Keeping CurrentKeeping Current—Property Editor : Prof. James C. Smith, University of Georgia, Athens, GA 30602, Contributing editors: Prof. William G. Baker, Prof. Ronald Benton Brown, Prof. Matthew J. Festa, Prof. Bridget Fuselier, and Prof. Shelby D. Green.

Probate & Property Magazine, January/February 2010, Volume 24, Number 1

Keeping Current | Property

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


COTENANTS: Partition action does not survive death of joint tenant, and mere filing of partition action does not cause severance. In 1991 Joan and Ronald acquired two parcels of land as joint tenants. Over the years Joan gave Ronald a series of checks in various amounts. She claimed they were oral loans, but Ronald claimed some were gifts and others were payment for work he did for her. In 2004 Joan sued Ronald for breach of contract to collect the loans. She also claimed that the 1991 conveyances were not effective to grant Ronald an interest in the parcels. The trial court granted judgment for Joan for all the funds advanced and judgment for Ronald that the conveyances were effective. Both parties appealed, and Ronald promptly filed a separate action for partition of the parcels. At Joan's request, the trial court stayed the partition action pending the appeal. Ronald died unexpectedly, and his estate substituted as party in both actions. The court held that the partition action could not go forward. The principal characteristic of a joint tenancy is the right of survivorship, which operated to vest the entire ownership in Joan when Ronald died. A partition action can result in severance of the joint tenancy, ending survivorship rights, but only when the partition suit reaches final judgment. Accordingly, even if Ronald's partition action had survived his death, his interest in the parcel of land did not. In a dissent, joined by the chief justice, one justice pointed out that the state's survival statute was enacted to reverse the harsh effect of the common law, which extinguished all pending actions on the death of a party, by providing that "[a]ll actions and claims survive death." Mich. Comp. Laws § 600.2921. Moreover, the dissent argued, an action for partition is equitable in nature, meaning that the court has broad authority to inject fairness and render a fair judgment. In the dissent's view, holding that the partition action was extinguished not only frustrated the legislative intent to make pending claims immune from attack based on a claimant's subsequent death but also ignored notions of equity and the court's consistent pronouncements that the right to partition is absolute. Jackson v. Estate of Green, 771 N.W.2d 675 ( Mich. 2009).

DEEDS: Deed with inconsistent granting and habendum clauses creates life estate and remainder that does not violate the rule against perpetuities. The granting clause of a 1975 deed conveyed land "unto Thomas S. Neeley, for and during his natural life and at his death to his heirs." The habendum clause of the deed, however, provided "to have and to hold the above described tract or parcel of real estate unto said Thomas S. Neeley, for and during his natural life and at his death to his heirs, forever in fee simple." Thomas subsequently executed a deed purporting to create a tenancy by the entirety with his wife. In 2004 Thomas died, survived by his wife and one son. The wife claimed full ownership on the ground that the "forever in fee simple" language in the habendum clause created a fee simple absolute in Thomas, but the court disagreed. Deed interpretation should give effect to the intent of the grantor, to be determined from the entire document read in light of the surrounding circumstances. Traditional technical rules, such as the roles of the granting and habendum clauses and the technical meanings of words, are not controlling. Because both clauses used the term "his natural life," the deed created a life estate followed by a remainder in Thomas's heirs, and not a fee simple. The wife also claimed that such a remainder violated the rule against perpetuities. This attack failed because the remainder was certain to vest, if it ever would, when Thomas died. Thomas was the validating life, so the rule was not violated. The court went on to note that if the Rule in Shelley's Case were still the law in Tennessee, Thomas would have taken a fee simple under this deed, but a statute abolished the rule in 1851. Tenn. Code § 66-1-103. Neeley v. Neeley , No. M2008-01575-COA-R3-CV, 2009 WL 1076740 ( Tenn. Ct. App. Apr. 21, 2009).

EASEMENTS: For implied easement by prior use, court cannot infer on summary judgment intent by grantor that quasi-easement continue as true easement. In 1850, a landowner conveyed a strip of land to a railroad company in fee simple, on which the company constructed a railroad track. Although the deed did not reserve to the grantor any rights to cross the railroad track, successors to the grantor regularly crossed the track to access the southerly portion of their property to harvest hay, farm, swim, ice skate, pick blueberries, and access an adjoining pond. The railroad never challenged their access. In 1998, plaintiffs acquired the grantor's land and thereafter brought suit to establish an easement across the track based on the quasi-easement theory. An easement based on the quasi-easement theory requires that the property when in single ownership was openly used in a manner constituting a quasi-easement that was apparent and observable and the retention of which would benefit the land retained; the grantor manifested an intent that the quasi-easement should continue as a true easement, burdening the conveyed land and benefiting the retained land; and the owners of the retained property continued to use what had been a quasi-easement as a true easement. The trial court granted summary judgment for plaintiffs, but the railroad argued that an essential element for a quasi-easement was missing: that the grantor intended that the quasi-easement continue as a true easement. The supreme judicial court agreed, pointing out that the record contained few undisputed facts regarding that intent. Although a fact finder might infer intent from the circumstances of the conveyance (the need to access the southern portion of the land), that intent should not be inferred as a matter of law on summary judgment. The court's recitation of the requirements for establishing an easement by prior use seems to call for affirmative evidence of intent, but the ruling does not depart from the notion that easements by implication are based on presumed intent as inferred from facts bearing on the necessity and apparent nature of the use. Direct evidence of intent, such as statements by the grantor, are often non-existent (note here that none of the parties to the 1850 conveyance are alive today). It is only that the court will not make those inferences on summary judgment. Connolly v. Maine Central R.R. Co. , 969 A.2d 919 ( Me. 2009).

FORECLOSURE: Lender's commencement and withdrawal of unjustified foreclosure is not sufficient for liability for intentional infliction of emotional distress. The mortgagors obtained a home equity loan from Bank One and later filed for bankruptcy. While the mortgagors were negotiating with Bank One for a payoff amount, Bank One assigned the loan to Blue View without notifying either the mortgagors or the bankruptcy court. Subsequently, Bank One accepted $4,500 from the mortgagors as full payment of the loan. Three months later, Blue View, the assignee, began foreclosure proceedings against the mortgagors' land. Blue View withdrew those foreclosure proceedings, but several months later assigned the loan to Stewart Title Guaranty Corporation. Almost two years later Stewart Title foreclosed, leading to an auction sale of the property. The mortgagors sued Bank One, Blue View, and Stewart Title, raising seven claims: wrongful foreclosure, fraud, slander of title, failure to cancel instrument of record, conversion, violation of the Real Estate Settlement Procedures Act, and intentional infliction of emotional distress. The mortgagors voluntarily dismissed with prejudice all of their claims against Bank One and Stewart Title. (Possibly these claims settled; the opinion does not say.) The appeal considered only the emotional distress claim against Blue View. Blue View failed to answer the complaint, leading to a default judgment with the trial court assessing $2 million in compensatory damages and $5 million in punitive damages. The appellate court reversed. The tort of intentional infliction of emotional distress requires proof that: "(1) the conduct giving rise to the claim was intentional or reckless; (2) the conduct was extreme and outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe." To meet the second prong of the test, the conduct must be "so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." The complaint alleged only that Blue View had "recklessly, wantonly and with extreme indifference to the consequences ignore[d] the facts of the case that the debt had been paid" in bringing the foreclosure action and noted that the foreclosure had been withdrawn. It appears to the editors that the mortgagors may have prevailed if (1) Blue View withdrew its foreclosure action because it had received notice that the mortgage had been paid off, (2) it subsequently assigned the mortgage despite having that knowledge, and (3) those facts were specified in the complaint. Blue View Corp. v. Bell , 679 S.E.2d 739 (Ga. Ct. App. 2009).

LANDLORD–TENANT: Tenant's insurer must defend and indemnify landlord under "additional insured" clause even though tenant was the only named insured. A tenant's employee, injured by slipping on snow and ice on the leased premises, brought suit against the landlord. The tenant's liability insurer disclaimed coverage on the ground that the policy named only the tenant as the insured and thus did not afford coverage to the landlord. The lease obligated the tenant to pay for snow removal services and to indemnify, defend, and hold harmless the landlord from damages and liabilities arising out of the tenant's occupancy. The lease also required the tenant "at its sole cost and expense and for the mutual benefit of Landlord and Tenant" to maintain a general liability insurance policy. The tenant's policy had a "blanket additional insured" provision extending coverage to any person whom the tenant was required to name as an "additional insured" under a "contract or agreement," which included the lease. The tenant did not notify the insurer that the landlord was an additional insured before the accident and was not required to do so by the policy. The issue was whether the lease terms made the landlord an additional insured. The court noted that "additional insured" was a well-recognized concept in insurance contracts, which meant a person entitled to the same protection as the named insured. The court focused on the lease provision requiring insurance for the "mutual benefit" of the parties and concluded that the natural and intended meaning of the term was that landlord and tenant were to enjoy the same level of coverage. Reinforcing this construction was other language in the lease that gave the tenant the option to purchase other kinds of insurance for itself only and on its own terms. Thus, the insurer had to defend and indemnify the landlord as an additional insured in the underlying personal injury action. Kassis v. Ohio Cas. Ins. Co., 913 N.E.2d 933 (N.Y. 2009).

OPTION CONTRACTS: Court's quick adjournment of hearing does not excuse optionee from failing to communicate exercise of option before its expiration date. In 1978, a husband and wife granted an option to buy 113 acres of land to the wife's sister. The option contract provided for exercise of the option "upon the deaths of both [husband and wife]. Provided, that said election shall be exercised within sixty days of the death of the last to die." The husband died in 1984, and the wife died on February 19, 2006. The sister gave a power of attorney to her daughter, who attended the probate hearing for the wife's estate, held on April 11. The daughter attempted to communicate exercise of the option, but she was interrupted by the judge, who misunderstood the reason for her attendance. The court rescheduled the hearing for June 15 without giving her the opportunity to communicate exercise of the option. On June 15 (more than 60 days after the wife's death), the sister notified the attorney for the estate of her exercise of the option. The trial court found timely exercise for two reasons: (1) the daughter intended to exercise the option at the April 11 hearing, and that intent would have been clearly communicated but for the judge's interruptions; and (2) the 60-day period did not begun until the June 15 hearing, when the court appointed a personal representative for the estate. The supreme court reversed, concluding that there was no objective manifestation of an intent to exercise the option at the April 11 hearing and that the option had to be exercised no later than 60 days from the date of death, not 60 days from the appointment of the personal representative. Time is of the essence for option contracts. Justad v. Ward, 211 P.3d 118 (Idaho 2009).

SALES CONTRACTS: Economic loss rule bars recovery for negligent misrepresentation for sellers' failure to disclose risk of landslide on property disclosure form. The sellers of a waterfront home completed a disclosure form in which they answered "no" to questions asking about structural instability, prior damage from landslides or beach movements, and any other material defects. Before closing the sellers amended the form to include a geologist's report they obtained two years earlier in connection with an addition they made to the home. The report discussed slope instability problems, and the contract allowed the buyers to obtain their own geological evaluation, which they did not do. Two years after closing, the house slid so much that the sheetrock cracked and doors stuck. The buyers sued for rescission or for damages for negligent misrepresentation and fraudulent concealment. The trial court granted summary judgment for the sellers on all claims. The appellate court affirmed as to the negligent misrepresentation claim based on the "economic loss rule," which prohibits recovery for economic losses in tort when the plaintiff's entitlement comes from a contract. The buyers attempted to avoid the rule by arguing that the landslide put their lives at risk, but the court disagreed. All of their claims sought economic damages arising from the disclosure form and the sale of property rather than redress for physical harm. Fraud is an exception to the economic loss rule, but summary judgment for the fraudulent concealment claim was appropriate. The buyers could not reasonably rely on the disclosure statement for the risk of a landslide because they had received the geologist's report. The appellate court reversed as to the buyers' rescission claim, explaining that this remedy avoids the contract and is not implicated by the economic loss rule. The buyers also had sued their real estate broker for violations of common law and statutory duties, and the appellate court reversed the summary judgment in favor the broker, concluding that the economic loss rule did not bar these claims. Jackowski v. Borchelt, 209 P.3d 514 (Wash. Ct. App. 2009).

SPECIFIC PERFORMANCE: Court orders specific performance despite delay of almost 10 years after parties entered into sales contract. In 1994, the parties entered into a contract of sale for a property to be used as an automobile repair shop. The contract provided that the buyer would occupy the premises and pay rent until closing. The buyer's obligation to close was subject to several conditions including obtaining a mortgage loan commitment and a satisfactory environmental report. The closing was to occur 30 days after the buyer notified the seller that all the conditions had been satisfied or waived. The buyer took possession in 1994 but did not seek financing or begin an environmental site assessment until 2000. The buyer's lawyer arranged for an environmental assessment, which disclosed petroleum contamination, and unsuccessfully attempted to communicate with the seller. Although the parties had conversations, a closing date was never set. The seller testified that the delay was caused by the buyer's saying he could not get financing but admitted that he never pressed the buyer to close. Moreover, although the seller knew that he had an obligation to remediate the petroleum contamination, he never did because he was not forced to do so. In 2003, the seller notified the buyer that he was increasing the rent. The buyer protested the rent increase and demanded a meeting to discuss completing the sale but received no answer from the seller. The seller transferred title to a corporation owned by his grandson, and the corporation accepted an offer to buy from a third party. The buyer then brought an action for specific performance, obtaining a judgment setting aside the transfer of title to the corporation and ordering conveyance to the buyer. On appeal, the court rejected the seller's claim that the buyer had committed an anticipatory breach by stating that he could not get financing. The seller did not act on that statement and, instead, by his conduct acquiesced to the delays. In addition, the seller breached his independent duty to remediate the petroleum contamination. Hugg v. Kastner, 758 N.W.2d 224 (Wis. Ct. App. 2008).

WATER RIGHTS: Water right acquired by prior appropriation is forfeited under statute if not used for five years without due and sufficient cause. Frick Farms acquired real property and the appurtenant water right from Debes in 2002. Mrs. Frick testified that before the purchase she contacted the Department of Agriculture Division of Water Resources (DWR) and was told that the water right was in good standing. During due diligence conducted by Frick Farms to sell the property to another party, an issue of forfeiture of the water right arose. The DWR contended that the water right terminated under the Kansas Water Appropriations Act, which provides: "Every water right of every kind shall be deemed abandoned and shall terminate when without due and sufficient cause no lawful, beneficial use is henceforth made of water under such right for five successive years." Kan. Stat. § 82a-718(a). At an administrative hearing, the DWR presented evidence that Debes, the prior holder, had failed to prove use of the water for irrigation during the period of 1985 to 1991 (seven years) and also during the period of 1995 to 2002 (eight years). Frick unsuccessfully tried to rebut the DWR's prima facie evidence by introducing reasons for Debes' non-use in some of the years. Planting a crop that did not require irrigation, loss of a crop because of freezing, the poor health of Debes, and making a more economically beneficial use of the land that did not require irrigation were not sufficient reasons to excuse the non-use. As the court noted, a state can create a property right and then place conditions on the retention of that right. The statute clearly indicated that a loss or forfeiture of the water right would occur with non-use for a period of five years absent a justified explanation. Frick Farm Props., L.P. v. State Dep't of Agriculture, 216 P.3d 170 (Kan. 2009).

ZONING: Billboard company lacks standing to challenge city's amendment of nonconforming-use provisions after landowners terminated company's leases. In 2001, The Lamar Company leased land from several owners and purchased billboards that were already located on the properties. The billboards were nonconforming uses under the city's zoning code adopted the prior year. In 2003, the city passed a new ordinance and amended an existing ordinance to allow for replacement of nonconforming signs. Following passage of the ordinances the property owners terminated their leases with Lamar under notice provisions in the leases. No one disputed that even absent the changes the landowners could terminate the leases at any time by providing proper notice. Once the leases terminated, the landowners entered into new leases with another sign company, and that company erected new signs in compliance with the new and amended ordinances. Lamar challenged the right of the company to erect such signs and complained that the new and amended ordinances were unconstitutional as applied and on their face. The court held for the defendants, finding that the right to a nonconforming use runs with the land and is not a personal right. Therefore, once Lamar's leases terminated, Lamar no longer had any right to a nonconforming use and lacked standing to bring an as-applied constitutional challenge. In addition, the court did not allow Lamar to bring a facial constitutional challenge to the zoning ordinances as Lamar could not establish any injury in fact as a result of such ordinances. The Lamar Co., LLC v. City of Fremont, 771 N.W.2d 894 (Neb. 2009).


Accession. Prof. Thomas W. Merrill makes a significant contribution to the theory of property ownership in Accession and Original Ownership, published in Harvard's new Journal of Legal Analysis, 1 J. Legal Analysis 459 (2009). Prof. Merrill takes on the long-standing notion that when a resource becomes property, first possession is the dominant mode for establishing original ownership. In the article Prof. Merrill acknowledges the intuitive and historical power of the first possession model, but he points the reader to the forgotten roots of an alternative explanation for original ownership, namely the idea of "accession." Accession is the principle that awards new property resources to the owner of whatever property is most closely connected to that resource. Prof. Merrill uses as examples the concept that newborn animals belong to the owner of the animal's mother; that newly discovered minerals belong to the surface owner; and that monetary interest belongs to the owner of the principal. Prof. Merrill contends that this principle of accession is actually the more dominant method of establishing original title today, notwithstanding the lineage of the first possession ideal. The article compares favorably the two methods of establishing ownership because they both reduce transaction costs; it further asserts that the accession method can be successful in internalizing costs by associating the gains and losses from property management to the owner most connected with the new resource.

Boundaries of Homeownership. Prof. Lee Anne Fennell has published The Unbounded Home: Property Values Beyond Property Lines (Yale University Press, 2009). This challenging but highly readable book addresses one of the fundamental tensions in modern American homeownership: the conflict that every homeowner faces between the desire for complete personal freedom in his or her own home and the collective urge to control the land use of everyone else. This tension, writes Prof. Fennell, proceeds from the little-acknowledged but important fact that the value of every home derives not only from the quality, location, and condition of the real property itself, but also from the entire environment—neighborhood, schools, public services, and market conditions. The first chapters examine this "unbounded" nature of homeownership in the context of some of the classic theoretical constructs such as externalities, the Tiebout hypothesis, and the tragedy of the commons. In this analysis the book provides a new take on some of the insights addressed by William A. Fischel in The Homevoter Hypothesis: How Home Values Influence Local Government Taxation, School Finance, and Land-Use Policies (2001). Prof. Fennell extends the discussion to consider reforms that could increase flexibility in property rules that govern community control of land use. Her central innovation is the suggestion to reconfigure the concept of residential property ownership in a way that separates the homeowner's "bundle of rights" in the real property from the off-site factors that influence volatility in market value. Toward this goal she proposes the development of new forms of transferable entitlements in aesthetic effects. Prof. Fennell's book makes an important contribution to the literature of property theory and will also be a very interesting and accessible read for practitioners.

Effect of Land Use Regulations on African-American Businesses. Prof. Stephen Clowney examines the role that land use regulations play in the success or failure of African-American owned businesses. In Invisible Businessman: Undermining Black Enterprise with Land Use Rules, 2009 U. Ill. L. Rev. 1061, Clowney observes that one of the major factors constraining the success rate—disproportionately—of self-owned business enterprises in African-American neighborhoods is the traditional land use regulatory scheme that imposes development and use restrictions, compliance costs, and zoning that separates commercial from residential uses. Prof. Clowney calls for land use reform as "the most underexamined method of restoring the economic vitality of central cities." He considers but rejects the possibility of rolling back zoning laws generally. Prof. Clowney instead offers the more precise proposal of having municipal governments convert abandoned properties into commercial space for black-owned businesses. He contends that this would provide small-scale entrepreneurs with the opportunity and conditions for urban businesses to flourish. The article concludes that such a plan would be favorable not only to the new business owners, but also to the neighborhoods where they would be located.

Modification of Home Mortgages in Bankruptcy. The analysis of the mortgage crisis is growing more sophisticated. Prof. Adam J. Levitin contributes to this trend with his article, Resolving the Foreclosure Crisis: Modification of Mortgages in Bankruptcy, 2009 Wis. L. Rev. 565. This thorough empirical study illuminates the relationship between bankruptcy proceedings and mortgage defaults and foreclosures. Prof. Levitin designed the study to test the assumptions underlying the policy against bankruptcy modification of home mortgage debt. This policy, he states, has been based on the assumption that protecting lenders incentivizes more lending and thereby increases the rate of home ownership. Prof. Levitin's findings, however, challenge this assumption. His study finds that permitting bankruptcy modification of mortgage loans would not have much of an effect on lending. Therefore, he writes, lenders will have more to lose from a higher rate of foreclosures than they would from adjustments through bankruptcy proceedings. Prof. Levitin thus recommends that bankruptcy courts consider modifying home mortgage loan obligations as a way to ameliorate problems caused by the mortgage and foreclosure crisis to the economy.

Property Taxation. In their new Guide to Property Tax Valuation (Willamette Mgmt. Assocs. 2008) , Robert F. Reilly and Robert P. Schweihs offer a thorough and authoritative resource for anyone interested in the valuation of commercial property for tax purposes. The authors—experienced property valuation professionals—offer this book as a comprehensive guide to the ad valorem tax valuation of commercial and industrial property. It addresses a range of issues regarding unit, real and personal property, and intangible and intellectual property valuation. It is a highly practical guide, rich with examples and explanations of hundreds of specific issues that could arise in the field. This book will be a very helpful resource not only for lawyers but also for appraisers, tax officials, accountants, and real estate professionals.

State Legislative Responses to Kelo. The debate continues over the proper application of the eminent domain power and, in particular, over the U.S. Supreme Court's decision in Kelo v. City of New London, 545 U.S. 469 (2005). The Kelo case, while affirming the legitimacy of "economic development" takings under the Public Use Clause, also inspired a backlash of anti-takings sentiment, particularly in the state legislatures. Prof. Ilya Somin has been tracking these legislative responses to Kelo since the decision came out. He has published his analysis in The Limits of Backlash: Assessing the Political Response to Kelo, 93 Minn. L. Rev . 2100 (2009). Somin characterizes the Kelo backlash as one that "probably resulted in more new state legislation than any other Supreme Court decision in history." The sheer number of states (43) that had enacted "anti- Kelo " measures at the time of publication is compelling. But Prof. Somin believes that the bark of the "backlash" is much more powerful than its bite. In his comprehensive review of all states' legislative responses to Kelo, Prof. Somin finds that many (if not most) of the laws are merely cosmetic; most of the measures leave wide discretionary loopholes for findings of blight or otherwise lack enforcement provisions. Although a minority of state responses do have teeth, Prof. Somin concludes that the political process is inferior to judicial protection of property rights. This article should be interesting to any lawyer or policymaker involved with eminent domain, takings, or legislative reform.


Arizona limits restrictions on the display of for sale signs for the transfer or sale of real property. The law applies to both for sale signs and a sign rider. It does not apply to time-share property and time-share interests. 2009 Ariz. Legis. Serv. 60 .

Arizona amends its mortgage laws. The law provides for the licensing and regulation of mortgage loan originators. The Act coordinates with the Nationwide Mortgage Licensing System and Registry and the Federal Secure and Fair Enforcement for Mortgage Licensing Act of 2008. 2009 Ariz. Legis. Serv. 163.

Illinois amends the Condominium Property Act to provide protection for distressed condominium property. Condominium units that are a danger, blight, or nuisance to the surrounding community constitute distressed property if they meet at least two other conditions, including serious building code violations, 60% or more of the condominium units are in foreclosure, or essential utilities have been terminated to 40% or more of the units. On a complaint filed by the local municipality, the court can appoint a receiver to rectify the problems or can dissolve the condominium when the problems render the condominium nonviable. 2009 Ill. Legis. Serv. 174.

Illinois creates a managing entity lien on real estate time-shares. The lien may be levied or imposed for unpaid assessments, collection and attorney's fees, and taxes, interest, and penalties. The Act provides a procedure for perfecting the liens and foreclosing liens that are in default. 2009 Ill. Legis. Serv. 738.

Iowa adopts the Iowa Secure and Fair Enforcement for Mortgage Licensing Act. The Act coordinates with the Nationwide Mortgage Licensing System and Registry and the Federal Secure and Fair Enforcement for Mortgage Licensing Act of 2008. 2009 Iowa Acts 61.

North Carolina limits condemnation of property encumbered by a conservation easement. Before a public condemnor can take by eminent domain property that is subject to a conservation easement, it must show a lack of prudent and feasible alternatives. The holder of a conservation easement has standing to contest the condemnation, and if condemnation occurs, the holder is entitled to compensation. 2009 N.C. Sess. Laws 439.

North Carolina limits deficiency judgments for notes secured by mortgages on a primary residence. For mortgages recorded before January 1, 2010, the holder of the obligation is not entitled to a deficiency judgment if the encumbered property is sold under a power of sale and was occupied as a primary residence when the proceeding was commenced. For mortgages recorded after January 1, 2010, the holder of the obligation is not entitled to a deficiency judgment if the encumbered property is sold either through judicial foreclosure or under a power of sale and was occupied as a primary residence when the proceeding was commenced. 2009 N.C. Sess. Laws 441.

North Carolina adopts the Permit Extension Act of 2009. The purpose of the Act is to extend permits for the development of real property until at least December 2010. The legislation acknowledges the current economic recession and difficulty of obtaining capital for development. Numerous permits are exempted from the Act, including permits with specified expiration dates and certain environmentally sensitive permits. 2009 N.C. Sess. Laws 406.

Pennsylvania adopts the Mortgage Licensing Act. The law provides for the licensing and regulation of mortgage loan originators. The Act coordinates with the Nationwide Mortgage Licensing System and Registry and the Federal Secure and Fair Enforcement for Mortgage Licensing Act of 2008. 2009 Pa. Legis. Serv. 31.

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