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

CASES

BANKRUPTCY: Chapter 13; tenants by the entirety. When a debtor and his nondebtor wife were found jointly liable for a secured debt, their property held as tenants by the entirety could be reached. The entire proceeds (not just half) from sale of the property would be property of the estate subject to the debtor's homestead and wild card exemptions. A Chapter 13 plan that included only a one-half interest in the proceeds of sale did not satisfy the "best interest of creditors" test. In re Van Der Heide v. LaBarge, 219 B.R. 830 (8th Cir. 1998).

BOUNDARIES: Registered land. Under Minnesota's Torrens system, which is designed to establish an indefeasible title immune from future adverse claims and encumbrances not noted on the certificate, a court may not determine boundary lines in a proceeding after the initial registration if that determination would alter the legal description of the land as stated in the certificate of title. In re Petition of Geis, 576 N.W.2d 747 (Minn. Ct. App. 1998).

ENVIRONMENT: Clean Water Act. The CWA provides for citizen suits against EPA to compel performance of nondiscretionary duties, but a citizen suit cannot be brought against EPA for failing to veto a  § 404 permit because the veto authority is discretionary. The CWA proviso also does not authorize suits against the Corps of Engineers. Hill v. Boy, 144 F.3d 1446 (11th Cir. 1998).

FAIR HOUSING ACT: Discrimination by tenants. Although no specific provision of the Fair Housing Act was deemed violated, it provided the basis for a cause of action by tenants against other tenants who coerced, intimidated, threatened or interfered with the aggrieved tenants' exercise of rights protected by the FHA. Ohana v. 180 Prospect Place Realty, 996 F. Supp. 238 (E.D. N.Y. 1998).

FAIR HOUSING ACT: Limits on use by tenants' children. Provisions limiting children's use of the apartment facilities were held to be discriminatory against families with children and, therefore, a violation of the Fair Housing Act. The court said the limits were not the least restrictive means for pro-tecting the children and maintaining quiet. Fair Housing Congress v. Weber, 993 F. Supp. 1286 (C.D. Calif. 1997).

FAIR HOUSING ACT: Occupancy limits. Ordinances limiting the number of occupants based on the minimum number of square feet per unit were within the Act's exemption for reasonable restrictions on the number of occupants permitted to occupy a dwelling. Fair Housing Advocates Assoc. v. City of Richmond Heights, 988 F. Supp. 825 (N.D. Ohio 1998).

FAIR HOUSING ACT: Parking for disabled tenant. When the landlord provides both free parking and reserved parking for a fee, providing a reserved parking space for a fee to a disabled tenant is not a reasonable accommodation. The reserved space near the disabled tenant's apartment should be furnished without charge. Hubbard v. Samson Management Corp., 994 F. Supp. 187 (S.D.N.Y. 1998).

INCOME TAXATION: Principal residence. The U.S. Court of Claims ruled that whether a property is used as a principal residence for the requisite three out of five years pursuant to Code § 121 does not depend solely on physical occupancy but instead is determined under a "facts and circumstances" analysis, which includes the taxpayer's good faith. Gummer v. United States, 40 Cl. Ct. 812 (1998).

JOINT BANK ACCOUNTS: Modification. On an issue of first impression in Nebraska, the court of appeals concluded that once a joint account has been established, the exclusive method for altering or modifying the account is by a signed written order or direction to the bank. Thus one joint account holder's oral instruction to add her daughter to the signature card did not defeat the other joint account holder's survivorship right to the account when the first account holder died. Linehan v. First Nat'l Bank of Gordon, 579 N.W.2d 157 (Neb. Ct. App. 1998).

JOINT TENANCY: Transfer to revocable trust. A husband's transfer of his interest in property held in joint tenancy with his former wife to a revocable trust severed the joint tenancy and established a tenancy in common. Smolen v. Smolen, 956 P.2d 128 (Nev. 1998).

LANDLORD AND TENANT: Agreement to lease. The putative landlord and tenant agreed to a lease of property that the landlord would acquire. Before the landlord obtained the property, the tenant repudiated the agreement. Obtaining the property was not a condition to the landlord's obligations; therefore, the agreement was binding on both. The landlord recovered substantial damages for the tenant's breach. Rizika v. Donovan, 695 N.W.2d 1097 (Mass. Ct. App. 1998).

LANDLORD AND TENANT: Holdover by tenant; Chapter 13. Under Ohio law, when a lease provides an option to renew, a tenant who holds over is deemed to have made an election to renew that binds both landlord and tenant. In a tenant's Chapter 13 bank-ruptcy, the landlord was entitled to claim four months' rent based on the tenant's failure to give notice required under the lease. In re Kindinger, 219 B.R. 214 (N.D. Ohio 1998).

LANDLORD AND TENANT: Per diem late fees. Per diem late fees of $5 in addition to a stipulated late fee of $20 were deemed to be a penalty and, therefore, unenforceable under Oklahoma law. Sun Ridge Investors, Ltd. v. Parker, 956 P.2d 876 (Okla. 1998).

LANDLORD AND TENANT: Smoke detectors. Interpreting South Dakota law, the Eighth Circuit concluded a landlord has no common law or statutory duty to install a smoke detector in a rental house. Schiernbeck v. Davis, 143 F.3d 434 (8th Cir. 1998).

LANDLORD AND TENANT : Subtenant. When someone other than the lessee occupies the premises in the guise of a subtenant and pays the rent stipulated in the lease directly to the landlord, the landlord has the exclusive prerogative to treat the occupant as its tenant, thus binding both itself and the occupant to the conditions of the lease for the unexpired term. Allen v. Peachtree Airport Park Joint Venture, 499 S.E.2d 690 (Ga. Ct. App. 1998).

PROFITS: Rule Against Perpetuities. Citing cases from various jurisdictions, a Michigan court recently concluded that a profit a prendre is a vested property interest to which the rule against perpetuities does not apply, even if the profit holder has not yet exercised his rights. Hubscher & Son, Inc. v. Storey, 578 N.W.2d 701 (Mich. Ct. App. 1998).

REPURCHASE OPTION: Rule Against Perpetuities applicable. When property is held as tenancy in common with a repurchase option unlimited as to time of exercise, the option violates the common law rule against perpetuities, is void and does not effect a waiver of the right to partition. Nash v. Scott, 966 S.W.2d 936 (Ark. Ct. App. 1998).

ZONING AND PLANNING: Intergovernmental conflicts. The planning board of a neighboring town had no standing to challenge a decision of a town's zoning board. The statutory provision that "any municipal officer or board may appeal" is limited to officers and boards in the municipality where the planning board has jurisdiction. Planning Board of Marshfield v. Zoning Board of Appeals of Pembroke, 695 N.E. 2d 650 (Mass. 1998).

ZONING AND PLANNING: Rezoning subject to referendum. After noting that the city's general plan for land use was not "legislation," the court held that a rezoning ordinance was not an "administrative act" but was a "legislative act" subject to referendum. Fritz v. City of Kingman, 957 P.2d 337 (Ariz. 1998).

ZONING AND PLANNING: Signs. On a question of first impression, the Ninth Circuit concluded § 1221(b) of the Lanham Act prohibits a municipality from enforcing a zoning ordinance that requires alteration of a registered trademark. A municipality may, however, prohibit the display of a registered mark. Blockbuster Videos, Inc. v. City of Tempe, 141 F.3d 1295 (9th Cir. 1998). A later federal district court ruling came to the opposite conclusion. Lisa's Party City, Inc. v. Town of Henrietta, 2 F. Supp. 2d 378 (W.D.N.Y. 1998).

LITERATURE

  • Environment and crimes. Roger D. Masters examines whether absorption of environmental pollutants such as neurotoxic metals is among the environmental risk factors for violent crime in Environmental Pollution and Crime, 22 Vt. L. Rev. 359 (1997).
  • Fair Housing Act. In The Parma Housing Racial Discrimination Remedy Revisited, 45 Clev. St. L. Rev. 235 (1997), W. Dennis Keating examines federal judicial intervention aimed at eliminating housing discrimination by municipalities.
  • Fair Housing Act and group homes. In The State Giveth and the Court Taketh Away: Preserving the Municipality's Ability to Zone for Group Houses under the Fair Housing Amendments Act of 1998, 59 U. Pitt. L. Rev. 193 (1997), Brian E. Davis concludes, "the courts' activist approach for placing group homes in residential areas has ended one of the most essential functions of local government_the zoning of property." In Protecting Group Homes for the Non-Handicapped: Zoning in the Post-Edmonds Era, 46 U. Kan. L. Rev. 777 (1988), Michael J. Davis and Karen L. Gans review the current status of the law and conclude that state legislation is needed to protect non-handicapped groups such as children and "any additional adult groups the local government wishes to protect."
  • Historic preservation and the free exercise clause. In The Free Exercise Clause and Historic Preservation Law: Suggestions for a More Coherent Free Exercise Analysis, 72 Tulane L. Rev. 1767 (1998), Colin L. Black analyzes the competing interests between the free exercise clause and the benefits of historic preservation.
  • Landlord and tenant: Legislative reform. In West Virginia Landlord and Tenant Law: A Proposal for Legislative Reform, 100 W. Va. L. Rev. 389 (1997), Richard L. Costella and Christopher S. Morris discuss the evolution of landlord-tenant law in West Virginia and elsewhere.
  • Takings: Mahon revisited. William Michael Treanor, in Jam for Justice Holmes: Reassessing the Significance of Mahon, 86 Geo. L.J. 813 (1998), opines that Holmes' approach is more coherent than current case law, which he describes as a "mess." There are responses by Richard A. Epstein and Robert Brauneis followed by a reply by Treanor. For those concerned with "takings" issues, these articles offer significant insights.
  • Urban planning and universities. In Perspectives on Causes and Cures for Urban Decay: The Role of
  • University Urban Planning Departments in Community Building, 30 Conn. L. Rev. 1301 (1998), part of a symposium on the university's role in addressing problems facing American cities, Elizabeth Deakin discusses university-community partnerships to combat urban decay.
  • Zoning and planning. A recent symposium on planning and zoning in The Urban Lawyer includes articles by Gideon Kanner (regulatory takings); Patricia E. Salkin (ethics and planning); Christopher D. Bowers (historic preservation and private property); Julian Conrad Juergensmeyer, James C. Nicholas and Brian D. Leebrick (transferable development rights); and Joseph G. Werner (NIMBY). 30 Urb. Law. 307 (1998).

LEGISLATION

  • Georgia enacts the "Hazardous Site Reuse and Redevelopment Act." The act exempts certain innocent prospective purchasers of brownfield sites from liability for state-imposed remediation costs and tort liability to third parties. It also provides a CERCLA-like exemption from remediation cost liability for creditors who hold a security interest in the realty or take title through foreclosure without actively participating in management of such sites. Ga. Stat. § 12-8-201 et seq.
  • Georgia enables transfer of development rights. Local governments may adopt ordinances that permit owners of land appropriate for conservation to sell the development rights, and such rights may then be attached to other land in the jurisdiction. Ga. Stat. § 36-66A-1 et seq.
  • Idaho prohibits exclusion of manufactured homes through zoning and other regulations. The law prohibits local authorities from adopting or enforcing land use regulations explicitly aimed at preventing the development of sites with 10 or more manufactured homes. Idaho Code § 67-6509B. Another new law requires rehabilitation of pre-1976 mobile homes. Mobile homes manufactured before the imposition of federal standards in 1976 must be upgraded to meet certain electrical, plumbing and fire standards. Idaho Code § 44-2501.

Readers interested in a comprehensive review of current developments in real estate law are encouraged to subscribe to the ABA Real Estate Quarterly Report, which is prepared by the Real Property Division's Decisions Committee. For more information on this publication, contact Pam Hollins at (312) 988-5651.

Keeping Current_Property Editor: Nicholas L. White, School of Law, University of Memphis, Memphis, TN 38152. Contributing editors: Ralph Brashier and Robert Flores.

Keeping Current - Property

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

CASES

BANKRUPTCY: Chapter 13; tenants by the entirety. When a debtor and his nondebtor wife were found jointly liable for a secured debt, their property held as tenants by the entirety could be reached. The entire proceeds (not just half) from sale of the property would be property of the estate subject to the debtor's homestead and wild card exemptions. A Chapter 13 plan that included only a one-half interest in the proceeds of sale did not satisfy the "best interest of creditors" test. In re Van Der Heide v. LaBarge, 219 B.R. 830 (8th Cir. 1998).

BOUNDARIES: Registered land. Under Minnesota's Torrens system, which is designed to establish an indefeasible title immune from future adverse claims and encumbrances not noted on the certificate, a court may not determine boundary lines in a proceeding after the initial registration if that determination would alter the legal description of the land as stated in the certificate of title. In re Petition of Geis, 576 N.W.2d 747 (Minn. Ct. App. 1998).

ENVIRONMENT: Clean Water Act. The CWA provides for citizen suits against EPA to compel performance of nondiscretionary duties, but a citizen suit cannot be brought against EPA for failing to veto a  § 404 permit because the veto authority is discretionary. The CWA proviso also does not authorize suits against the Corps of Engineers. Hill v. Boy, 144 F.3d 1446 (11th Cir. 1998).

FAIR HOUSING ACT: Discrimination by tenants. Although no specific provision of the Fair Housing Act was deemed violated, it provided the basis for a cause of action by tenants against other tenants who coerced, intimidated, threatened or interfered with the aggrieved tenants' exercise of rights protected by the FHA. Ohana v. 180 Prospect Place Realty, 996 F. Supp. 238 (E.D. N.Y. 1998).

FAIR HOUSING ACT: Limits on use by tenants' children. Provisions limiting children's use of the apartment facilities were held to be discriminatory against families with children and, therefore, a violation of the Fair Housing Act. The court said the limits were not the least restrictive means for pro-tecting the children and maintaining quiet. Fair Housing Congress v. Weber, 993 F. Supp. 1286 (C.D. Calif. 1997).

FAIR HOUSING ACT: Occupancy limits. Ordinances limiting the number of occupants based on the minimum number of square feet per unit were within the Act's exemption for reasonable restrictions on the number of occupants permitted to occupy a dwelling. Fair Housing Advocates Assoc. v. City of Richmond Heights, 988 F. Supp. 825 (N.D. Ohio 1998).

FAIR HOUSING ACT: Parking for disabled tenant. When the landlord provides both free parking and reserved parking for a fee, providing a reserved parking space for a fee to a disabled tenant is not a reasonable accommodation. The reserved space near the disabled tenant's apartment should be furnished without charge. Hubbard v. Samson Management Corp., 994 F. Supp. 187 (S.D.N.Y. 1998).

INCOME TAXATION: Principal residence. The U.S. Court of Claims ruled that whether a property is used as a principal residence for the requisite three out of five years pursuant to Code § 121 does not depend solely on physical occupancy but instead is determined under a "facts and circumstances" analysis, which includes the taxpayer's good faith. Gummer v. United States, 40 Cl. Ct. 812 (1998).

JOINT BANK ACCOUNTS: Modification. On an issue of first impression in Nebraska, the court of appeals concluded that once a joint account has been established, the exclusive method for altering or modifying the account is by a signed written order or direction to the bank. Thus one joint account holder's oral instruction to add her daughter to the signature card did not defeat the other joint account holder's survivorship right to the account when the first account holder died. Linehan v. First Nat'l Bank of Gordon, 579 N.W.2d 157 (Neb. Ct. App. 1998).

JOINT TENANCY: Transfer to revocable trust. A husband's transfer of his interest in property held in joint tenancy with his former wife to a revocable trust severed the joint tenancy and established a tenancy in common. Smolen v. Smolen, 956 P.2d 128 (Nev. 1998).

LANDLORD AND TENANT: Agreement to lease. The putative landlord and tenant agreed to a lease of property that the landlord would acquire. Before the landlord obtained the property, the tenant repudiated the agreement. Obtaining the property was not a condition to the landlord's obligations; therefore, the agreement was binding on both. The landlord recovered substantial damages for the tenant's breach. Rizika v. Donovan, 695 N.W.2d 1097 (Mass. Ct. App. 1998).

LANDLORD AND TENANT: Holdover by tenant; Chapter 13. Under Ohio law, when a lease provides an option to renew, a tenant who holds over is deemed to have made an election to renew that binds both landlord and tenant. In a tenant's Chapter 13 bank-ruptcy, the landlord was entitled to claim four months' rent based on the tenant's failure to give notice required under the lease. In re Kindinger, 219 B.R. 214 (N.D. Ohio 1998).

LANDLORD AND TENANT: Per diem late fees. Per diem late fees of $5 in addition to a stipulated late fee of $20 were deemed to be a penalty and, therefore, unenforceable under Oklahoma law. Sun Ridge Investors, Ltd. v. Parker, 956 P.2d 876 (Okla. 1998).

LANDLORD AND TENANT: Smoke detectors. Interpreting South Dakota law, the Eighth Circuit concluded a landlord has no common law or statutory duty to install a smoke detector in a rental house. Schiernbeck v. Davis, 143 F.3d 434 (8th Cir. 1998).

LANDLORD AND TENANT : Subtenant. When someone other than the lessee occupies the premises in the guise of a subtenant and pays the rent stipulated in the lease directly to the landlord, the landlord has the exclusive prerogative to treat the occupant as its tenant, thus binding both itself and the occupant to the conditions of the lease for the unexpired term. Allen v. Peachtree Airport Park Joint Venture, 499 S.E.2d 690 (Ga. Ct. App. 1998).

PROFITS: Rule Against Perpetuities. Citing cases from various jurisdictions, a Michigan court recently concluded that a profit a prendre is a vested property interest to which the rule against perpetuities does not apply, even if the profit holder has not yet exercised his rights. Hubscher & Son, Inc. v. Storey, 578 N.W.2d 701 (Mich. Ct. App. 1998).

REPURCHASE OPTION: Rule Against Perpetuities applicable. When property is held as tenancy in common with a repurchase option unlimited as to time of exercise, the option violates the common law rule against perpetuities, is void and does not effect a waiver of the right to partition. Nash v. Scott, 966 S.W.2d 936 (Ark. Ct. App. 1998).

ZONING AND PLANNING: Intergovernmental conflicts. The planning board of a neighboring town had no standing to challenge a decision of a town's zoning board. The statutory provision that "any municipal officer or board may appeal" is limited to officers and boards in the municipality where the planning board has jurisdiction. Planning Board of Marshfield v. Zoning Board of Appeals of Pembroke, 695 N.E. 2d 650 (Mass. 1998).

ZONING AND PLANNING: Rezoning subject to referendum. After noting that the city's general plan for land use was not "legislation," the court held that a rezoning ordinance was not an "administrative act" but was a "legislative act" subject to referendum. Fritz v. City of Kingman, 957 P.2d 337 (Ariz. 1998).

ZONING AND PLANNING: Signs. On a question of first impression, the Ninth Circuit concluded § 1221(b) of the Lanham Act prohibits a municipality from enforcing a zoning ordinance that requires alteration of a registered trademark. A municipality may, however, prohibit the display of a registered mark. Blockbuster Videos, Inc. v. City of Tempe, 141 F.3d 1295 (9th Cir. 1998). A later federal district court ruling came to the opposite conclusion. Lisa's Party City, Inc. v. Town of Henrietta, 2 F. Supp. 2d 378 (W.D.N.Y. 1998).

LITERATURE

  • Environment and crimes. Roger D. Masters examines whether absorption of environmental pollutants such as neurotoxic metals is among the environmental risk factors for violent crime in Environmental Pollution and Crime, 22 Vt. L. Rev. 359 (1997).
  • Fair Housing Act. In The Parma Housing Racial Discrimination Remedy Revisited, 45 Clev. St. L. Rev. 235 (1997), W. Dennis Keating examines federal judicial intervention aimed at eliminating housing discrimination by municipalities.
  • Fair Housing Act and group homes. In The State Giveth and the Court Taketh Away: Preserving the Municipality's Ability to Zone for Group Houses under the Fair Housing Amendments Act of 1998, 59 U. Pitt. L. Rev. 193 (1997), Brian E. Davis concludes, "the courts' activist approach for placing group homes in residential areas has ended one of the most essential functions of local government_the zoning of property." In Protecting Group Homes for the Non-Handicapped: Zoning in the Post-Edmonds Era, 46 U. Kan. L. Rev. 777 (1988), Michael J. Davis and Karen L. Gans review the current status of the law and conclude that state legislation is needed to protect non-handicapped groups such as children and "any additional adult groups the local government wishes to protect."
  • Historic preservation and the free exercise clause. In The Free Exercise Clause and Historic Preservation Law: Suggestions for a More Coherent Free Exercise Analysis, 72 Tulane L. Rev. 1767 (1998), Colin L. Black analyzes the competing interests between the free exercise clause and the benefits of historic preservation.
  • Landlord and tenant: Legislative reform. In West Virginia Landlord and Tenant Law: A Proposal for Legislative Reform, 100 W. Va. L. Rev. 389 (1997), Richard L. Costella and Christopher S. Morris discuss the evolution of landlord-tenant law in West Virginia and elsewhere.
  • Takings: Mahon revisited. William Michael Treanor, in Jam for Justice Holmes: Reassessing the Significance of Mahon, 86 Geo. L.J. 813 (1998), opines that Holmes' approach is more coherent than current case law, which he describes as a "mess." There are responses by Richard A. Epstein and Robert Brauneis followed by a reply by Treanor. For those concerned with "takings" issues, these articles offer significant insights.
  • Urban planning and universities. In Perspectives on Causes and Cures for Urban Decay: The Role of
  • University Urban Planning Departments in Community Building, 30 Conn. L. Rev. 1301 (1998), part of a symposium on the university's role in addressing problems facing American cities, Elizabeth Deakin discusses university-community partnerships to combat urban decay.
  • Zoning and planning. A recent symposium on planning and zoning in The Urban Lawyer includes articles by Gideon Kanner (regulatory takings); Patricia E. Salkin (ethics and planning); Christopher D. Bowers (historic preservation and private property); Julian Conrad Juergensmeyer, James C. Nicholas and Brian D. Leebrick (transferable development rights); and Joseph G. Werner (NIMBY). 30 Urb. Law. 307 (1998).

LEGISLATION

  • Georgia enacts the "Hazardous Site Reuse and Redevelopment Act." The act exempts certain innocent prospective purchasers of brownfield sites from liability for state-imposed remediation costs and tort liability to third parties. It also provides a CERCLA-like exemption from remediation cost liability for creditors who hold a security interest in the realty or take title through foreclosure without actively participating in management of such sites. Ga. Stat. § 12-8-201 et seq.
  • Georgia enables transfer of development rights. Local governments may adopt ordinances that permit owners of land appropriate for conservation to sell the development rights, and such rights may then be attached to other land in the jurisdiction. Ga. Stat. § 36-66A-1 et seq.
  • Idaho prohibits exclusion of manufactured homes through zoning and other regulations. The law prohibits local authorities from adopting or enforcing land use regulations explicitly aimed at preventing the development of sites with 10 or more manufactured homes. Idaho Code § 67-6509B. Another new law requires rehabilitation of pre-1976 mobile homes. Mobile homes manufactured before the imposition of federal standards in 1976 must be upgraded to meet certain electrical, plumbing and fire standards. Idaho Code § 44-2501.

Readers interested in a comprehensive review of current developments in real estate law are encouraged to subscribe to the ABA Real Estate Quarterly Report, which is prepared by the Real Property Division's Decisions Committee. For more information on this publication, contact Pam Hollins at (312) 988-5651.

Keeping Current_Property Editor: Nicholas L. White, School of Law, University of Memphis, Memphis, TN 38152. Contributing editors: Ralph Brashier and Robert Flores.


Probate & Property Magazine is published six times annually and is included in section members' annual dues.

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