Keeping Current: Property

Probate & Property Magazine: Volume 27 No. 06

Keeping Current—Property Editor: Prof. Shelby D. Green, Pace University School of Law, White Plains, NY 10603, sgreen@law.pace.edu. Contributors: Prof. Annie Decker, Prof. Bridget Fuselier, and Prof. Darryl C. Wilson.

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

CASES

ADMIRALTY: Floating home not vessel under federal maritime law when not practically capable of use for transportation. Lozman purchased a 12-foot floating structure with French doors and living quarters, which he towed to the city marina and used as his primary residence. Lozman docked there under a month-to-month dockage agreement. When a conflict arose, the city sought to evict Lozman. The court determined that Lozman held a nonresidential tenancy governed by Florida law and that the city had sought to evict him in retaliation for his efforts to scuttle a plan to redevelop the marina. Thereafter, the city adopted new rules for dockage that required vessels be registered, insured, and operational. After Lozman failed to bring his structure into compliance with the new rules, the city commenced an action in federal court under maritime law, alleging trespass and seeking foreclosure. Lozman sought dismissal of the federal action for lack of admiralty jurisdiction. The district court and court of appeals agreed with the city that the structure was a “vessel” under federal law because it was capable of movement over water, notwithstanding the owner’s subjective intention to dock it permanently. The Supreme Court reversed, finding the lower courts’ interpretation of federal maritime law too broad. Anything that floats is not a vessel; absurdly that might include a bathtub, an unhinged door, and a plastic dishpan. The Court focused on the language of the statute, “capable of being used, as a means of transportation on water,” 1 U.S.C. § 3, concluding that the structure, although theoretically capable, was not practically capable of carrying people or things over water. It had not been used primarily for that purpose. Although it floated, the structure had no rudder and no ability to propel itself. Instead of looking out through portholes, occupants experienced their vistas through French doors. Lozman v. City of Riviera Beach, 133 S. Ct. 735 (2013).

ADVERSE POSSESSION: Adverse possessor must plead and present evidence establishing physical bounds of claim. The Minors brought an action to eject Sandra, the former spouse of their son Tyson, from a certain tract of land. Sandra had possessed the disputed 23.72 acres since marrying Tyson and moving to the land with him in 1984. Tyson moved away in 2001 and began divorce proceedings in 2008, at which point the Minors brought suit. Sandra counterclaimed to quiet title to the entire tract by adverse possession. The jury found for the Minors. On appeal, Sandra challenged the trial court’s refusal to give a special instruction to allow the jury to find that she had possessed only a portion of the property. The supreme court affirmed, explaining that Sandra needed to show that her possession was under “known and visible lines and boundaries,” in which case her claim would be limited to the actual area possessed. Sandra was not entitled to the special jury instruction because she failed to plead adverse possession of a specific portion of the land or present evidence in that regard, instead merely testifying that the house and other buildings were on part of the lot generally corresponding to a buried fence with flags protruding from it. Her claim failed because she gave the jury no guidance on where to divide the property. Minor v. Minor, 742 S.E.2d 790 (N.C. 2013).

EMINENT DOMAIN: Just compensation for partial taking is reduced by reasonably calculable benefits conferred on owner’s remaining property. As part of a beach restoration and storm protection project, the borough condemned an easement through the Karans’ beachfront property. The project included the construction of a 22-foot-high dune, six feet higher than the existing dune. At issue was the method of computing just compensation. Although the appraisers were in agreement on the pre-condemnation value of the Karans’ property, they disagreed on the diminution of the remaining value as a consequence of the taking. The borough’s appraiser found no injury because the Karans’ view of the ocean was unimpaired by the dune. The Karans’ appraiser found that even though the ocean view remained, the view of the beach was obstructed. At trial, the court instructed the jury to disregard any general benefit flowing from the public project. The jury returned an award of $375,000 as compensation for the easement and for damages to the remainder of the property. The appellate division affirmed, applying the traditional general/special benefit rule, applicable in partial takings, that a general benefit, which the landowner enjoys in common with all other property owners in the area, cannot be used to decrease compensation. The appellate division found that the public project did not confer a special benefit on the Karans’ property because it did not permit any new or more lucrative use of the property or directly increase the value of the tract and also that there was no evidence that a prospective buyer would be willing to pay the same price for a house with a largely obstructed view because the house was safer from storm damage. Noting that the classic general/special benefit rule arose at a time when railroads were taking land and attempting to reduce compensation based on benefits from conjectural increases in commerce and population, the supreme court rejected its rote application in contemporary times. Speculative or conjectural benefits are properly ignored because they do not factor into the calculation of fair market value. But, reasonably calculable benefits that increase the property value, regardless of whether those benefits are enjoyed to some lesser or greater degree by others in the community, should be discounted from the condemnation award. While a willing purchaser of beachfront property would obviously value the view and proximity to the ocean, such purchaser also would likely place a value on a protective barrier that shielded the property from partial or total destruction. The trial court’s instruction to the jury to disregard general benefits from the dune project operated to distort the fair market valuation of the property by artificially withholding a key component of the analysis, that is, the quantifiable storm-protection benefits that would increase the value of the property. The Karans were “entitled to just compensation, but no more, and certainly not a windfall at the public’s expense.” Borough of Harvey Cedars v. Karan, 70 A.3d 524 (N.J. 2013).

FORECLOSURE: Remedy for wrongful foreclosure is to set aside sale rather than damages when borrower remains in possession and title to property has not passed to third party. Borrower filed suit against the lender to challenge a foreclosure sale that was conducted on a date not authorized by an agreed court order. The trial court entered judgment for the borrower, awarding damages and attorney’s fees, but denied the borrower’s claim that the lender forfeit all principal and interest paid on the loan. On appeal, the court agreed that the foreclosure sale conducted on a date other than one designated in the court order was wrongful but disagreed on the appropriate remedy. It was enough to set aside the foreclosure sale and resulting trustee’s deed because title to the property had not passed to a third party, the borrower remained in possession, and there was no evidence of other harm. Further, the wrongful foreclosure sale did not warrant lender’s forfeiture of principal and interest because the loan agreement between the bank and borrower complied with Texas constitutional requirements. Wells Fargo Bank, N.A. v. Robinson, 391 S.W.3d 590 (Tex. Ct. App. 2012).

LANDLORD-TENANT: Landlord not entitled to rent for remainder of term on tenant’s early termination absent acceleration clause. Landlord leased the “Old Store” to tenant for use as a liquor store for a seven-year term with rent payable monthly. The lease did not contain an acceleration clause. Four years into the lease, the tenant moved its operations to another building and several months later stopped paying rent on the Old Store. After failing to find a new tenant to lease the premises, when two years remained on the lease term the landlord sued the tenant to recover rent for the remainder of the term. The trial court granted the demand but did not consider the absence of an acceleration clause. In reversing, the supreme court observed that the issue was one of first impression, noting that it was unsettled whether, absent an acceleration clause, a nonbreaching party is entitled to recover the unpaid rent due through the time of (1) the filing of the lawsuit, (2) the trial, or (3) the court’s decision or judgment. Rather than adopt a particular rule, the court remanded to the trial court to determine the appropriate legal consequence. Bhole, Inc. v. Shore Inv., Inc., 67 A.3d 444 (Del. 2013).

MECHANIC’S LIEN: Failure to file building loan contract subordinates part of loan made for improvements, but not part made for land acquisition. Altshuler entered into a loan agreement to lend $10 million to GML to refinance a land acquisition loan and a development loan for a hotel complex. Altshuler agreed to disburse the proceeds in two tranches: $5.5 million to pay off the existing land loan and $4.5 million for improvements. A contractor and subcontractor began work on the building and filed notices of mechanic’s liens a few months later. One year later, Altshuler commenced a foreclosure action against GML, necessitating the determination of the relative priorities of the mortgages and mechanic’s liens. N.Y. Lien Law § 22 requires the filing of a building loan contract not later than the recording of a building loan mortgage made under it in the clerk’s office where the property is situated. Failure to file makes the interest of parties to the contract subject to properly filed mechanic’s liens. The N.Y. Court of Appeals affirmed the lower court’s finding that the agreement between Altshuler and GML was a building loan contract subject to the lien law and that it was not filed as required, but it disagreed on the reach of the “subordination penalty.” The high court held that, given the language and purpose of the lien law, to give contractors and material suppliers notice of how much money a building loan makes available for construction, the penalty extended to only that part of the loan made for the improvements. Altshuler Shaham Provident Funds, Ltd. v. GML Tower, LLC, 21 N.Y.3d 352 (2013).

NUISANCE: Wind turbine in residential subdivision, although not nuisance per se, is nuisance in fact. Sowers planned to build a 75-foot high wind turbine on his subdivision lot. The subdivision association sought a permanent injunction against the construction. At the injunction hearing, the district court heard testimony that the subdivision was “a very quiet area” and the turbine would produce noise equivalent to the “hum of a highway.” A contractor hired to build the turbine testified that there was no way to eliminate the turbine’s shadow flicker—the alternating shadows and light created while the turbine rotates in the sunlight. In addition, a property owner and realtor testified that construction of the turbine would diminish property value. The trial court visited a comparable wind turbine and determined that the noise produced was less than five decibels from 100 feet. Although one neighbor told the court that the turbine would not bother him, the trial court, astonished by the size of the turbine and its overall impression of gigantism, granted the permanent injunction. The Nevada Supreme Court affirmed. Noting the state’s strong policy favoring renewable energy sources, that the county building codes permitted turbine construction, and that some landowners find turbines unobjectionable, the court concluded that the proposed turbine was not a nuisance per se. The proposed turbine could still be enjoined, however, as a nuisance in fact, that is, a lawful activity conducted in an unreasonable and improper manner. In making the determination, the court balanced “the gravity of the harm to the plaintiff against the utility of the defendant’s conduct, both to himself and the community.” The court found that noise that would end the relative quiet of the subdivision, the gigantic stature (although aesthetics alone would not be determinative), the diminution in property value, and the shadow flicker would result in a significant imposition on the neighbors’ use of their land, while the only benefit (the energy credit) would enure to Sowers alone. The burdens far outweighed the utility of the turbine. Sowers v. Forest Hills Subdivision, 294 P.3d 427 (Nev. 2013).

RECORDING: “Wild deed” qualifies as “root of title” under marketable title act. In 1967, the grantor signed a deed conveying a utility easement as the president of a company that did not own the land. Although he owned the land in his individual capacity, this flaw made the deed a “wild deed.” More than 40 years later, the utility company maintained that it had marketable title to the easement under the Wyoming Marketable Title Act, Wyo. Stat. Ann. § 34-10-101, even though its root of title was a wild deed. The act cuts off adverse claims or interests that pre-date the effective date of the root of title. A “root of title” is a conveyance in the chain of title purporting to create the interest claimed and is the last transaction of record not less than 40 years at the time marketability is determined. The Wyoming Supreme Court agreed with the utility company that a wild deed could serve as a root of title so long as it does not bear a “defect on its face,” that is, an inherent defect in the chain of title; logically, a deed cannot be both a “root of title” and a defect. The court reached this result to further the statutory purpose to simplify and facilitate land title transactions by allowing reliance on the record chain to title. Proving that the deed was wild or defective would require interpretation of documents outside the 40-year period, thus contravening the purposes of the act. Esterholdt v. PacifiCorp, 301 P.3d 1086 (Wyo. 2013).

RIGHT OF FIRST REFUSAL: Tenant’s right of first refusal triggered by landlord’s sale of large tract that included leased premises. A tenant leased a half-acre tract situated within a larger 1,040-acre tract. Under the lease he had a right of first refusal should the landlord decide to sell “the premises.” The landlord sold the 1,040-acre tract to a buyer, who rejected the tenant’s attempt to exercise his right of first refusal. The lower court refused to grant specific performance to the tenant, adopting the majority rule under which the sale of a larger tract is not presumed a manifestation of intent to sell the smaller tract, and therefore does not trigger the right of first refusal on the smaller tract. The Hawai’i Supreme Court reversed, instead finding the minority rule more consonant with Hawai’i’s laws on contract interpretation. Under the minority rule, a sale of the larger parcel without honoring the right of first refusal over the smaller parcel constitutes a breach of contract; otherwise, the bargained-for right would be illusory. The court also found that the right of first refusal was not legally impossible on account of land use regulations that required approval before subdividing land. Reading the contract against the drafter, the court found that the language of the agreement, that the sale would be made “on terms and conditions provided by the [owner],” could be read to contemplate efforts to obtain subdivision approval with the costs added to the purchase price or some alternative ownership arrangement. Kutkowski v. Princeville Golf Course, LLC, 300 P.3d 1009 (Haw. 2013).

ZONING: State statutes on medical marijuana use and dispensaries do not preempt local land use regulations that ban dispensaries. The city of Riverside declared by zoning ordinance that a medical marijuana dispensary (MMD) is a prohibited use of land within the city and may be abated as a public nuisance. State law defines a MMD as a facility where marijuana is made available for medical purposes in accordance with the California Compassionate Use Act of 1996. The city obtained a preliminary injunction against an MMD facility operated by the defendants, who appealed, insisting the local ban was in conflict with, and thus preempted by, the act and the Medical Marijuana Program (MMP). The state supreme court noted that it had consistently maintained that the act and MMP are but incremental steps toward freer access to medical marijuana, and the scope of these statutes is limited and circumscribed. The act simply declares that no physician may be punished for recommending medical marijuana to a patient and that two state statutes regarding possession and cultivation do not apply to patients or their caregivers. Likewise the MMP only establishes a program for medical marijuana identification and specifies that certain individuals under particular circumstances are not liable for criminal prosecution. As such, no express or implied preemption could be found in the language of either statute for their contradiction of other state law or their ability to coexist with federal law. All that the statutes do is remove certain activity from prosecution under state criminal and nuisance laws and establish rights in patients and patient caregivers; they do not purport to intrude on the inherent local police power to determine desirable land uses, even when local regulation amounts to a total ban on such facilities within the jurisdiction. City of Riverside v. Inland Empire, 300 P.3d 494 (Cal. 2013).

LITERATURE

Common Interest Communities. While rights and limitations are set out in the governance instruments, the board of the homeowners’ association functions as the governing body of the common interest community—adopting and enforcing rules, adjudicating disputes, and meting out punishment. Because no governance instrument can anticipate every conflict that might arise in the future, disputes within the community are often personal and heated and resolution often is unsatisfying. When homeowners finally resort to the courts, the results are often equally unsatisfying. This is because a majority of courts simply defer to the judgments of the governing board, using the business judgment rule from the firm/shareholder context, as a model. In Judicial Deference and Institutional Character: Homeowners Associations and the Puzzle of Private Governance, 81 U. Cinn. L. Rev. 839 (2013), Prof. Michael C. Pollack suggests that this model is not only inapt but harmful, given the range of impacts that decisions by governing boards have on the lives of homeowners, substantially limiting personal choices and freedoms within the community. He demonstrates how the homeowners’ association and the publicly held firm are fundamentally different institutions in terms of the board’s accountability and stakeholders’ ability to exit and voice concerns. In place of the business judgment rule, Prof. Pollack believes the rules governing administrative agencies concerning the procedural requirements of notice, fact gathering, and reasoned decision making would best promote more careful and responsive governance.

Land Use and Water Management. Land use and water often intersect, but not always in policy. The two concerns, land and water, in many respects have been treated in parallel, not integrated, regimes. That is the point made by Jean L. Coleman and Prof. Suzanne Sutro Rhees, in Where Land and Water Meet: Opportunities for Integrating Minnesota Water and Land Use Planning Statutes for Water Sustainability, 39 Wm. Mitchell L. Rev. 920 (2013). This conclusion refers particularly to the state of Minnesota, which has more than 61,000 miles of lake shoreline and has adopted progressive sustainability policies. Still, local governments exercise land use planning and permitting authority with little oversight while water planning and permitting is spread broadly across multiple state agencies. Although a coordinated watershed-based planning finds support in the existing regimes, that scheme has not been mandated. As it stands, obstacles to its implementation include differences in the language of land use enabling statutes, leading to inconsistent decision making among cities, townships, and counties; and the fact that watersheds do not follow political boundaries, while cooperation across jurisdictional lines often has been absent. Despite the importance of the availability of water for development, water quality and availability are given only a perfunctory glance in land use planning. The authors challenge the state to mandate an integrated water planning and land use planning system, one that incorporates water-planning elements in statewide comprehensive plans and requires reciprocal coordination between the two regimes.

Property Rights and Energy. The imperatives and innovations in energy development have put increasing pressure on historical property arrangements, raising complex property law conflicts over rights and entitlements in wind currents, sunlight, underground mineral deposits, and subsurface pore space, to name a few. And, although some legislatures and courts are responding in measured ways to resolve the conflicts—reallocating ownership between the various interests in estates in land—there is more that must and can be done. In Property Rights and Modern Energy, 20 Geo. Mason L. Rev. 803 (2013), Prof. Troy A. Rule explores the ways that existing property-rights regimes have over time responded to social or technological changes. He states that the most equitable and efficient adjustments to property-rights regimes are those that respect rather than disregard property owners’ existing entitlements. In his view, the least disruptive approach is to resolve legal ambiguities about the scope and character of property rights as such ambiguities arise, because legal uncertainty can impose social costs when investment in valuable new property uses is discouraged and their rate of adoption is slowed. Among the adjustments that may be necessary for responsible and efficient energy use are converting the deep subsurface from private to common property to encourage carbon capture and storage; privatizing additional airspace for wind turbines; reallocating existing rights between parties, such as by free easements through airspace above neighboring land to encourage solar panel installation; limits on trespass actions for the effects of water cast off by hydrofracturing; and greater resort to liability rules over property rules. Prof. Rule urges that affirmative steps to realign property rights with existing values and societal needs, and not merely clarification of existing rules, are necessary to ensure a stable, sustainable energy future.

LEGISLATION

ARIZONArequires owners to give notice to tenants of foreclosure sale. An owner receiving a first notice of a trustee’s sale or other foreclosure notice, if received after a tenant has entered into a lease, must give the tenant written notice within five days. 2013 Ariz. Sess. Laws 224.

CALIFORNIA limits the recovery of deficiency judgments in certain transactions. The Code of Civil Procedure is amended to prohibit the collection of a deficiency or the issuance of a deficiency judgment in the following scenarios: the sale of property because the purchaser failed to complete the contract of sale, sales in the case of purchase money mortgages and owner-occupied dwellings, sales in the case of a refinanced loan unless new money is advanced, power of sale foreclosures, and sales involving a chattel mortgage and a deed of trust or mortgage securing payment of a combined purchase price of both real and personal property, if there would be no deficiency judgment for the real property interest alone. These provisions do not relieve a guarantor, pledger, or other surety of liability for the deficiency and do not apply when the deficiency can be satisfied in whole or in part from other collateral given to secure the obligation. 2013 Cal. Legis. Serv. 65.

CONNECTICUT provides for termination of lease by victims of sexual assault. The legislation permits a tenant who was the victim or guardian of a victim of sexual assault to terminate a lease early without liability, as long as 30-days’ notice is given. 2013 Conn. Acts 214.

DELAWAREamends landlord-tenant law regarding smoke detectors. The amendment specifies that tenants cannot tamper with or remove smoke or carbon monoxide detectors. 2013 Del. Laws 52.

DELAWAREacts to prevent “unreasonable and burdensome” space rental increases for manufactured housing. The legislation aims to balance the interest “of manufactured home community owners to receive a just, reasonable, and fair return on their property” while protecting renters from burdensome rent increases. The statute does so by restricting the conditions under which community owners can raise homeowners’ rent, tying increases to the consumer price index, providing mechanisms for resolving rent increase disputes, and setting penalties for unlawful rent increases. Exemptions are carved out, including one for resident-owned communities. 2013 Del. Laws 63.

FLORIDA imposes new criminal penalties for filing false documents. The filing of false documents relating to ownership, transfer, or encumbrance of or claim against real or personal property constitutes a felony in varying degrees. Such documents include judgments, mortgages, assignments, liens, deeds, and promissory notes. Filing or directing someone else to file a false instrument with intent to defraud or to harass another constitutes a third- degree felony; a consecutive violation constitutes a second-degree felony. The baseline punishment is increased in certain situations, such as when the target of the fraud is a public officer or employee. The statute also recognizes a civil cause of action for anyone injured by a recorded instrument that contains a materially false, fictitious, or fraudulent statement or representation. 2013 Fla. Laws 228.

FLORIDAexpands curative act. The amendment broadens the categories of conveyances and devises that are defective (lacking seals, witnesses, and so on) that nonetheless become effective after five years, unless fraud, adverse possession, or pending litigation is involved. The statute previously listed only deeds and devises in probate, but it now covers all instruments that are required by statute to be in writing and witnessed. The statute also applies to powers of attorney required to make such instruments effective and devises made in probate. Parties affected by these amendments have until October 1, 2014, to file a claim or defense to determine the validity of the relevant instruments; in such cases, the law in effect before the amendments applies. 2013 Fla. Laws 234.

FLORIDAamends laws regulating assignees’ deeds. Among other effects, the amendments cover the assignees’ rights to conduct the business of the assignor and to reject leases. 2013 Fla. Laws 244.

FLORIDA requires specific information from an adverse possessor. The law requires an adverse possessor to provide certain information to the property appraiser when claiming possession, including the dates of taxes paid and a notice provision. Unless the return is filed, occupation of the premises constitutes a trespass and leasing of the premises constitutes theft. 2013 Fla. Laws 246.

HAWAI’I allows rental security deposits to be used for damage caused by pets. The amendment specifies that rental deposits can be used to remedy damages caused by pets that the lease permitted if the lease includes the amount to be paid in the case of such damage. The damages are capped at one month’s rent. 2013 Haw. Legis. Serv. 206.

HAWAI’I clarifies the law regarding seller disclosure in common interest communities. The law applies to condominium projects, cooperative housing corporations, and other community associations and specifies documents that are required to be provided, including governance documents. It mandates disclosures within 10 days of receipt of the title report and permits electronic receipt of documents if the buyer consents. 2013 Haw. Legis. Serv. 186.

MISSOURI prohibits local governments from regulating mortgages. The amendment reserves to state and federal law the power to enact rules for the enforcement and servicing of real estate loans secured by a mortgage or deed of trust or other security instrument. In addition, no local law or ordinance can add, change, or delay any rights or obligations or impose fees or taxes of any kind or require payment of fees to any government contractor related to any of those instruments or affect the enforcement and servicing of them. 2013 Mo. HB 446.

NEW HAMPSHIRE regulates abandoned property in rental units. The act provides an affirmative defense to landlords when tenants have vacated the property with no intent to return. There is a rebuttable presumption of abandonment when landlords have given written notice under the statute and when two of the following four conditions have been met: the tenant notified the landlord in writing of his intent to vacate, and the specified date has passed; the tenant returned the keys; the tenant removed other possessions consistent with having moved out; or the tenant has not paid rent for a specified period. 2013 N.H. Laws 237.

NEW YORK requires a certificate of merit in residential foreclosure actions. In case of a home loan where the defendant resides in the same property, a complaint for foreclosure must be accompanied by a certificate, which the plaintiff’s attorney signs, certifying that the attorney has reviewed the case facts and believes, after consulting with the plaintiff’s representatives and after reviewing the relevant material (such as the mortgage, security agreement, and note or bond), that there is a reasonable basis for commencing the action and that the plaintiff is currently the creditor entitled to enforce rights. Relevant instruments of indebtedness must be attached either to the summons and complaint or to the certificate; if not, the attorney must submit supplemental affidavits attesting that such documents are lost by destruction, theft, or otherwise. Willful failure to submit the required documents can lead to dismissal or a final court order without prejudice and not on the merits. The plaintiff also must file proof of service within 20 days of service; a mandatory conference must be held within 60 days after the proof of service is filed unless the parties agree to another date. 2013 N.Y. Laws 306.

NORTH CAROLINA provides for accelerated decisions in summary ejectment actions. The amendment shortens the time in which magistrate judges in small claims court hearing summary ejectment actions must issue opinions, requiring a decision on the same day that all the evidence and legal authorities are submitted, subject to certain exceptions. Requirements for appeals and payment of court costs are also tightened. 2013 N.C. Sess. Laws 334.

PENNSYLVANIA amends condominium regulations. The amendments cover the content of condominium declarations and time limits for filing and completing phases of the development. 2013 Pa. Laws 37.

RHODE ISLAND requires mediation before mortgage foreclosure. The act amends the mortgage foreclosure and sale provisions by providing a new uniform standard for an early HUD-approved independent counseling process in owner-occupied principal residence mortgage foreclosure cases, to improve outcomes for homeowners and lenders. 2013 R.I. Pub. Laws 325.

RHODE ISLAND creates a property assessed clean energy program (PACE) for residential buildings. PACE is a voluntary financing mechanism that allows homeowners to access affordable, long-term financing for energy upgrades to their properties. Homeowners pay back the clean energy loans through assessments on their properties that transfer to subsequent homeowners. The liens are subordinate to all others on the property at the time the lien is filed and superior to others recorded after that date. 2013 R.I. Pub. Laws 361.

RHODE ISLAND requires notice in eminent domain proceedings against property with conservation or preservation restrictions. The act specifies that when eminent domain is exercised over property on which a conservation or preservation restriction is placed, the state or local agency must notify the holder of the restriction as well as the Rhode Island Department of Environmental Management and the fee owners, explaining the public purpose justifying the condemnation. 2013 R.I. Pub. Laws 427.

SOUTH CAROLINA creates incentives for the rehabilitation of abandoned buildings. The new statute provides eligible taxpayers with either (1) a credit against state income taxes, state corporate license fees, or state taxes on associations, or a combination thereof or (2) a credit against real property taxes levied by local taxing entities. 2013 S.C. Acts 57.

TEXAS amends its Property Code to expand protections for tenants who are victims of sexual assault. The amendment adds options for terminating leases on the basis of attempted assault or abuse and on the basis of stalking offenses. 2013 Tex Sess. Law Serv. 593.

TEXAS permits the use of unmanned aircraft to take photographs of property. The law applies in a range of situations—not only by members of higher education institutions for research and by law enforcement officers, but also by public utilities companies when assessing vegetation growth for the purpose of maintaining clearances on utility easements, and by Texas licensed real estate brokers in connection with the marketing, sale, or financing of real property, as long as no individual is identifiable in the image. Illegal use of unmanned aircraft, including for the purpose of surveillance of individuals or properties, is subject to penalties. 2013 Tex. Sess. Law Serv. 1390.

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