's overhanging tree, a 100-foot sugar oak, had caused property damage by promoting algae on the complainant's roof.  The high court reiterated the historic rule that a property owner cannot be held liable in nuisance for damage caused by a neighbor's healthy tree, whether unruly roots that damage a foundation, or the natural shedding of leaves, branches, and sap.  A neighbor is entitled to trim back offending incursions, the court observed.

The court reaffirmed the historic rule despite the complainant's entreaty to consider alternative approaches from other states.  The rule emerged from a time of lower population density, when it would have been excessively burdensome for property owners to monitor all trees near property lines, the court explained.  "We invite challenge to antiquated laws," the court wrote.  Nevertheless, the court declined to "uproot precedent."  The historic rule continues to have relevance by minimizing litigation, the court reasoned, especially when the law is clear that a neighbor may cut back overhanging branches.

Affirming the lower court, the case is Shiel v. Rowell, No. SJC-12432 (Mass. July 16, 2018) (Cypher, J.).