Property Law Developments—Joseph William Singer

Assuming Governor Deval Patrick signs the law, the Massachusetts legislature just passed a statute called “An Act to Stabilize Neighborhoods” that protects tenants from being evicted from property after foreclosure as long as they are paying the rent. Tenants can be evicted if the property is being sold to a third party, but if the lender buys the property at foreclosure, it must continue renting to the tenant–and complying the landlord’s obligations under state law to provide habitable housing. The law also requires lenders to have at least one meeting with the defaulting borrower to try to work in good faith to negotiate a new arrangement; this must happen before the bank forecloses on the property. If the lender does not do this, it must wait an extra two months before beginning foreclosure proceedings.  The bill also criminalizes mortgage fraud. read article

Judge Joseph L. Tauro of the District Court of Massachusetts ruled that the federal Defense of Marriage Act (DOMA) violates the constitution by prohibiting the federal government from recognizing same-sex marriages that are valid under state law. In one opinion, he ruled that the law violates the Tenth Amendment by intruding on areas reserved to the states, noting that family law (including the law of marriage) has traditionally been regulated by state law and not federal law. Commonwealth v. U.S. Dept. of Health and Human Services, 2010 WL 2695668 (D. Mass. 2010).  In a separate opinion, he ruled that DOMA violates the equal protection clause because the government could not provide any rational basis for failing to recognize same-sex marriages. Gill v. Office of Personnel Management, 2010 WL 2695652 (D. Mass. 2010). read article

On July 15, 2010, the Argentine Senate voted to approve same-sex marriages, adding its voice to a similar bill approved in May by the lower house. Because President Cristina Fernandez de Kirchner supports the bill, it will become the law. The Parliament in Iceland unanimously approved a similar bill (by a vote of 49-0) on June 12. Argentina and Iceland join the Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, and Portugal in providing full marriage rights for same sex-couples in addition to the states of Massachusetts, Iowa, Connecticut, Vermont, New Hampshire and the District of Columbia, although these state-law based marriages are not recognized by the federal government in the United States because of federal Defense of Marriage Act. read article

In Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S.Ct. 483, 175 L.Ed.2d 305, 2009 U.S. LEXIS 7593, 2010 WL 2400086 (June 17, 2010), the Supreme Court held that the Florida Supreme Court did not effect an unconstitutional taking of property when it held that a state-funded beach renewal project did not take property rights in violation of the state constitution’s takings clause. The state had funded beach renewal projects to deposit new sand on eroded beaches; once that occurred, the statute set a fixed boundary between public rights in the restored lands and private property rights in the upland; that fixed line was placed where the mean-high tide line had been prior to the restoration project.

The Court unanimously held (8-0, with Justice Stevens not participating) that the Florida statutory program as interpreted by the Florida Supreme Court did not constitute a taking of of any property rights of littoral (beach-front) owners. Prior Florida case law affirmed the power of the state to fill in the seabed that it owned; it also provided for no change in the boundary between private property rights of littoral owners and public rights in the seabed when littoral land increased suddenly because of a natural event (called avulsion). Florida common law did allow the boundary to change if the mean high-water line shifted gradually by accretion (slow addition to littoral land by deposit of new natural material) or reliction (slow addition to littoral  land by natural receding of the water).

The Supreme Court held that the Florida beach replenishment program was merely an enactment of these principles. There was no precedent for the proposition that avulsion does not change the boundary line merely because the state was responsible for the avulsion through a publicly-administered beach restoration project. Nor did the statute take away littoral owners’ rights to accretion since any slow accretions to land created by avulsion would belong to the state as owner of the avulsive land.

Four Justices (Alito, Roberts, Scalia, Thomas) would have held that state courts can effect takings of property through interpretation of state common law or statutes while four Justices (Breyer, Ginsburg, Kennedy, and Sotomayor) found it unnecessary to reach that issue because under any version of a test that might be adopted, no such taking occurred in this case. Justice Scalia responded, in the plurality opinion, that one could not find that no taking occurred without identifying some test for what constitutes a judicial taking. Justice Kennedy wrote a separate opinion, joined by Justice Sotomayor, arguing that any judicial deprivations of property rights should be handled by the due process clause rather than the takings clause.