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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
BOUNDARY DISPUTES: One-year statute of limitations on claims challenging a trustee’s conveyance does not apply to adverse possession or boundary by acquiescence. The Vaudts purchased their home in 1991 and installed and maintained a landscape barrier with trees and bushes. The Enamorados purchased the neighboring property from a trustee in May 2021 and obtained a survey that showed that the Vaudts’ landscaping encroached on their land. The Vaudts sued to quiet title in June 2022, asserting both boundary by acquiescence and adverse possession. The trial court held the Vaudts were time-barred by a one-year statute of limitation precluding adverse claims “arising by reason of a transfer of an interest in real estate by a trustee.” Iowa Code § 614.15(5)(b). Overruling a precedent interpreting the statute, the supreme court reversed the dismissal of the Vaudts’ claims and remanded for further proceedings. It first clarified the distinction between claims for adverse possession and boundary by acquiescence. The former establishes a change of property ownership to a party that satisfied certain elements, but the latter involves a mutual recognition by adjoining landowners that a definitely marked line establishes their boundary. The court held that the statute of limitations applies only to an adverse claim related to a trustee’s transfer of property, not to the prior conduct of the two adjoining neighbors. The subsequent transfer of one adjoining property by a trustee’s deed has no relevance to the elements of the Vaudts’ claims. Vaudt
BROKERS: Broker who finds tenant after listing agreement expires is not entitled to sales commission. The Tronnes signed an exclusive listing agreement commencing May 1, 2020, and expiring October 31, 2020, with a five percent commission if the broker procured a buyer or if an option to purchase was exercised. The agreement also had a 180-day tail period during which a commission was payable if the property was sold to a purchaser to whom the broker had shown the property. The parties also executed a separate property management agreement authorizing the broker to lease and manage the property initially from August 16, 2019, to September 1, 2020. The broker negotiated a lease with tenants who responded to his online advertisement pursuant to terms agreeable to the Tronnes. The tenants took possession in October 2020, and in January 2021, the Tronnes visited the community and dropped by the rental home where they spoke with the tenants about their buying the property. The tenants stated they were not financially able to purchase at that time. The parties ultimately executed a purchase agreement on April 30, 2021, one day after the tail period expired. The Tronnes closed the sale, and the broker filed suit alleging breach of both agreements and seeking to collect his commission. The Tronnes prevailed on summary judgment with respect to the commission claim, and the supreme court affirmed. The court stated that the broker procured the purchaser as tenants during the term of the listing agreement and that the sellers’ discussing with the tenants the possibility of later purchasing the property did not equate to the broker’s procuring a ready, willing, and able purchaser. Additionally, emails between the sellers and tenants negotiating the terms of the lease, which included the sellers’ concession not to show the property during the lease term, did not transform the lease into an option contract. The broker never transmitted an offer to sell to the tenants at a specific price in exchange for particular consideration. Uhre Realty Corp. v. Tronnes, 3 N.W.3d 427 (S.D. 2024).
COTENANTS: Payment of mortgage debt upon sale is determined by express language of agreement and not by percentage of ownership. In 2021, Gwen inherited real property from her long-time domestic partner as a cotenant with his children. To continue living in the home, she needed to purchase the property from the estate. Gwen’s niece, Amber, and her husband, Diego, agreed to help with the purchase and to move in with Gwen. They agreed to take title as tenants in common and signed an agreement that set out rights and obligations: Gwen would contribute $233,375 to the purchase and Amber and Diego, $17,000; all would obtain a mortgage loan of $560,000, for which Gwen would be responsible for 30.68 percent and Amber and Diego 69.32 percent; Gwen would hold a 50 percent interest and Diego and Amber a combined 50 percent interest; and all other expenses, including utilities, maintenance, property taxes, and insurance, would be paid according to their ownership interests. After relations broke down between the parties, they discussed selling the property but disagreed on how they would divide the sale proceeds, specifically how to handle the mortgage payoff. Gwen filed an action seeking a determination on this issue, and the trial court ruled for Gwen, reasoning the language of the agreement was plain. Each of the parties was entitled to half of the sales amount, then the balance on the mortgage would come out of the parties’ respective halves of the proceeds—Gwen to pay 30.68 percent and Amber and Diego 69.32 percent. The supreme court affirmed, explaining that, in Montana, a contract is to be interpreted to give effect to the mutual intention of the parties at the time of contracting and, when reduced to writing, that intention is to be ascertained from the writing alone, so long as the writing is clear and not ambiguous, giving effect to the whole of the contract. Mont. Code § 28-3-301. Here, the agreement in plain terms contained a formula allocating responsibility for the mortgage debt, and there was no provision in the agreement that required the mortgage to be paid before distributing the sales proceeds equally to each owner. The 50/50 ownership provision could not be elevated to ignore the express provision for the mortgage obligation. Gerber v. Davalos, 547 P.3d 664 (Mont. 2024).
EASEMENTS: Improvements to RV parking space are insufficient to establish “comprehensive prescriptive easement.” In 2015, the Joneses purchased property, then immediately made substantial improvements near a block wall, including the installation of a new iron gate and utility hookups for their recreational vehicle. In 2016, Ghadiri purchased the property located on the other side of the block wall. Several years later, a survey showed that 591 square feet of his property were on the Joneses’ side of the block wall. Ghadiri acquired a permit to destroy the block wall and install a new wall on the property line at his expense. The Joneses filed a complaint against Ghadiri, claiming a prescriptive easement and title by adverse possession and seeking an injunction against the removal of the wall. After denial of the injunction, Ghadiri removed the wall, then moved for summary judgment, asserting that the Joneses’ adverse possession claim failed because they had not paid property taxes on the disputed property and that a prescriptive easement was unavailable because it would result in his complete exclusion. After granting summary judgment to Ghadiri on the claim for adverse possession, the trial court noted that the Joneses’ claim for a prescriptive easement was “essentially a meshing of adverse possession with a prescriptive easement.” Given the dearth of Nevada caselaw on the availability of such easements, the trial court considered cases from neighboring states, such as California and Arizona. Following those cases, the court determined that a prescriptive easement “simply cannot be so extensive as to create the practical equivalent of an exclusive possessory estate” and that adverse use, as an element of a claim for a prescriptive easement, “cannot result in the complete exclusion of the owner of the servient estate.” Finding that no exceptional circumstances justified the Joneses’ requested prescriptive easement, the trial court granted summary judgment to Ghadiri on the easement claim. On the Joneses’ appeal, the supreme court affirmed. It noted that claims for title based on adverse possession and a prescriptive easement had become muddled in the law and that it was necessary to distinguish the concepts before considering the Joneses’ claim for a prescriptive easement. Although adverse possession is a doctrine giving title to land to the claimant, an easement—whether prescriptive, implied, or otherwise—grants a non-possessory interest that entitles the easement owner to make a limited use or enjoyment of another person’s land. Here, the Joneses asserted a claim for a prescriptive easement, but their requested relief aligned with adverse possession, demanding more than the mere use of the disputed property; in fact, they sought exclusive control of it. The trouble for the Joneses, as recognized by the trial court, was that they had not paid the requisite property taxes on the disputed property. It appeared that the Joneses were seeking title by adverse possession under the guise of an extraordinary prescriptive easement, known as a “comprehensive prescriptive easement,” which, unlike a typical easement, results in the owner of the servient estate being completely excluded from the subject property. Although the court did not recognize the claim in this case, it nonetheless noted that comprehensive prescriptive easements exist in some other states and went on to clarify when they might arise in Nevada. The court noted that the many jurisdictions, including Arizona, Florida, Idaho, Montana, and Utah, that have categorically rejected comprehensive prescriptive easements did so for two reasons. They blur the distinction between adverse possession and easements, and they subvert the tax-payment requirement for adverse possession. California, however, has recognized that a comprehensive prescriptive easement may be warranted in exceptional circumstances, including a socially important duty of a utility to provide an essential service, such as water or electricity, or when public health or safety is at issue. Although there is no exhaustive list of exceptional circumstances that will justify a comprehensive prescriptive easement, the determination being generally a fact-intensive question, it was clear here that the Joneses’ claim failed— they had made improvements only to an RV parking space and the grant of a comprehensive prescriptive easement would deprive Ghadiri of nearly 600 square feet of usable space. Jones v. Ghadiri, 546 P.3d 831 (Nev. 2024).
FORECLOSURE: Claim that lender overcharged borrower for force-placed insurance owing to kickbacks from insurer is cognizable defense to foreclosure. Lewis obtained a mortgage loan for $384,000 from Hudson City Savings Bank (Hudson). After Lewis failed to pay his property taxes, Hudson paid them and thereafter increased Lewis’s monthly payment from $3,011 to $9,640. Lewis thereafter defaulted in making monthly payments and by failing to maintain his flood insurance policy. Hudson then purchased force-placed insurance coverage and added the premium to Lewis’s indebtedness. Hudson sued to foreclose, and Lewis filed an answer with five special defenses: fraud, breach of the implied covenant of good faith and fair dealing, unconscionability, unclean hands, and equitable estoppel. Except for equitable estoppel, the defenses were predicated on the allegation that Hudson charged Lewis more than its cost for the insurance. Lewis claimed that Hudson had an exclusive arrangement with the insurer, an indirect subsidiary, under which in exchange for the right to be the sole provider of force-placed insurance coverage, the insurer gave “kickbacks” to Hudson, which were not passed on to Lewis. The trial court rejected this defense, finding that Lewis’s allegations on the “kickback” scheme pertained to industry practice and did not relate to the validity or enforcement of his specific mortgage. The supreme court reversed. The court found Lewis’s answer included allegations of wrongdoing regarding his specific mortgage, i.e., that Hudson’s misconduct increased his overall debt beyond that which was necessary to protect Hudson’s interest in the property, even as he did not specify the extent of this increase. A reasonable inference from the answer was that Hudson’s kickback scheme was ongoing and on a broad scale and that because Lewis entered into the mortgage agreement with the alleged scheme in place, the mortgage agreement was invalid. M&T Bank v. Lewis, 312 A.3d 1040 (Conn. 2024).
LANDLORD-TENANT: Duty to repair does not require landlord to make regular inspections to find safety problems. In 2005, a tenant leased a home with a water heater and furnace located in the crawl space beneath the bathroom. While away from home in January 2017, the tenant was notified that the public service company and fire department were at the home investigating a neighbor’s report of smelling natural gas. In March 2017, the tenant noticed the smell while standing in the front yard, and the fire department and public service company returned to investigate further. The tenant did not inform the landlord of either incident. In April 2017, the tenant entered the bathroom and turned on the light switch, which triggered an immediate explosion causing him serious injury. Evidence indicated the pipe supplying gas to the furnace was severely rusted and corroded. The landlord had not inspected the property during the tenant’s occupancy, nor immediately before that time. It was also discovered that a hole had developed in the bathroom floor allowing a leak into the crawl space that contributed to the corrosion of the gas pipe. Although the tenant and the landlord spoke often during the tenancy, the tenant never discussed the bathroom floor issue with the landlord. The tenant sought damages for his injuries, asserting violation of the North Carolina Residential Rental Agreements Act, N.C. Gen. Stat. §§ 42-38 to -49, and breach of the implied warranty of habitability. The trial court granted summary judgment, dismissing all plaintiff’s claims. A split court of appeals reversed and remanded. A divided supreme court reversed. The supreme court noted that at common law the landlord ordinarily had no duty to repair and caveat emptor generally applied to leases. In 1977, the Act codified the implied warranty of habitability but did not render all common law obsolete. The Act instituted a landlord’s duty to repair but also implemented a notice requirement and retained the knowledge requirement found in the common law. Specifically, the Act requires landlords to make repairs only after receiving notice or acquiring actual knowledge of defects. Because the evidence indicated the tenant never notified the landlord of the gas issue, none of the tenant’s claims could be maintained. Terry v. Pub. Serv. Co.., 898 S.E.2d 648 (N.C. 2024).
MINERAL RIGHTS: Conveyance of lots adjoining right of way transfers title to mineral estate to centerline of right of way. In 1974 and 1975, a developer platted and subdivided pastureland into three parcels. To access the individual parcels, the developer dedicated a road (11th Street) to the city and sold all three parcels by the end of 1975. None of the deeds included any reservation of mineral rights or any other interests. Over time, the three parcels were further subdivided and conveyed to new owners. In 2019—almost 45 years after the developer dedicated 11th Street and conveyed the parcels—the developer purported to convey to Great Northern Properties (GNP) its interest in the mineral estate beneath 11th Street. Shortly thereafter, GNP filed an action to quiet title to the mineral estate, naming as defendants the owners of the parcels abutting 11th Street and Extraction, a mineral developer with oil and gas leases from the individual parcel owners. Extraction’s leases gave it the right to drill and produce oil and gas from beneath 11th Street regardless of who owned the mineral estate, so GNP’s suit sought, at least in part, to determine to whom Extraction had to pay royalties. Extraction’s answer asserted that the developer’s conveyances of the parcels abutting 11th Street in 1974 and 1975 also conveyed the mineral estate to the centerline of the street, relying on a rule known as the “centerline presumption.” In response, GNP maintained that the centerline presumption did not apply to mineral rights and that it should not be expanded. The trial court agreed with Extraction, concluding that the centerline presumption applied so that the lot owners—not the developer—owned the mineral estate beneath 11th Street. The intermediate appellate court affirmed, explaining that a conveyance of land by general description, without any reservation of a mineral interest, passes title to both the land and the underlying minerals. The appellate court outlined a test to determine when the centerline presumption applies to a conveyance of land, i.e., the grantor conveyed ownership of land abutting a right-of-way, owned the fee underlying the right-of-way at the time of conveyance, and conveyed all the property it owned abutting the right-of-way; and no contrary intent appeared on the face of the deed. On further appeal, the supreme court agreed with the appellate court in part, concluding that a conveyance of land abutting a right-of-way is presumed to carry title to the centerline of the surface estate and the mineral estate below unless a contrary intent appears on the face of the deed, but stated that the centerline presumption does not require that the grantor divest itself of all the property it owns abutting the subject right-of-way. Applying these principles, the court held that the centerline presumption applied to the mineral estates at issue in this case. Great N. Props., LLLP v. Extraction Oil & Gas, Inc., 547 P.3d 1110 (Colo. 2024).
PROPERTY TAX: Taxpayer is not required to pay disputed property taxes before appealing tax assessment. In 2014, the Jackson County assessor imposed an assessed value of $33,445,837 on Grand Tower’s power plant property. In 2015, Grand Tower filed a timely appeal to the Property Tax Appeal Board, seeking a reduction. The Shawnee Community Unit School District, which receives funding from county property taxes, intervened in the appeal. While its appeal was pending, Grand Tower did not pay the taxes. In 2016, the county collector successfully applied for a judgment and sale order for the 2014 taxes and a third party purchased the 2014 taxes. In 2016, the school district filed an unsuccessful motion seeking the dismissal of Grand Tower’s appeal, asserting Grand Tower was required to pay taxes to pursue an appeal. In 2019, the board found Grand Tower, which had redeemed the 2014 and 2015 taxes in 2017, had proven that its property was overvalued for the years in dispute. The board reduced the assessed value for those years by roughly 90 percent. The appellate court affirmed, and the school district further appealed the board’s denial of its motion to dismiss. The supreme court affirmed. The court reviewed the statute governing property tax appeals, Ill. Consol. Code § 16-160, noting it nowhere states that a taxpayer must pay disputed property taxes to appeal an assessment. The section requires only that a petition be filed within 30 days of a local review board’s decision, regardless of whether any property tax payment is due. The 30-day deadline means that a taxpayer must in almost every instance initiate an appeal before the actual payments are due for the year in question. Also, language in the statute providing for a refund of taxes “if already paid” indicated conclusively that payment was not a prerequisite to an appeal. Shawnee Community Unit Sch. Dist. No. 84 v. Illinois Property Tax Appeal Board, 222 N.E.3d 214 (Ill. 2024).
TRESPASS: Cause of action accrues when reconstruction of culvert becomes observable on the land. In 2008, the City of Bristol reconstructed an existing culvert on Laviero’s property without permission and without obtaining an easement for the repair and reconstruction. In 2018, Laviero sued the city and its engineers on the project for trespass and nuisance. The district court granted summary judgment to the defendants because Laviero’s claims were time-barred under their respective statutes of limitations. The supreme court affirmed. In Connecticut, common-law tort claims are generally subject to a three-year statute of limitations, which runs from the date of the act or omission complained of. Conn. Gen. Stat. § 52-577. Moreover, whereas a permanent trespass gives rise to a claim from the time the trespass is created, a continuing trespass gives rise to successive causes of action each time there is an interference with a person’s property, such that the statute of limitations begins to run anew with each act. Here, as a permanent trespass, Laviero’s cause of action accrued once some portion of the harm became observable. The uncontroverted evidence was that Laviero first discovered and expressed her dissatisfaction with the size and appearance of the completed culvert in 2008 and again surveyed her property in 2010 after the completed culvert had encroached upon her property lines. Construing the facts most favorably to Laviero, the alleged trespass became observable, at the very latest, in 2010. Therefore, her trespass claims were time-barred. Further, the district court correctly held that Laviero could not demonstrate that her claims should be tolled because of fraudulent concealment by the city that prevented her from learning of the existence of her cause of action. See Conn. Gen. Stat. § 52-595. Although Laviero nominally contended that the city lulled her into waiting to seek relief in court, she failed to set forth any evidence from which she could demonstrate that the city intentionally concealed facts that were necessary to establish her cause of action or that they did so to delay her filing of a complaint. For the same reasons, the district court properly found that Laviero’s nuisance claim was barred by the two-year statute of limitations under Conn. Gen. Stat. § 52-584. Laviero v. City of Bristol, 2024 U.S. App. LEXIS 2340, 2024 WL 393004 (2d Cir. Feb. 2, 2024).
ZONING: City’s agreement with landowner violates contract zoning ordinance and state’s shoreline zoning statute. In 1980, George and Nancy Driscoll jointly acquired two adjacent lots, Lots 201 and 202. Lot 201 had a single-family residence, and Lot 202 was undeveloped. At the time, both lots were “grandfathered” non-conforming uses that did not comply with the City of Saco’s zoning ordinances. In 1986, George conveyed his interest in Lot 202 to Nancy, and Nancy conveyed her interest in Lot 201 to George. In 2009, the Driscolls applied for a permit to build a single-family residence on Lot 202, then owned only by Nancy. The code enforcement officer denied their application. The Zoning Board of Appeals and appellate courts affirmed the denial, finding that Lot 202 lost its grandfathered status as a buildable lot when it was held in common ownership with Lot 201 and that the Driscolls’ subsequent division of the parcels did not restore that status. The Driscolls then applied for a contract zoning agreement that would “legislatively establish” their land “as two separate buildable lots.” 30-A Me. Rev. Stat. § 4352(8); § 1403-2. The planning board held a public hearing to consider the request and recommended that the city council deny the application, which it did. But later, on November 20, 2017, the city council reversed course, voting to approve the application in a “Contract Zone Agreement,” which purported to exempt Lots 201 and 202 from the zoning restrictions that made Lot 202 unbuildable. The agreement came with conditions: the Driscolls had to (i) obtain the consent of the EPA before connecting the new house to the city’s sewer system; (ii) obtain site plan approval from the Planning Board within one year (with a possibility of a one-year extension; and (iii) seek a building permit within two years (with a possibility of a one-year extension). Although the Driscolls secured site plan approval by the deadline, they failed to obtain a building permit by November 20, 2019, and did not make a written request to extend that deadline by another year. On June 9, 2021, two years after a sand dune permit, which was required to get a building permit under 38 Me. Rev. Stat. §§ 480B(1), (8), 480-C(1)-(2), was issued, Nancy requested additional time to seek a building permit. After several meetings, the City Council approved her request and entered into an “Amended Contract Zone Agreement,” dated September 13, 2021, which extended the deadlines by one year, but provided that the failure to meet them would render the agreement null and void. By this time, however, the site plan approval had lapsed, so Nancy re-applied for approval, which the Planning Board voted in favor of. On November 17, 2021, a neighboring landowner, Dahlem, filed a sixcount complaint against the City and Nancy, appealing the City’s approval of the 2021 agreement. The court entered judgment for Dahlem, declaring that the 2017 agreement became null and void in 2019 and thereafter could not be amended or extended and also that it was otherwise invalid and unlawful for noncompliance with the City’s contract zoning ordinance, as well as inconsistent with the state’s Mandatory Shoreland Zoning statute. The supreme judicial court affirmed. It ruled that although a contract zoning agreement is a “legislative act,” which amends a municipality’s zoning laws, it is still a contract. Applying rules of contract interpretation, the court concluded that the 2017 agreement clearly required the Driscolls to apply for a building permit by November 20, 2019. Here, the Driscolls did not apply for a permit, nor “seek” an extension, and nothing in the facts supported any tolling of the deadline. The contract term “null and void” meant the agreement would have no legal effect and was not simply voidable, by the failure to meet the deadlines. After the deadline had passed, the City could not “waive” the agreement back into existence. Moreover, the 2021 agreement was unlawful because it did not adhere to the required procedures, including first being considered by the Planning Board and supported by specific findings regarding compliance with the comprehensive plan, existing and permitted uses, and appropriate conditions. Me., Zoning Ordinance § 230-1705(C)-(G). Finally, the agreement was invalid because it purported to allow residential development on a shoreline lot that did not conform to the “minimum guidelines” enacted by the state Board of Environmental Protection. 38 Me. Rev. Stat. §§ 435, 438-A(1)-(2), as to size and amount of frontage area. Dahlem v. City of Saco, 314 A.3d 280 (Me. 2024).
LITERATURE
HOUSING: Even as the Fair Housing Act of 1968 has been the law for more than 50 years, fair access to housing is still a fraught proposition. Many lament that litigation is inadequate to address the lingering effects of de facto discrimination, instead arguing that personal and political strategies are the only viable tools. In Better Late Than Never: The Equitable Power of Federal Courts to Remedy Harms Caused by Historical Housing Discrimination, 57 UIC L. Rev. 507 (2024), Prof. Andrew Darcy challenges the proposition that the federal judiciary is impotent to address the legacies of historical discrimination in housing access. He does so by contending that when the proper conditions are present, federal courts can and should use their equitable powers to address contemporary, community-wide harms that are linked to past, government-backed housing discrimination. Describing the equitable powers of the federal government to address violations of constitutional rights as “vast,” he recites a number of scenarios where this worked, including cases in which a federal court required a county to address the issue of homelessness and ordered the Department of Housing and Urban Development (HUD) to end segregation of government-supported housing. By these rulings, Prof. Darcy claims, the courts are addressing the vestiges of historical housing discrimination, even without a showing of present intent to harm. Deploying equitable remedial powers, the courts reject the status quo that would leave past wrongful conduct to perpetuate social and economic inequities. Projecting further, Prof. Darcy ponders whether, if it is shown that a local government had contributed to the segregation of a community of color by relegating it to an area zoned for industrial use, an action under the HUD’s Affirmatively Furthering Fair Housing rule could be brought. As a remedy, the court might order rezoning. Or, if eminent domain was used in a discriminatory manner, he wonders whether redress might require community reinvestment and economic development. Many such scenarios might be candidates for equitable relief.
MORTGAGES: In Consumer Fraud, Home Financing, and the Erosion of Trust, 118 Nw. U. L. Rev. 115 (2023), Prof. Emeritus Linda E. Fisher reviews the modern expansion of the capitalistic misrepresentation of goods and services and its concomitant effect on the mental welfare of the general citizenry. “Transactionalism,” as she labels it, evidenced by the increased monetization and commodification of nearly every aspect of consumerism, steadily shrinks public trust as merchants ruthlessly manipulate prospective buyers by way of technological tracking through social media apps and related means. As one would expect, the harms associated with these activities fall disproportionately upon the have-nots of society. Low-income consumers are already economically challenged by the many barriers to affordable housing and consumer fraud in the home lending context. Although there have been attempts to address mortgage fraud, pressure steadily builds for a more robust, broader utilization of corrective measures. Prof. Fisher begins by noting that “consumers” are far from monolithic, recognizing that education, finances, socialization, and similar factors segment society in ways that many past and recent examinations of consumer habits ignore. Consumers falling on the lower end of the spectrum relative to such factors correspondingly fall on the higher end of skepticism and loss of trust in the marketplace. Prof. Fisher notes that home lending fraud was a direct cause of the Great Recession and the global financial meltdown of 2008, when many powerful wrongdoers in the mortgage and banking industries exploited the disadvantaged, leading to massive debt on substandard properties. Trust in financial institutions plummeted, a condition that she states the country has never recovered from. Prof. Fisher also looks at the resurgence of land contracts, chronicling their origin more than one hundred years ago, their prevalent use with minorities as a discriminatory way of limiting them from accruing wealth via private property ownership, limitations on them in the 20th century, and the unfortunate more current resurrection of them since our last foreclosure crisis. She notes the many ways in which the uniformed and unassisted find themselves deceived by various terms in these purported financing alternatives, causing individuals to lose significant sums on misplaced investments. Prof. Fisher points to legislative responses such as the Dodd-Frank Act, the Consumer Financial Protection Bureau (CFPB), and the Secure and Fair Enforcement for Mortgage Licensing Act (SAFE Act), as vehicles that have provided more recent oversight of the mortgage lending landscape. She asserts that more needs to be done, however, especially to protect minorities in the wake of new challenges such as the COVID-19 pandemic and bank failures. Additionally, legislation has not yet addressed land contracts, exemplifying how responses to unscrupulous marketing are often too slow to prevent harm to the most vulnerable. Without faster and broader responses, consumer trust will continue to fade, and consumers at all points on the spectrum will ultimately suffer as a result.
SUBMERGED LAND: Who owns permanently submerged land when the submergence occurs because of gradual erosion, subsidence, and sea-level rise— the state or private landowners? Prof. John Lovett, in Ownership of Submerged Land on the Louisiana Coast: Resolving the DualClaimed Land Dilemma, 84 La. L. Rev. 905 (2024), makes the case in favor of the state. In an exhaustive treatment of classic property law theory and the particular laws of Louisiana, he concludes that when land becomes permanently submerged beneath the Gulf of Mexico, an arm of the sea, or a navigable river or lake as a result of gradual erosion, subsidence, or sea level rise, that land generally becomes a public thing owned by the state. He states further that when this change in ownership takes place without any affirmative, artificial intervention by the state, the state does not, and should not, owe compensation to the former private landowners. In a time when ocean surges and sea level rise are becoming an increasing problem, this issue of submerged lands is emerging as an area of contention, and this article goes far in resolving competing claims.
WATER: In Moving Water: Managed Retreat of Western Agricultural Water Rights for Instream Flows, 49 Colum. J. Envtl. L. 249 (2024), Profs. Stephanie Stern and A. Dan Tarlock describe how the existing western water allocation policies and the system of state and private water ownership, largely the result of the post-Civil War responses to illegal gold and silver mining, thought necessary to encourage western settlement, are out of sync with the modern urbanized West, as well as with present environmental challenges. They assert that the persistent megadrought threatens agriculture as we know it. They propose a novel program whereby the federal government would acquire some western water rights from agricultural holders, just as it has acquired homes in residential “managed retreat” programs, and dedicate those rights to instream flows. Under this scheme, the federal government would reassert a federal role in western water allocation, which they claim accords with current needs as well as history.
LEGISLATION
GEORGIA gives owners an action against persons recording false or forged deeds. An owner may bring an action to recover actual damages or $5,000, whichever is greater, as well as costs and attorney’s fees. 2024 Ga. Law 549.
FLORIDA enacts My Safe Florida Condominium Pilot Program. The program offers licensed inspectors for grants and hurricane mitigation efforts. Participation in the program requires a majority vote of the board of administrators or voting interests in the condominium. 2024 Fla. Laws ch. 208.
MAINE requires notice to property owners in tax foreclosure of entitlement to surplus. The amendments prescribe the form and procedures for giving notice. 2024 Me. Laws 640.
MARYLAND requires disclosures by sellers of property located within one mile of a superfund site. After receipt of a contract addendum identifying the site as being on the National Priorities List, a purchaser may rescind the contract and receive a full refund of monies paid on the contract. 2024 Md. Laws 352.
MARYLAND amends landlord-tenant laws to require shielding of court records. Records are shielded as a matter of course in proceedings in which no judgment of possession was entered and upon a special showing where possession was granted. 2024 Md. Laws 347.
MARYLAND prohibits the wrongful recording of a deed or other instrument. A person so acting can be charged with a misdemeanor and subject to a fine of $500. 2024 Md. Laws 369.
