P R O B A T E   &   P R O P E R T Y
July/August 2005
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Department

Keeping Current—Property

  Keeping Current—Property Editor: Prof. Daniel B. Bogart, Chapman University School of Law, One University Drive, Orange, CA 92866, bogart@chapman.edu. Contributing editors: Prof. James C. Smith andProf. William G. Baker.

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

 

  ADVERSE POSSESSION: Grantee does not lose title by failing to take possession for over 30 years. In 1967, a landowner conveyed three tracts of rural land to a close friend. In the presence of her attorney, she physically delivered the deeds to the grantee, requesting that he not record the deeds because she did not want her family to know of the transfer. Over the years, both parties used the tracts for various purposes. The grantee managed timberland, hunted, and paid taxes. The grantor built a home on one parcel and made mineral leases, timber sales, and sales in fee of small parcels. On several occasions, she told other persons that the grantee consented to her activities. After the grantor died in 2000, her heirs prevailed at trial on three claims: the deeds amounted to invalid wills, the grantor did not intend to deliver the deeds, and the grantor’s retained possession invalidated the deeds under the rule of repose. The Supreme Court reversed. The grantor understood the distinction between a deed and a will, and her deeds were unconditional on their face. Her attorney’s involvement in the delivery process demonstrated a clear intent to make a present transfer of title. As to the rule of repose, the court recognized that Alabama precedents had not clearly distinguished that rule from adverse possession principles in cases involving retained possession by the grantor. Alabama applies a 10-year period for adverse possession, but the period for repose is 20 years. Apparently a grantee’s failure to enter or assert a claim for over 20 years can result in the loss of title by repose, even if the grantor’s retained use does not satisfy all of the elements of adverse possession. Here the court refused to apply the rule of repose because the grantor’s activities were subservient to the grantee’s ownership. The grantee’s awareness and approval of her activities preserved his title. The same outcome would follow under standard adverse possession analysis. The grantor’s retained possession was not adverse, but was in accordance with the grantee’s permission. Salter v. Hamiter, 887 So. 2d 230 (Ala. 2004).

 

COTENANTS: Tenancy by the entireties presumed in deed from husband to husband and wife. A lawyer filed suit to collect unpaid legal fees from his client, a husband. Three weeks later, the husband conveyed real property, which he owned solely, to himself and his wife. The deed was silent on the nature of the grantees’ ownership. Subsequently, the lawyer obtained a default judgment for $145,000, and the husband filed bankruptcy. The court held that the property was exempt from the lawyer’s claim in bankruptcy, because the couple held it as tenants by the entireties. Delaware, like most states recognizing this form of ownership, presumes that a conveyance to a husband and wife creates a tenancy by the entireties, rather than a tenancy in common or a joint tenancy. At common law, one spouse could not convey directly to both spouses as tenants by the entireties. A straw person was necessary because of the legal fictions (the four unities and the unity of marriage). A 1965 Delaware statute repealed this rule, authorizing one spouse to convey “to both spouses in any estate, tenancy or capacity.” 25 Del. Code § 309. The statute did not indicate whether the presumption of tenancy by the entireties should apply to such a conveyance. Rejecting the lawyer’s argument that an express declaration of tenancy by the entireties was necessary, in a case of first impression, the court endorsed the presumption of entireties for this statutorily authorized conveyance. In re Kelly, 316 B.R. 629 (D. Del. 2004).

 

COVENANTS: Residential use covenant does not bar use of home for corporate office. A residential community had a covenant prohibiting any “manufactory, trade or business of any kind whatsoever.” A homeowner used his home as the corporate headquarters for a family corporation, which served as a manufacturer’s representative in the food industry. He also listed the home address as the corporation’s business address in the local telephone directory. He used the home office only for telecommunications and for “office administration,” without generating vehicular traffic. Four neighbors brought an action to enforce the covenant. Relying on the traditional rule that covenants are to be strictly construed, the court found no violation. The owner’s business activities were subordinate to his residential use and were not “readily discernible by other residents.” 9394 LLC v. Farris, 782 N.Y.S.2d 281 (N.Y. App. Div. 2004), leave to appeal denied (N.Y. Feb. 17, 2005).

 

EASEMENTS: Prescriptive easement not created by infrequent use of dirt road to harvest timber. The owners of two parcels of Virginia timberland claimed a prescriptive easement across a neighbors’ parcel. A dirt road, obvious and visible and in existence since at least the 1950s, connected the timber parcels to a state highway. The neighbors bought their 30-acre parcel in 2000 and blocked the road. The trial court granted a prescriptive easement for purposes of forestry and timbering, relying on occasional usage of the road since the 1950s by the timberland owners. That usage included a timber harvest on one tract during the late 1950s and a 1994 harvest on the other tract; however, the prior owner of the alleged servient estate granted written permission for use for the 1994 harvest. In addition to the two harvests, witnesses indicated that they occasionally used the road to access the timberland to replant and to make timber management plans, timber appraisals, and land surveys. On appeal, the supreme court reversed. For a prescriptive easement, Virginia requires adverse use that is continuous and uninterrupted for at least 20 years, proven by clear and convincing evidence. The continuity requirement takes into account the nature and character of use of the land, and the supreme court recognized that under its precedents a use need not be “daily, weekly, or even monthly” to be continuous. Nevertheless, the supreme court reversed, calling the uses “sporadic,” because they were insufficient to notify the owners of the easement claim. This decision is sound, even though many other courts would be tempted to find a prescriptive or implied easement under these facts. The court explained its high standard by observing that a prescriptive easement represents a taking of property without the payment of compensation. The editor adds that the law should generally require easements to be written and recorded, with departures from this norm only in cases of exceptional reliance on long-standing usage. Amstutz v. Everett Jones Lumber Corp., 604 S.E.2d 437 (Va. 2004).

 

FORECLOSURE: Lender may collect attorney’s fees for nonjudicial foreclosure. After contracting to sell his residence, a homeowner defaulted on his mortgage loan. One day before closing, the lender recorded a notice of default and an instrument appointing a successor trustee under the deed of trust. The lender’s closing payoff instructions included a required payment of $775 for an attorney’s fee related to the default. The deed of trust had standard language requiring that a defaulting borrower pay the lender’s reasonable attorney’s fees. The seller paid the fee under protest and then brought a class action, claiming that public policy barred collection of the fee. Since the passage of an 1879 statute, Nebraska courts have refused to grant recoveries of attorney’s fees in litigation unless authorized by a specific statute. This rule invalidates any contract provision calling for the payment of attorney’s fees. Thus, a lender who initiates judicial foreclosure cannot collect an attorney’s fee, regardless of the language of the deed of trust or other loan documents. The homeowner argued that the public policy against awarding attorney’s fees for judicial foreclosure should extend to nonjudicial foreclosure. In a cursory opinion, the court held to the contrary, recognizing “a strong policy favoring the parties’ freedom to contract.” The decision results in an anomaly—a lender can collect its attorney’s fees if it forecloses nonjudicially, but not if it forecloses judicially. The court failed to explain why contractual freedom is more important in the former context. The state legislature should intervene to apply the same rule—whichever one it chooses—to both foreclosure methods. Parkert v. Lindquist, 693 N.W.2d 529 (Neb. 2005).

 

FREEDOM OF SPEECH: Adult zoning regulation violates First Amendment. In 1977, the city of Grand Rapids, Michigan, adopted a zoning regulation to require the dispersal of adult bookstores and other sensitive uses. Such bookstores could not locate within 500 feet of a residential zone or within 1,000 feet of any two other regulated uses. In 2000, the Velvet Touch, a store that mainly sold adult videos, acquired a site in the city. Because the Velvet Touch sold some adult books and periodicals, it sought approval from the city planning department, which ruled that it was not an adult bookstore. An aggrieved neighbor appealed the city’s decision to state court. Next the city amended its regulation to redefine “adult bookstore” to include stores that sell or rent adult video discs and tapes. Velvet Touch brought a federal Section 1983 action against the city, challenging the old and new ordinances on the basis of freedom of expression. The city won in state court, but lost in federal court. The Sixth Circuit rejected the government’s procedural challenges, refusing to apply Younger abstention, the Rooker-Feldman doctrine, or the doctrine of claim preclusion. On the merits, the court agreed that the city could regulate the secondary effects caused by adult businesses, notwithstanding the effect on protected speech, under Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), and its progeny. The court, however, found the ordinance facially invalid for two reasons. First, the radius rules excluded new adult businesses from all but six potential locations in Grand Rapids, a small city. This severe limit failed to allow for adequate alternative channels of communication within the city. Second, the ordinance defined as “adult bookstores” all stores that have a “section or segment” of adult reading material. The court stated that this could sweep in mainstream bookstores “such as a Walden’s or Borders.” Because the city lacked empirical evidence that such stores caused unwanted secondary effects, the ordinance was not narrowly tailored to regulate only those stores that caused harm. Executive Arts Studio, Inc. v. City of Grand Rapids, 391 F.3d 783 (6th Cir. 2004) (rehearing en banc denied, Feb. 25, 2005).

 

OPTION CONTRACTS: Unpaid nominal consideration makes binding an option to sell real property. The buyer of an undeveloped lot in a new subdivision granted the developer an option to repurchase the lot for 90% of her purchase price if she failed to begin construction of a home within 18 months. At the closing of the sale, the parties executed a separate Option Agreement, which recited as consideration $10 “paid in cash by Developer, the receipt and sufficiency of which is hereby acknowledged and confessed.” The buyer, not having commenced construction in time, brought an action to cancel the option for lack of consideration. The developer, of course, had not actually paid $10 to the buyer. Reversing the decision of an intermediate appellate court, the supreme court held that nominal consideration, even if unpaid, makes an option contract enforceable. The court expressly adopted Restatement (Second) of Contracts § 87(a)(1) (1981), which makes an offer binding as an option contract if it “is in writing and signed by the offeror, recites a purported consideration for the making of the offer, and proposes an exchange on fair terms within a reasonable time.” The Restatement proposes adoption of a minority rule. Most U.S. courts treat a recital of nominal consideration, in fact unpaid, as a nullity. Two things are wrong with the court’s analysis. First, the option was supported by real consideration—the sale of the lot to the buyer. An informed buyer will pay less for a lot subjected to an unfavorable option than she would pay for an unrestricted lot. Surprisingly, the developer’s attorney virtually ignored this strong argument, instead pressing the claim that unpaid nominal consideration suffices. Second, nominal consideration is an anachronistic legal formalism. Arguably, the law should be reformed to make options to sell land generally enforceable, without the need for the optionee to furnish consideration. There are cogent policy arguments in favor of such a reform, but there are also weighty counterarguments in favor of the law’s traditional insistence on bargained-for consideration. Nothing is gained, however, when a court accomplishes the reform by forcing the parties to make a false recital or to engage in idle behavior (handing over a trifle). No modern court should adopt Restatement § 87(a)(1). 1464-Eight, Ltd. v. Joppich, 154 S.W.3d 101 (Tex. 2004).

 

SALES CONTRACTS: Parties’ failure to initial remedies clause costs buyer $73,000. A buyer contracted to buy a tract with a residence and a small guest cottage for $450,000, paying $2,000 in earnest money. The buyer defaulted, allegedly because he learned he would not be able to obtain governmental approval to add a kitchen to the cottage. The seller’s remedies were denominated on the form contract by two boxes: “forfeiture of earnest money” or “seller’s election of remedies.” The parties checked the first box. Three pages later, corresponding contract text stated, “In the event Buyer fails, without legal excuse, to complete the purchase . . . [t]hat portion of the Earnest Money that does not exceed five percent (5%) of the Purchase Price shall be forfeited to the Seller as the sole and exclusive remedy available for such failure.” In executing the contract, the parties failed to add their initials to blanks in the margin next to the remedies limitation. The local housing market slumped, and after the seller resold the property for $375,000, she brought an action for damages or specific performance. The Washington State earnest money forfeiture statute, Rev. Code Wash. § 64.04.005, requires that the forfeiture clause “be separately initialed or signed by the purchaser and seller.” The trial court dismissed the action, limiting the seller to retention of the earnest money. It held that the parties had substantially complied with the statute because the statutory purpose was to ensure that both parties had notice of the clause. The appellate court reversed, relying on testimony of the seller and the seller’s broker that they knew the buyer had checked the page 1 box and had forgotten to initial the page 4 clause. The broker believed the earnest money was too small and that the buyer could preserve her rights by failing to initial the forfeiture clause. The result is questionable. The buyer expected he was putting only $2,000 at risk. The seller and her broker acted in bad faith, taking advantage of his ignorance. Query whether the broker acted dishonestly, violating professional norms. This case shows the mischief that can result when a state legislature, with good intent, passes a statute that micromanages how real estate contracts are to be formatted and executed. Chrisp v. Goll, 104 P.3d 25 (Wash. Ct. App. 2005).

 

WILD ANIMALS: Landowners have no right to feed deer. In reaction to problems associated with deer overpopulation, Princeton Township passed an ordinance prohibiting the purposeful or knowing feeding of wild deer on public and private lands. Disgruntled residents claimed the ordinance deprived them of a property right to feed wild deer on their own land. They also claimed that the ordinance suffered from ambiguity and extended further than necessary to fulfill the government’s interest. Rejecting the plaintiffs’ claim that the ordinance infringed on a fundamental property right, the court applied the standard due process test that asks whether the measure has a rational relationship to a governmental objective. Because wild animals belong to the state, landowners do not have a “cognizable property right in feeding wild deer.” The court stated that the legislature could properly assume that the anti-feeding law would help to reduce the deer population, thus limiting the environmental and ecological damage caused by too many deer. Singer v. Township of Princeton, 860 A.2d 475 (N.J. Super. Ct. App. Div. 2004).

 

ZONING: Building permit allowing house encroachment in setback area is revocable. A homeowner, who was a contractor, applied for building permits to add 6,550 square feet of new space, in two stories, to his existing 2,000-square-foot house. The proposed addition would dramatically reduce the front-yard setback. The zoning code determined his required setback by a formula based on prevailing setbacks of neighboring lots. As part of his application, he prepared and submitted plot plans showing four neighboring lots. For one of those lots, he displayed a setback of 17.58 feet, measured to a detached garage. He did not show that the main house was set further back, at 30.75 feet. The city issued permits, and he began construction. Neighbors objected to the location of the new construction. Use in the formula of the smaller setback to the neighbor’s garage was improper, resulting in the house addition being located 14 feet closer to the street than allowed by the zoning code. The city refused to revoke the permits on the basis of hardship, because the house addition was complete. The court, however, ordered revocation, noting that the city issued the permits based on the homeowner’s own “substantially erroneous” applications. Many courts use estoppel to protect landowners who construct improvements based on illegally issued permits. Here that relief was inappropriate, because the owner’s mistake, even if made in good faith, caused the problem. Horwitz v. City of Los Angeles, 22 Cal. Rptr. 3d 295 (Cal. Ct. App. 2004).

 

LITERATURE

 

Mortgages; History of Secondary Market . Peter M. Carrozzo presents a short but informative history of the secondary mortgage market in the United States in his article, Marketing the American Mortgage: The Emergency Home Finance Act of 1970, Standardization and the Secondary Market Revolution, 39 Real Prop. Prob. & Tr. J. 765 (2005). Carrozzo describes the mortgage finance world before the enactment of the Emergency Home Finance Act of 1970 as quaint and distant; buyers of homes depended on local banks and local money to make the dream of home ownership real. Unfortunately, a cash crunch in the 1960s (“second only to the Great Depression”) created a crisis in mortgage lending and resulted in congressional action. This federal legislation had two most memorable features. First, it permitted FNMA to purchase conventional mortgages (in addition to FHA and VA mortgages, as then already allowed). Second, it created Freddie Mac, which was intended to “provide a secondary mortgage market, securing its capital from ‘home loan banks.’” The author suggests that, although the creation of a secondary market was a key objective, it is unlikely that anyone involved in the drafting of the Act fully understood the dramatic effect it would have on American society. Carrozzo concludes his article with a look at the future of mortgage lending in the coming century. He laments that “the simple grace and familiarity of individual lending in local institutions among neighbors and friends has given way to a new faceless indifference.” This trend will be compounded by the advancement of securitization and the development of electronic notes, signatures, and closings. Yet, as he also admits, these very same trends will continue to lower the barriers to entry to residential borrowing.

 

Property Rights; the Right to Destroy . In one of the truly creative articles of the last year, Professor Lior Jacob Strahilevitz points out that the 1999 edition of Black’s Law Dictionary appears to have blithely eliminated an owner’s right to destroy his property from the “bundle of sticks” defining property ownership. In The Right to Destroy, 114 Yale L.J. 781 (2005), Strahilevitz describes an emerging view among courts and legal scholars suggesting that owners should be prohibited from destroying their real and personal property. For example, courts may determine that provisions of a will directing the executor of an estate to raze the decedent’s house and to distribute the proceeds from a sale of the underlying land is unenforceable on policy grounds, if the home is an otherwise attractive and unobjectionable building. Essentially, these courts terminate the ability of an individual to direct the “capricious” destruction of property and promote a policy of limiting waste. An even more interesting set of cases emerges in the personal property arena. Occasionally, an individual’s will instructs the executor to bury the decedent with some prized possession (jewelry, for example). What is buried obviously is lost to the living and is in that sense “destroyed.” Again, courts may intervene to prevent this loss of valuable property. Yet, although the doctrine of waste seems to be motivating these decisions, Strahilevitz wonders at the unwillingness of the law, and of courts, to apply a similar concern for waste to the loss of human organs. As he points out, an individual’s “expressed wish to allow his organs to decay after his demise will be respected in every jurisdiction.” The author examines other instances in which property might be “saved” from destruction. These include presidential papers and historic buildings. Strahilevitz admits that there is a significant social purpose in preventing waste. But he sounds the academic’s note of alarm that perhaps things are going a bit too far. As he explains, there is reason to permit property owners to destroy their own property. “Historic preservation laws can lock inefficient land uses into place,” and rules requiring presidents to preserve all presidential papers can deter them from “memorializing controversial or sensitive ideas.” Indeed, he suggests that “rational people usually do not destroy valuable property intentionally.” When a court witnesses such destruction, “it should presume that the destructive act furthers some expressive objectives.” In many instances, Strahilevitz argues, these expressive objectives should be protected.

 

Real Estate Joint Venture Agreements; Buy/Sell Provisions. Stevens A. Carey thoroughly reviews buy/sell provisions in joint venture agreements in his recent article, Buy/Sell Provisions in Real Estate Joint Venture Agreements, 39 Real Prop. Prob. & Tr. J. 651 (2005). According to Carey, lawyers use these provisions “in real estate joint venture agreements to allow joint venturers to part ways.” Buy/sell provisions are employed to reduce costs and antagonism at the point when one party terminates the relationship. Under the buy/sell arrangement, the parties establish a “procedure under which one venturer eventually purchases the interest of the other venturer, but neither knows at the outset who will be the buyer and who will be the seller.” Under these provisions, the “initiating venturer” establishes the value of the joint venture, and the remaining venture partner must decide whether to sell or buy at the price based on this value. As the author points out, however, buy/sell provisions are imperfect. Carey does a nice job of explaining alternative mechanisms that the parties could employ to allow one party to leave the venture relationship and compares the advantages of these mechanisms to the buy/sell arrangement. These other mechanisms include liquidations, sales of assets as required by a right of first refusal, closed auctions, and a right-to-sell provision granted to one or both of the venture partners. Not unlike a divorce, the “best joint venture exit generally occurs when the venturers are in agreement and their interests are aligned.” The problem, of course, is that this is often not the case. The bulk of this article details each element of a buy/sell provision and the contingencies for which the parties must plan. Carey examines, among other things, the triggering events of the buy/sell provision, pricing problems, the nature of the interest sold (sale of assets as opposed to a sale of the party’s interest), key terms of the sale, including deposits and closing costs, the executory period, and remedies. This article contains a thoughtful evaluation of the problems that these provisions resolve and the other problems that these provisions sometimes create.

 

Takings; Public Use. A prior “Keeping Current—Property” column highlighted the recent Michigan Supreme Court case, County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004), in which that court rejected its earlier, and in many quarters infamous, decision of Poletown Neighborhood Council v. City of Detroit, 304 N.W.2d 455 (Mich. 1981). In Poletown, the Michigan Supreme Court engaged a broad definition of the “public use” requirement of the Takings Clause. In that case, the city of Detroit employed its eminent domain powers to wrest property from individuals in a Detroit neighborhood to ultimately provide that same property to a single private party, General Motors. As we said in that column: “The Michigan Supreme Court [overruled Poletown], adopting an ‘original intent’ test to decipher the constitutional meaning of ‘public use.’ The issue is the ‘common understanding’ of ‘public use’ when Michigan voters ratified their state constitution in 1963.” Poletown has been important in the development of eminent domain law and theory. It is therefore not surprising that scholars are now expending considerable effort discussing the new Michigan case. Interested readers should obtain a copy of the winter 2004 issue of the Michigan State Law Review, which is devoted to a symposium entitled The Death of Poletown: The Future of Eminent Domain and Urban Development After County of Wayne v. Hathcock. Contributing authors include law professors Eric R. Claeys, James W. Ely Jr., Lee Anne Fennell, James E. Krier, Adam Mossoff, Christopher Serkin, and Ilya Somin. Economics Professor William A. Fishcel and counsel for the property owners in Hathcock, Alan T. Ackerman, also contributed articles.

 

Truth in Lending; the Consumer’s Right to Rescind and Predatory Lending . In his article-sized student comment, Can’t Get No Satisfaction? Revising How Courts Rescind Home Equity Loans Under the Truth in Lending Act, 77 Temp. L. Rev. 457 (2004), Robert Murken asks whether rescission rights provided to consumers under the federal Truth in Lending Act (TILA) might serve as an effective mechanism to deal with predatory lending. The author provides a short history of TILA, as well as an explanation of its primary elements (including disclosure of loan terms and the consumer’s right to rescind the contract). He notes that “TILA’s mode of functioning is to empower private individuals to enforce its provisions, rather than direct a governmental agency to do so.” Although TILA works most effectively by ensuring that consumers receive accurate information with which to make borrowing decisions, it permits the consumer to rescind “where lenders, brokers and other players in the credit deal” do not live up to their obligations as set out in the Act. It is therefore easy to see why Murken believes TILA is ready-made to redress predatory lending behavior. The author evaluates the relative lack of success consumers have had in using the rescission remedy, and he objects to the position taken by courts that rescission should be granted to consumers only on the tender of loan proceeds.

 

 

LEGISLATION

 

Arizona clarifies the effect of the removal of a notice of pendency. After withdrawal or release, the notice of pendency does not provide actual or constructive notice of the matters in the notice or the underlying litigation. 2005 Ariz. Sess. Laws 14.

Arkansas allows a homestead exemption to be claimed for a principal residence held in a revocable trust. 2005 Ark. Acts 1268.

Arkansas limits the liability of a landlord for injury caused by a defect in the premises. Landlords are not responsible for personal injury or property damage caused by a defect or disrepair of the premises in the absence of an agreement to maintain or repair. 2005 Ark. Acts 928.

Idaho authorizes electronic recording of instruments related to real property transactions. The recorder is no longer required to maintain physical records or indexes. 2005 Idaho Sess. Laws 243.

Kentucky enacts the Uniform Environmental Covenants Act. Environmental covenants are established as an interest in real property. The covenants arise as a result of environmental remediation or mitigation that imposes activity and use limitations on the property. Such covenants must be recorded and are subject to other requirements. 2005 Ky. Acts 92.

Minnesota authorizes electronic indexes and storage of documents related to real property transactions. The recorder is no longer required to maintain physical records or indexes. 2005 Minn. Laws 4.

Mississippi limits required disclosures in real property transactions. Owners and brokers are not required to disclose death, suicide, homicide, or other criminal activity that does not affect the physical condition of the premises. Similarly, disease not known to be transmitted through common occupancy of real estate need not be disclosed. 2005 Miss. Laws 329.

Montana limits homeowner’s insurance requirements by lenders. As a condition of financing a residential mortgage, lenders may not require the borrower to obtain homeowner’s insurance in an amount exceeding the replacement value of the home and contents. 2005 Mont. Laws 97.

Nebraska enacts the Uniform Environmental Covenants Act. See description under Kentucky above. 2005 Neb. Laws 298.

North Dakota authorizes wind options and wind easements. A wind option is void if development does not occur within five years. 2005 N.D. Laws 2239.

South Dakota enacts the Uniform Environmental Covenants Act. See description under Kentucky above. 2005 S.D. Laws 196.

South Dakota revises and expands property condition disclosures. 2005 S.D. Laws 230.

Utah authorizes providing written assurance to bona fide purchasers that they will not be held liable for the cleanup costs of contaminated property. A “Brownfields Fund” is established by the legislation. 2005 Utah Laws 200.

Utah restricts land use regulations that impose a substantial burden on the free exercise of religion. 2005 Utah Laws 99.

Utah provides civil and criminal penalties for wrongful liens made against a person’s interest in real property. 2005 Utah Laws 93.

Virginia enacts “The Real Property Electronic Recording Act.” Electronic signatures, filing, recording, and storage are authorized under the Act. 2005 Va. Acts ch. 744.

Virginia requires landlords to disclose to tenants that an apartment adjacent to a military air installation is located in a military noise or accident potential zone. A tenant who does not receive the notification may terminate the lease. 2005 Va. Acts ch. 511.

Virginia authorizes landlords to raise the rent of holdover tenants. 2005 Va. Acts ch. 805.

Wyoming creates “Historic Preservation Rights” as an interest in real property. 2005 Wyo. Sess. Laws 167.

Wyoming enacts the Uniform Environmental Covenants Act. See description under Kentucky above. 2005 Wyo. Sess. Laws 127.

Wyoming adopts the “Wyoming Residential Mortgage Practices Act.” 2005 Wyo. Sess. Laws 117. j

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