Keeping Current—Property

Keeping Current—Property offers a look at selected recent cases, literature, and legislation. The editors of Probate & Property welcome suggestions and contributions from readers.

Keeping Current—Property Editor: Prof. Shelby D. Green, Elisabeth Haub School of Law at Pace University, White Plains, NY 10603, sgreen@law.pace.edu. Contributor: Prof. Darryl C. Wilson.

CASES

AUCTIONS:

Contract for sale at auction need not contain attorney review provision. Mengxi Liu, an experienced bidder who had purchased six residential properties at auction sales with her husband, attended an auction sale where she made a high bid of $1.1 million. Before the auction, she received a template “Contract for Sale of Real Estate” and a “notice,” which warned that an auction sale is not subject to an attorney review period and advised prospective bidders that the contract is final and binding. Lui paid $121,000 as an earnest money deposit but did not complete the contract. A second auction was held, and the property sold for $825,000. The seller brought an action for a declaratory judgment that Liu breached the contract, claiming the deposit as liquidated damages. Liu argued that the contract was unenforceable because it lacked the attorney review clause required by a decision of the New Jersey Supreme Court for residential sales in which real brokers participate. The trial court ruled that no three-day attorney review clause was necessary for a contract of purchase at an absolute auction, that Liu had breached the contract, and that the seller should receive the deposit. The intermediate appellate court affirmed. On further appeal, the supreme court also affirmed. It explained that a residential real estate sale by absolute auction is distinct from a traditional real estate transaction—in an absolute auction or an auction without reserve, the owner unconditionally offers the property for sale, and the highest bid creates a final and enforceable contract at the auction’s conclusion. Imposing the three-day attorney review in the absolute auction context would unduly interfere with this method of sale. The notice and template sales contract provided to the bidder before the auction—cautioning that any sale at the auction is final with no attorney review period—serves the consumer protection objectives of the attorney review provision. Sullivan v. Max Spann Real Estate & Auction Co., 276 A.3d 92 (N.J. 2022).

BANKRUPTCY:

Creditor violates automatic stay by conducting foreclosure sale of home owned by LLC after member of LLC files bankruptcy petition.

Eileen Fogarty held a 99-percent interest in an LLC, which in turn owned a residential property that Fogarty occupied as her primary residence. Bayview Loan Servicing LLC initiated a foreclosure action, naming both the LLC and Fogarty as defendants. After Bayview obtained a judgment that authorized a foreclosure sale, Fogarty filed a Chapter 7 bankruptcy petition. Fogarty’s counsel notified Bayview that proceeding with the foreclosure sale would violate the automatic stay that took effect when she filed her bankruptcy petition. See 11 U.S.C. § 362. Bayview responded that because the LLC was a legal entity distinct from Fogarty, her personal bankruptcy petition did not stay acts against the LLC or assets of the LLC. Bayview proceeded with the foreclosure sale without obtaining relief from the stay from the bankruptcy court. Fogarty then sought sanctions against Bayview under 11 U.S.C. § 362(k), arguing that Bayview willfully violated the statute. The bankruptcy court denied Fogarty’s motion, but the district court reversed and remanded for the calculation of fees and other damages to be charged as sanctions for the violation. The Second Circuit Court of Appeals affirmed, relying on the plain text of the statute. Bayview willfully violated two of the Bankruptcy Code’s automatic stay provisions. First, the code prohibits “the commencement or continuation . . . of a judicial . . . or other action or proceeding against the debtor.” Id. § 362(a)(1). Second, the code prohibits “the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case.” Id. § 362(a)(2). Bayview proceeded with the foreclosure sale of a property when Fogarty was a named party in the foreclosure proceedings, even if she held only a possessory interest in the property. In re Fogarty, 39 F.4th 62 (2d Cir. 2022).

FORECLOSURE:

Deed of trust provision giving lender the right to enter immediately after default violates statute that bars lenders taking posses- sion before foreclosure. After Santoro defaulted under his home mortgage loan, the loan servicer, Ocwen, had the locks changed on the property and commenced foreclosure. Ocwen maintained that it sent Santoro a “15 Day Vacancy Letter” and received no response. Santoro alleged that he never received the letter. Santoro sued in federal district court, alleging trespass and intrusion upon seclusion. Ocwen defended based on a provision in the deed of trust authorizing the lender to secure the property if the borrower has abandoned the property. Santoro maintained that the provision is unenforceable because it violated Or. Rev. Stat. § 86.010 by authorizing the lender to recover possession of the property without a foreclosure and sale. The district court ruled for the lender. On appeal, the Ninth Circuit Court of Appeals, finding no Oregon cases on point, looked to the state of Washington, relying on a ruling that a lender recovers possession of a mortgaged property when it changes the locks and requires the borrower to go through the lender to regain access to the property. By authorizing the lender to take those steps before a judgment of foreclosure, the Ninth Circuit held that the deed of trust provision violates the Oregon statute and cannot be enforced. Santoro v. Ocwen Loan Servicing, LLC, 2022 U.S. App. LEXIS 19667 (9th Cir. July 15, 2022).

LANDLORD-TENANT:

Indian housing authority may bring action to evict tenant in state court rather than tribal court. Poitra, an enrolled member of the Turtle Band of Chippewa Indians, lived in housing operated by the Trenton Indian Housing Authority (TIHA) located within the Trenton Indian Service Area, about 240 miles away from the Turtle Mountain reservation. TIHA filed an action to evict Poitra in state court, who moved to dismiss on the ground that the tribal court has exclusive subject-matter jurisdiction under the federal statute that defines “Indian country.” 18 U.S.C. §1151. The state court denied her motion and ordered eviction. Poitra appealed. The state supreme court explained that whether the tribal court has jurisdiction depends on whether the housing is in Indian country as defined by the federal statute, as interpreted by federal case law. The statute defines Indian country as lands within an Indian reservation under federal government jurisdiction, including all dependent Indian communities and all Indian allotments where the Indian titles have not been extinguished. Here, the dispositive issue was whether the TIHA area is a dependent Indian community under a two-part test requiring that: (1) the federal government set aside the land for the use of Indians as Indian land and 2) the land and Indians are under federal superintendence. Poitra offered no evidence of explicit action by Congress to recognize the TIHA housing land as part of a federally recognized Indian community. The supreme court also rejected Poitra’s reliance on a contract required by the Department of Housing and Urban Development, by which the TIHA and Turtle Mountain agreed that tribal courts would have jurisdiction over evictions. The court explained that subject-matter jurisdiction cannot be conferred by agreement, consent, or waiver. Trenton Indian Hous. Auth. v. Poitra, 973 N.W.2d 419 (N.D. 2022).

MORTGAGES:

Obligatory future advances clause gives first lender priority over intervening lender. A landowner issued a promissory note for $344,762 to Epic Solutions to pay for consulting services. A deed of trust secured the promissory note and “all renewals, modifications, or extensions thereof, and also such further sums as may be advanced or loaned.” Next, the landowner issued a promissory note and deed of trust to Commencement Bank for $1.5 million. Later amendments increased Epic’s promissory note to $1,515,000. After a general receiver was appointed to take control of the landowner’s assets, Epic claimed $2,127,073 plus interest and attorneys’ fees. The trial court ruled that Epic had priority over Commencement Bank for the full amount of its claim based on Wash. Rev. Code § 60.04.226, holding that the priority under the future advances clause relates back to the original deed of trust. The appellate court affirmed. The supreme court reversed and remanded. A future advances clause secures a loan or extension of credit that the lender will disburse at a future date. The supreme court held that section 60.04.226, which grants priority to the first lender for all future advances, applies only to construction loans, which was not the type of loan entered into by the parties. Outside the construction loan context, the common law distinguishes between two types of future advances: optional advances and obligatory advances. This rule is intended to protect both borrowers and junior lenders and to promote efficiency in the lending market by allowing later lenders to assess the risk of lending on already encumbered property. Under an obligatory future advances clause, future lenders can see the maximum limit of the future advances and calculate with certainty the potential risk of lending. Under an optional clause, the initial mortgagee with notice of an intervening encumbrance can decide whether or not to advance additional funds, knowing those subsequent loans will be lower in priority to the intervening encumbrance. The supreme court declined to determine whether there is a future advances clause in the contract at issue or whether the future advances clause was required to directly reference the underlying service agreement or state a maximum amount, leaving those issues for the trial court. In re EM Prop. Holdings, LLC, 511 P.3d 1258 (Wash. 2022).

PUBLIC ROADS:

Ancient county map establishes that right of way is public road. The Gregorys and the Longs were adjoining landowners. The Gregorys accessed their parcel using a roadway that crossed the Longs’ parcel to a public highway. Although the parties agreed that the Gregorys had a legal right to use the roadway, they disputed the width of the right of way and its permitted uses. One day, a dump truck filled with gravel traveled up the roadway, ostensibly to fill in some potholes in front of the Gregorys’ house, but the Longs blocked the truck, fearing that the Gregorys were shoring up the road for timbering on their land and that widening the road would cut into the Longs’ ditches, fences, flowers, and trees. The Gregorys sued the Longs, seeking a declaratory judgment to determine the scope of the right of way. The Longs moved for summary judgment, asserting that the Gregorys held only a prescriptive easement, limited to a width of 10 to 12 feet for access to their house and for occasional agricultural use. The trial court denied the motion because of disputed facts. Thereafter, the Gregorys found a 1905 map hanging in the hallway of the county courthouse. They claimed that the map showed that the roadway traversing the Longs’ property was an ancient public county road. The trial court granted partial summary judgment to the Longs, finding that the map was “not a public record.” On appeal, the Longs further objected to the introduction of the map as hearsay. The supreme court ruled for the Gregorys. Although documents may be hearsay and presumptively inadmissible, authentication may raise their level of reliability. An ancient document is authenticated by showing that the item: (1) is in a condition that creates no suspicion about its authenticity; (2) was found in a place where it would likely be; and (3) is at least 20 years old when offered into evidence. W. Va. Rules Evid. 901(b)(8). Each requirement was met: the map was drawn 117 years earlier and no evidence cast doubt on what it purported to be—a map of county landmarks including county roads, drafted on behalf of the county commission. An affidavit from the current county clerk confirmed that a framed copy of the map had hung in the courthouse for at least 21 years. It was thus admissible as an “ancient document.” (Editor’s note: All the supreme court did was rule on the admissibility of a map, per se. Counsel for the Gregorys tells the editor that he intends to offer a wide-ranging collection of evidence, from newspaper articles to historical accounts on road maintenance. The trial court earlier rejected the opinion of a preeminent law professor on the subject of roads. This case has been ongoing for six years, and counsel is not sure he will outlive it.) Gregory v. Long, 875 S.E.2d 298 (W. Va. 2022).

RECREATIONAL USE STATUTE:

Immunity from liability does not extend to injuries from zip-line installed by landowner. Doreen Rott attended a party at her brother Arthur’s house, during which she claimed he coerced her into joining others in riding a zip-line he had installed in his backyard. Doreen prematurely thought the ride had ended, extending her legs to the ground too soon, resulting in a serious knee injury. Doreen sued her brother, who raised the defense of the Recreational Use Act (RUA), Mich. Comp. Laws § 324.73301, which bars claims against property owners providing certain recreational activities unless they have engaged in gross negligence or willful and wanton misconduct. The trial court dismissed Doreen’s claim. The intermediate appellate court agreed that the RUA applied to zip-lining and barred Doreen’s claim. In a split opinion, the supreme court reversed and remanded. The majority first noted the purpose of the RUA is to encourage landowners to broaden the areas available to the public for recreational purposes by limiting their potential liability. In 1953, the act originally listed only fishing, hunting, or trapping. In 1964, an amendment added camping, hiking, sightseeing, or other similar recreational uses. The activities section was last amended in 1974 to add motorcycling, snowboarding, or “any other outdoor recreational use.” Based on statutory text, precedent, and the RUA’s evolution, the court held that the most reasonable unifying characteristics shared by the listed activities were that the activity traditionally was engaged in outside, and the activity required nothing more than permission to access the land, purportedly in its natural state, to engage in the activity or use. Therefore, any activity asserted as encompassed by the statute’s catchall phrase, “any other outdoor recreational use,” must meet those criteria. Though zip-lining traditionally is performed only outdoors, the court found it does not meet the mere access requirement when the landowner installs zip-lining facilities and equipment on the land. Further, zip-lining, now gaining in popularity, was not specifically added as a form of outdoor recreation during the RUA’s most recent amendments. Rott v. Rott, 972 N.W.2d 789 (Mich. 2021).

SALES CONTRACTS:

Seller’s failure to disclose presence of underground fill material is not active concealment. In 1975, Wakefield purchased real property and one year later began construction of two four-unit apartment buildings. After completion of the first building but before construction of the second, Wakefield submitted a site plan to the city, which designated an area on the land to be filled. The site plan was recorded in the public records. Wakefield, however, added the filled material (gravel and debris) to his remaining land more than two decades later. In 2019, Wakefield negotiated to sell the property to Telos Capital. After negotiations began, Telos assigned its rights as purchaser to Pleasantdale. Wakefield had no knowledge of the assignment, and he and Telos signed a sales contract that eliminated all contingencies, including an inspection contingency, and provided for the sale of the property “as is.” Pleasantdale purchased the property for $725,000, never having communicated directly with Wakefield. Some months after closing, Pleasantdale’s contractor excavated the land, uncovering the fill, which impeded Pleasantdale’s plan to build additional apartments. Pleasantdale sued Wakefield, alleging fraud and negligent misrepresentation under Me. Rev. Stat. Ann. tit. 33, § 173(5), which imposes an affirmative obligation on sellers of residential real property to disclose any “known defects” in the property. Pleasantdale also alleged that Wakefield actively concealed the presence of “uncontrolled fills by burying them so that they could not be seen by visual observation by prospective purchasers and by lying about it on the Property Disclosure form.” Wakefield moved for summary judgment, arguing that section 173(5) applies only to “residential real property,” which the statute defined as “real estate consisting of one or not more than 4 residential dwelling units.” Id. § 171(5). Here, the property, when sold, had eight residential units, and, therefore, the statute did not apply. Wakefield also argued that the doctrine of caveat emptor absolved him of any liability to Pleasantdale. The trial court dismissed all claims, finding section 173(5) not applicable and that Pleasantdale failed to offer evidence of concealment. On appeal, the court explained that, under Maine law, a plaintiff claiming active concealment must show that the defendant took steps to hide the true state of affairs. Pleasantdale wholly failed in this burden—the site plan describing the fill was a matter of public record, and fill by definition is placed underground. Moreover, Pleasantdale never dealt with Wakefield and bought the property “as is.” The court stated: “a purchaser’s ignorance of facts, without more, does not amount to active concealment.” Pleasantdale Condo., LLC v. Wakefield, 37 F. 4th 728 (1st Cir. 2022).

TAX SALES:

Tax-sale purchaser may not bring action for forcible entry and detainer against delinquent taxpayer after two voluntary dismissals. Rooney owned his home since 1987 but failed to pay property taxes for 2015, and his home was sold in a tax sale in 2017. ACC purchased the property for $2,985. When Rooney failed to redeem, ACC received a tax deed. In September 2017, ACC served Rooney with notice of an impending Forcible Entry and Detainer (FED) action, which it filed in small claims court on October 1. On October 16, ACC voluntarily dismissed the FED action without reason or prejudice. ACC had already filed its second FED on October 15 in the district court, attaching the same documents that were used in the first petition. On December 22, ACC voluntarily dismissed the second FED petition, having filed a third FED action in district court, with some updated documents, on December 21. A FED hearing ultimately took place, and the court awarded possession to ACC, finding the prior voluntary dismissals were not a final adjudication against ACC. Rooney appealed. The supreme court reversed. Under Iowa Rule of Civil Procedure 1.943, a second voluntary dismissal of the same action operates as an adjudication against the movant on the merits unless otherwise ordered by the court in the interests of justice. Here, ACC obtained two prior voluntary dismissals and the third FED action involved the same tax deed and same ongoing occupancy issues and thus should have been dismissed ab initio, with prejudice. Anticipating the inevitable question of legal options post dismissal, the court ventured to consider whether this case would bar ACC from bringing a quiet title action against Rooney and stated that it would not. A FED action does not affect title to the premises and therefore is not a bar to further action between the parties regarding title, such as actions in ejectment, foreclosure, trespass, and quiet title. ACC Holdings, LLC v. Rooney, 973 N.W. 2d 851 (Iowa 2022).

ZONING:

Planning department’s statement of present zoning does not give rise to vested rights. Carson met with Brown, the County Planning Director, to discuss Carson’s plan to purchase 17 acres to develop a residential subdivision with 42 lots, each with an area of 9,000 square feet. Brown was allowed to interpret the zoning code but lacked the authority to promise or authorize the issuance of building permits. Carson showed Brown a hand-drawn depiction of his proposed subdivision layout and asked Brown to confirm whether his layout complied with the existing zoning code. Brown confirmed that Carson’s plan complied with the code at that time, and, soon after, Carson purchased the land. But months later, the county board placed a moratorium on permits for 9,000-square-foot lots. Carson later made an application for permits, which the county rejected. Carson then filed an action asserting vested rights to develop his land, claiming to have expended $83,000 for plans, studies, and related necessities pursuing the development of the land. The zoning board and county attorney found that Carson had no vested rights. The appellate court reversed. The supreme court reversed the appellate court. The court recognized four scenarios in which a landowner acquires vested rights to initiate specific uses despite subsequent zoning changes: (1) upon an issued permit; (2) upon the law in existence when a landowner properly files an application for a permit; (3) upon formally or informally approved development plans; or (4) upon official assurances that a building permit will probably issue. Carson’s case fell into the latter category and therefore required proof that he made a substantial change in position by expenditures in reliance on an assurance. The record showed no assurance from Brown that a building permit would issue or that county zoning law would not change. Brown’s statements were neutral descriptions of the law in effect, a fact Carson could have easily obtained himself. The purchase of land by itself does not confer a vested right upon a purchaser. There can be no estoppel by conduct when both parties have equal knowledge or equal means of knowing the truth. Brown v. Carson, 872 S.E.2d 695 (Ga. 2022).

LITERATURE

HOUSING:

Housing insecurity is a pandemic. That is how Prof. John R. Nolon, in Pandemics and Housing Insecurity: A Blueprint for Land Use Law Reform, 46 Vt. L. Rev. 422 (2022), frames it. Housing insecurity ranks among three other contemporary pandemics— worsening climate change, COVID-19, and racial inequity. In casting housing insecurity in the league with COVID19, Prof. Nolon shows that, just like COVID-19, it diminishes the quality of life, physical health, and economic prospects of those who experience it. Among the four, housing insecurity seems the most persistent but, at the same time, is perhaps the most immediately addressable. Prof. Nolon demonstrates that, like the responses to COVID-19, states and cities around the country are adopting measures to make housing affordable and accessible, from inclusionary zoning ordinances to prescriptions for the missing middle housing. New legislation has loosened restrictions on accessory dwelling units and the siting of supportive housing, serving environmental goals as well as housing access. Cities are seeing the negative effects of gentrification and are adopting policies and strategies to keep vulnerable populations in their communities, such as right-to-purchase programs. Prof. Nolon goes on to indicate that much housing inadequacy can also be mitigated by supporting the existing housing stock by enforcement of housing codes and property maintenance codes, regulating vacant and substandard properties, abating public nuisances, and taking title to distressed buildings. Prof. Nolon shows that the approach with the greatest promise is multi-faceted and broad-based.

The havoc wrought by the COVID19 pandemic on housing access rivals that of the Great Depression. In Housing Injustice and the Summary Eviction Process: Beyond Lindsey v. Normet, 74 Okla. L. Rev. 391 (2022), Prof. Kathryn Ramsey Mason shows how, just as during the Great Depression, the impacts on housing access were severe but disproportionate, falling more heavily on certain populations—low-income people of color. Prof. Mason asserts the root cause of much of the housing insecurity during the COVID-19 pandemic is the ease and speed with which property owners can displace a residential tenant through the summary possession proceeding—a process designed to provide quick and efficient recovery of possession. But she explains that landlords have come to use the proceeding more as a debt collection mechanism, while the interests of tenants in possession are largely ignored. She casts the summary proceeding as the embodiment of the lingering power imbalance in the landlord-tenant relationship, a point missed by the Supreme Court in Lindsey v. Normet, 405 U.S. 56 (1972), when, at the height of the revolution in landlordtenant law, the Court rejected a tenant’s equal protection challenge to Oregon’s forcible entry and detainer statute, declaring that there is no constitutional right to housing. She paints a most distressing picture of the summary possession proceeding, an alternative to the cumbersome and ancient ejectment action. The summary proceeding is swift, denying tenants many of the usual civil litigation procedural protections: for example, reasonable time to answer and the ability to assert counterclaims and defenses, except payment. At hearings in front of judges with thousands of cases on their daily dockets, tenants tend to be unrepresented by counsel, and proceedings last only two minutes on average. Prof. Mason claims that the revolution in landlord-tenant law fell short, as it left in place a proceeding that supports evictions that not only result in poverty but are drivers of poverty and ill health. Prof. Mason believes reforms are in order, starting with the dismantling of the “primacy of possession” in the summary proceedings, then adopting mechanisms to raise the bar to summary actions. Prof. Mason sees the tenants’ rights to possession and the societal interest in the security of tenure as highly important, but she seems not much concerned that money judgments against defaulting tenants may be worthless or about the rights of property owners stemming from title. The two sides of this dynamic have been in fragile contention for some time, but the balance clearly shifted during the pandemic, as local governments and the CDC imposed moratoria on evictions during the height of the pandemic, at first, without any protections for the economic interests or burdens on property owners. If nothing more, Prof. Mason shows that the landlord-tenant relationship is not an easy one.

REAL COVENANTS:

Prof. Robert C. Ellickson, in Stale Real Estate Covenants, 63 Wm. & Mary L. Rev. 1831 (2022), offers a keen analysis of the purported values and burdens of covenants, at least stale ones—those that might have outlived their initial promises and now only burden land uses and retard development and housing access. Although covenants became prevalent in housing developments early in the twentieth century before zoning became popular, they continue to be used today. In 2018, the Community Association Institute estimated that at least 61 percent of new dwellings are burdened by covenants. Prof. Ellickson focuses on covenants in Hancock Park, a famous subdivision in Los Angeles, that has led to “Dead Mile,” so named because covenants essentially have barred all improvements that would have allowed the neighborhood to keep up with contemporary uses and living patterns, leaving the city to upzone around the edges. The developer of Hancock Park wanted to keep out not only nonwhites but also middle-income households of all races on the premise that this would add to the social capital of its residents. Simultaneously, this inhibited the creation of social capital across other income groups in Los Angeles. Prof. Ellickson recites urban economists who study the unmitigated burdens of covenants and conclude that after as few as 40 years, the costs of covenants commonly exceed their benefits. Although he does point to some existing mechanisms for ameliorating some of the burdens of stale covenants, in particular the changed-conditions doctrine, this approach is ad hoc and does not comprehensively address the staleness. Even legislation that eliminates constraints on certain kinds of housing development (e.g., Oregon’s eliminating single-family zones) often grandfathers private covenants governing the same issue. Despite all the problems with private covenants, Prof. Ellickson believes that the politics of exclusionary zoning with all its rigidity and inflexibility tend to be far more challenging than the politics of stale covenants and works to harm the national economy, inflate housing costs, and inhibit internal migration. Nonetheless, he warns that “Lawmakers should recognize that covenants commonly have value while in their teens, but not in their dotage.” But he does not tell us what to do about them.

WASTE:

In Waste and the Governance of Property, 93 U. Colo. L. Rev. 609, Profs. Tara K. Righetti and Joseph A. Schremmer ambitiously argue that the historical common-law waste doctrine is more than an educational artifact and should instead be viewed through a modern lens as providing valuable guidance in resolving current and future property disputes. The article characterizes the process of resolving common ownership disputes with conservation in mind for the good of the whole community over time as “the waste principle.” That principle holds that the law should prohibit wasteful uses of property (negative-sum outcomes with losses exceeding gains) when property owners and regulators prove unable to agree to stop the waste. The authors analyze the well-known cases involving land, oil, gas, and water, examining the gradual transformation from general common-law principles to multiple levels of statutory and regulatory guidelines. Although the authors initially offer Lockean principles on the need to curb uncultivated waste, they also interject economic analysis as well and pepper their reassessment with requests for readers to evaluate theories and outcomes from an angle of general efficiency. On those rare occasions when destruction is likely to prove beneficial to private owners or the collective citizenry, the waste principle is not so strictly applied. As types of ownership have evolved and society has grown, the government has addressed the concerns of the waste principle, usually by legislative action. The authors remark, however, that statutory development does not automatically eliminate common-law waste law or relegate it to obscurity, although they give few examples of contemporary uses, except in cases involving fluid commons or naturally migratory resources used to constrict diminution of the total value of the resources. The authors posit that using the flexibility of the waste principle is likely more efficient than statutory regulation in dealing with standard natural resource controversies as well as those coined as atmospheric trust matters, which focus on societal pollution caused by the injection of gases into the air.

LEGISLATION

COLORADO amends eminent domain law to specify compensation for conservation easements. When the government takes a conservation easement in gross, just compensation is determined based on the value of the property as if unencumbered by the conservation easement in gross and is allocated between the fee owner and the holder of the conservation easement based upon the value of their respective interests in the property. 2022 Colo. Ch. 420.

DELAWARE ties rent increases in manufactured home communities to the Consumer Price Index for All Urban Consumers in the Philadelphia-Camden-Wilmington region. A community owner may increase rent by no more than (a) 3.5 percent of the rent plus 50 percent of the 24-month Consumer Price Index for All Urban Consumers (CPI-U) up to an amount that does not exceed 7 percent of the 24-month CPI-U, if the CPI-U is equal to or below 7 percent; or (b) the 24-month CPI-U, if the 24-month CPI-U exceeds 7 percent. 83 Del. Laws 341.

FLORIDA amends building code on roof repairs. If 25 percent or more of a roofing system or roof section is being repaired, replaced, or recovered, only the repaired, replaced, or recovered portion is required to be constructed in accordance with the new building code in effect at the time of the work. 2022 Fla. Laws ch. 269. FLORIDA adopts “Miya’s Law.” The law requires landlords to conduct background screenings for violent criminal offenses for their prospective employees as a condition of employment. Landlords must also maintain a log for each dwelling unit’s keys. Reasonable notice to enter a unit for maintenance and repairs is increased from 12 hours to 24 hours. 2022 Fla. Laws ch. 222.

MICHIGAN adopts Uniform Assignment of Rents Act. An assignment of rents creates a presently effective security interest in all accrued and unaccrued rents arising from the real property described in the document creating the assignment, regardless of whether the document is in the form of an absolute assignment, an absolute assignment conditioned upon default, an assignment as additional security, or any other form. The security interest in rents is separate and distinct from any security interest held by the assignee in the real property. The act contains provisions on discharge, treatment in the case of foreclosure, transfers, and recording. The act largely exempts interests in real property improved by one-to-four dwelling units. 2022 Mi. P.A. 115.

MISSOURI adopts law to prohibit limits on home-based work. Zoning ordinances may not prohibit mail order or telephone sales for home-based work, prohibit or require structural modifications to the home or accessory structure, restrict the hours of operation for home-based work, restrict storage or the use of equipment that does not produce effects outside the home or accessory structure, or require permitting or licensing for home-based work. 2022 Mo. HB 1662.

Published in Probate & Property, Volume 36, No 6 © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Probate & Property, November/December 2022