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Court Crier: Real Estate

In Knick v. Township of Scott, Pennsylvania, the United States Supreme Court addressed whether a property owner must seek compensation through an inverse condemnation procedure before the owner may proceed with a constitutional unlawful taking challenge in federal court. The court held that property owners are not required to take that step, instead holding a constitutional violation occurs as soon as property is taken, and therefore the owner may proceed immediately in federal court. (June 21, 2019)

In Bank of New York Mellon v. Hardt, the New York Supreme Court, Appellate Division, Second Department, considered whether a “mortgagee cannot, as a matter of law, establish standing where the original promissory note was lost and there is not valid assignment of the note to the [mortgagee].” The court stated that pursuant to UCC 3-804, the [mortgagee] may maintain an action upon dur proof of 1) his ownership of the note, 2) the facts which prevent the production of the note and 3) the note’s terms. Accordingly, the court held that “as long as the affidavit of loss note meets the requirements of UCC 3-804, a mortgagee may establish standing based on its possession of the note, even when the original note has been lost.” (June 26, 2019)

In Hernandez v. Florian, the New York Supreme Court, Appellate Division, Second Department, considered whether the plaintiff’s claim sufficiently plead third and fourth element of a “transfer in reliance” and unjust enrichment to state a cause of action for the imposition of a constructive trust. In order to obtain a remedy of a constructive trust, the plaintiff must demonstrate four factors: 1) a fiduciary or confidential relationship between the parties; 2) a promise; 3) a transfer of some asset in reliance upon the promise; and 4) unjust enrichment flowing from the breach of promise. The court held that the third and fourth factors were sufficiently pleaded because the plaintiff paid the mortgage and expenses for the subject property for 10 years in reliance upon the defendant’s promise, and that the defendant was unjustly enriched by the plaintiff’s payment. (June 26, 2019)

In Schnarrs v. Rush Township Board of Supervisors, the Commonwealth Court of Pennsylvania held that a municipality established the existence of a public road by virtue of a prescriptive easement across private property. The court held that the use of the road met the definition of adverse, open, notorious, continuous and uninterrupted use of the private property for a period of at least 21 years. (June 17, 2019)

In Mitch v. XTO Energy, the Superior Court of Pennsylvania considered whether a gas lease providing the lessor with excess payments for a well placed “on the lease premises” included payments for a horizontal well beneath the surface of the “lease premises” emanating from a vertical well placed on an adjacent premises. Relying on the ordinary meaning of the word “on” and construing the lease as a whole to provide extra compensation for the disruption attendant to the surface components of a well, the court held that the only reasonable interpretation of “on the lease premises” was “on the surface of the lease premises,” entitling the lessor to no excess payments. (June 12, 2019)

In City of Lewes v. Nepa, the Supreme Court of Delaware addressed whether a city may impose stricter variance requirements in its code for house renovations than those in the state’s law. The court held that as long as the city’s variance standards meet the minimum state statutory standards, nothing in the state statute prohibits the city from applying variance standards stricter than those set by the state. (June 10, 2019)

In Gross v. Iannuzzi, the Superior Court of New Jersey, Appellate Division, addressed whether a local development ordinance could prevent an owner of a condo from raising the structure in order to make the structure more resilient to potential flooding. The court found that N.J.S.A. 58:16A-103(d), a statute passed in the aftermath of Hurricane Sandy, serves to override any local ordinances restricting the modification of certain structures. As the owner’s condo was one that was damaged by Hurricane Sandy, N.J.S.A. 58:16A-103(a) allowed him to raise the structure provided that the construction was done for the purposes of making the structure more resistant to future flooding. (June 5, 2019)

In Worthington v. Mount Pleasant Township, the Commonwealth Court of Pennsylvania addressed the standard for party status in an appeal of a conditional use application. The court explained that an individual must have a substantial, direct, and immediate interest in the decision on the application to obtain party status. Because the plaintiff did not satisfy any of those elements in objecting to a natural gas development well on the basis of her granddaughter’s possible health concerns, the court held that she did not have party status. (June 6, 2019)

In Keller v. Bank of NY Mellon, the Superior Court of Pennsylvania held that the successful bidders of foreclosed properties waived their right to seek relief for improperly assessed transfer taxes because they failed to timely challenge the proposed distributions under the Pennsylvania Rules of Civil Procedure. Since there was an adequate statutory remedy available to the bidders, the bidders were precluded from seeking an unjust enrichment claim since equitable relief is only appropriate where the statutory remedy is inadequate. (May 24, 2019)

In Breskin v. Moronto, the New York Supreme Court, Appellate Division, 2d Department, addressed the elements for seeking specific performance of a contract for the sale of real property. To state a cause of action for specific performance of a contract for the sale of real property, a purchaser must show that (1) it substantially performed its contractual obligations and was ready, willing and able to perform its remaining obligations, (2) the seller was able to convey the property, and (3) no adequate remedy at law exists. Additionally, to support summary judgment, a purchaser must submit evidence demonstrating financial ability to purchase the property in order to demonstrate that it was ready, willing and able to purchase the property. The court found that the purchasers made a prima facie showing of their entitlement to judgment as a matter of law. (May 29, 2019)

In Barkan v. Zoning Board of Appeals of Truro, the Appeals Court of Massachusetts addressed whether the statute of repose barred the plaintiff’s claims to seek the tear down of an improperly permitted residence on the basis that the residence was not in continuous use for six years. Holding that the repose period began to run by the time construction began on the residence, the court explained that the statute does not require continuous use of the property. Rather, the repose period began to run, at the latest, by the time construction began on the improperly authorized building permit, which placed the property owner in violation of a zoning bylaw. (May 30, 2019)

In Martel v. Allegheny County, the Commonwealth Court of Pennsylvania addressed the proper forum to hear a property owners’ appeal for relief from property assessments ordered by the County Board of Assessment Appeals and Review (Board). The court held that the Second Class County Assessment Law specifically grants the Board the power and duty to hear all cases of appeals from assessments, and all complaints as to assessments and refunds. Therefore, the trial court properly dismissed the property owners’ appeal for failure to exhaust the remedies available under the Assessment Law. (May 22, 2019)

In Freeman-Bennett v. York County Board of Assessment Appeals, the Commonwealth Court of Pennsylvania addressed the evidentiary burden necessary to satisfy the financial need requirement to be eligible for tax exemption under the Military and Veterans Code (Act). The court held the Act requires that an actual determination has been made by the Commission, not the taxing authority, to establish financial need under this provision. A legal presumption that the Commission would likely have found in the taxpayer’s favor is insufficient to satisfy this burden as a matter of law. (May 17, 2019)

In Sandhill Acres MHC, LC v. Sandhill Acres Home Owners Association, the Supreme Court of Delaware analyzed an arbitration award under the Rent Justification Act where a community owner attempted to raise the rent for its homeowner-tenants after installing a new water filtration system. The court held that the proposed rent increase was adequately related to operating, maintaining, or improving the home community under the Act to justify the increase in rent. (May 14, 2019)

In MERSCORP v. Delaware County, the Supreme Court of Pennsylvania reviewed a corporation’s electronic registry system, which permits its members to transfer mortgage promissory notes between members by recording the transfers only in the corporation’s database and not in a county recording office. This allows the corporation’s members to avoid county recording fees. The court determined that 21. P.S. § 351 of Title 21, “Failure to record conveyance,” does not create a mandatory duty to record all mortgages and mortgage assignments in a county office for the recorder of deeds. The use of the word “shall” in the statute was intended to be directory, not mandatory. (April 26, 2019)

In Slice of Life v. Hamilton Township, the Supreme Court of Pennsylvania addressed whether web-based rentals of single family homes to vacationers for a few days at a time was a violation of a local residential zoning ordinance. The court held that the transient use of a house is not permitted in a residential zoning district that restricts use of single-family homes to a “single housekeeping unit.” (April 26, 2019)

In RCA Development, Inc. v. Zoning Board of Appeals of Brockton, the Supreme Judicial Court of Massachusetts addressed whether a divided lot was a subdivision, thus implicating Mass. Gen. Laws c. 41 § 81N, which requires a planning board’s approval of the subdivision. Mass. Gen. Laws c. 41 § 81L provides that land with sufficient frontage on a public way to satisfy the local zoning ordinance is not a subdivision for purposes of § 81N. Holding that the divided lot was not a subdivision under § 81L, the court explained that the lot had sufficient frontage on a public way to comply with the city’s zoning ordinance for lot-frontage at the time it was divided. Accordingly, the division of the lot did not require planning board approval. (May 1, 2019)

In D’Angelo v. North Strabane Township Zoning Hearing Board, the Commonwealth Court of Pennsylvania considered a facial challenge to the township’s zoning ordinance, which prohibited building a medical clinic in one district of the township. The court held that the zoning ordinance was lawful and did not constitute de facto exclusionary zoning because it only prohibited a stand-alone medical clinic in one district of the township and not the entire municipality. (April 17, 2019)

In Turco v. Prioleau, the Superior Court of Pennsylvania addressed the meaning of the phrase “legally occupied” in the Abandoned and Blighted Property Conservatorship Act. The court ruled that the phrase “legally occupied” means more than just possession of a property with permission. According to the court, the Act also requires the owner to maintain the property in accordance with municipal codes or standards for public welfare and safety. (March 29, 2019)

In Belliveau v. Phillips, the Superior Court of Pennsylvania addressed whether a default judgment in a quiet title matter was improper because it included persons not named in the action. The court held that the judgment was improper because the trial court did not have personal jurisdiction over parties that were not sued in the quiet title complaint. (April 1, 2019)

In U.S. Bank N.A. v. Manu, the Commonwealth Court of Pennsylvania addressed whether an order granting a property owner’s Motion to Redeem Premises and ordering the property owner to pay to the purchaser redemption costs plus interest by a date certain under the Municipal Claims and Tax Relief Act (Act) is an appealable “final order.” Because redemption was granted and payment ordered, all claims were disposed of and the order was final. The court further held that the payment procedure specified under the Act applies when a property owner files a Motion to Redeem Premises after a sheriff’s sale, but before the sheriff’s deed was acknowledged. (March 22, 2019)

In Algonquin Gas Transmission, LLC v. Weymouth, Massachusetts, the United States Court of Appeals for the First Circuit addressed whether the town of Weymouth’s denial of a permit under a local wetlands ordinance had the power to prevent the construction of a natural gas compressor station that had already received a federal permit. The court found that Weymouth ordinance was preempted, under a theory of conflict preemption with federal law. The court declined to address the broader question of whether the Weymouth ordinance was subject to field preemption(March 19, 2019)

In Apartment Association of Metropolitan Pittsburgh, Inc. v. The City of Pittsburgh, the Commonwealth Court of Pennsylvania addressed whether an ordinance violates the Home Rule Law. The ordinance added a new protected class based on the source of income to pay rent in an effort to prevent residential property owners from denying a person access to housing based on their source of income. The Home Rule Law prohibits a home rule municipality from determining duties, responsibilities or requirements placed upon businesses, occupations and employers. Because the ordinance places affirmative duties, responsibilities, or requirements on private businesses and employers, it violates the Home Rule Law. (March 12, 2019)

In In Re: Appeal of Penneco Environmental Solutions, LLC from the decision of the Zoning Hearing Board of the Borough of Plum, the Commonwealth Court of Pennsylvania, addressed whether a zoning challenge was ripe when a well owner had not yet obtained federal and state permits for the proposed conversion of its production oil and gas well into an underground injection well. The court found the matter was ripe for review and the issue of whether the zoning ordinance was in fact de jure exclusionary was sufficiently developed for review.(March 8, 2019)

In O’Layer v. Department of Community and Economic Development, the Commonwealth Court of Pennsylvania addressed whether the condemnation of property for the purposes of constructing part of a state highway, under 74 Pa. C.S. § 8109(b)(1), allowed the state commission to obtain both the surface and subsurface rights. The court held that, absent an express agreement regarding the subsurface rights, the state commission did not abuse its discretion by taking the subsurface rights, if it is determined that, at the time of the taking the state commission intended to take the surface and subsurface rights for the purpose of obtaining the necessary control over the land for the efficient construction and management of the highway. (March 5, 2019)

In Wells Fargo v. Zumar, the Superior Court of Pennsylvania addressed whether property can be sold at a sheriff’s sale if there is a restrictive covenant attached to the property preventing the specific lot from being sold without the concurrent sale of another specifically-identified lot. The court held that, while some restrictive covenants may limit the alienation of property by a sheriff’s sale, the underlying restraint on alienation must be limited and reasonable. (March 5, 2019)

In Joseph Scott, Sr. v. September 24th Street, LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a property seller was entitled to reform a fully executed contract of sale to convey real property to reflect a higher purchase price. The court concluded the seller was entitled to contract reformation and specific performance of the reformed contract, finding clear and convincing evidence that the price contained in the executed contract was the result of a scrivener’s error and did not reflect the price the parties had agreed before reducing their agreement to writing. The court observed that the seller’s asking price, the buyer’s first offer, and the parties’ negotiations all involved figures well above the price contained in the contract, and that the deal sheet reflected the true agreed-upon price. (February 26, 2019)

In Federal Home Loan Mortgage Corporation v. Bartleman, the Appeals Court of Massachusetts addressed whether, in a summary process action following a foreclosure, an affidavit of sale is admissible as a certified copy of a public record or whether it can only be admitted through a witness with personal knowledge of its contents. The court held that the statutory language requiring that the affidavit of sale “shall be admitted” is mandatory language and the judge should have admitted the certified copy of the affidavit into evidence. (February 20, 2019)

In JP Morgan Chase Bank NA (Substituted Plaintiff, Great AJAX Operating Partnership, LP) v. Taggart, the Supreme Court of Pennsylvania addressed whether a lender must provide a pre-foreclosure notice for a second action on the same property in a mortgage foreclosure under the Loan Interest and Protection Law. The court held that the purposes of the Law are served by requiring each action in mortgage foreclosure to be preceded by a separate pre-foreclosure notice. (February 20, 2019)

In Szabo v. Commonwealth of Pennsylvania Department of Transportation, the Supreme Court of Pennsylvania addressed whether a failure to file preliminary objections to a declaration of taking resulted in waiver under the Eminent Domain code. The court found that a failure to file preliminary objections within thirty days of service did not waive the right to assert ownership and seek just compensation because the declaration did not establish the extent or effect of the taking. (February 20, 2019)

In Smyth v. Conservation Commission of Falmouth, the Appeals Court of Massachusetts addressed whether a landowner asserting a regulatory taking is entitled to a jury under either the Fifth Amendment to the United States Constitution or art. 10 of the Massachusetts Declaration of Rights. At issue was the denial of the landowner’s variance requests from a wetlands protection bylaw. The court concluded that the jury right does not attach to regulatory takings (as it is not analogous to any common law claim entitled to trial by jury in 1780), and further determined that the facts presented did not support a claim of regulatory taking as a matter of law. (February 19, 2019)

In Casino Reinvestment Development Authority v. Birnbaum, the Superior Court of New Jersey evaluated a state agency’s asserted right to condemn and “bank” private property for future redevelopment without providing “reasonable assurance that the proposed redevelopment would come to fruition in the foreseeable future.” The court held that under the Local Redevelopment and Housing Law (LRHL), the proposed condemnation failed because the LRHL required the Casino Reinvestment Development Authority to find that a proposed condemnation was “reasonably necessary” for a “reasonably foreseeable future use,” and where the property owner challenged the determination of necessity and evidence indicated that funding for the redevelopment was in doubt, the Authority’s necessity finding was a “manifest abuse of power.” The court rejected the Authority’s claimed authority to “bank” land for future public use “without any temporal limitation.” (February 15, 2019)

In Maisano v. Avery, the Superior Court of Pennsylvania addressed whether the injured party to a defaulted real estate sales contract is entitled to specific performance. The court explained that a claim for specific performance in the real estate context is “in effect” a legal action for the purchase price of the property and held that the injured parties were entitled to the purchase price (less a retained deposit) in return for conveyance of the property. (February 15, 2019)

In Dobson Park Management v. Property Management, the Commonwealth Court of Pennsylvania determined that a protest letter with a notice of intent to reclaim used in the course of the sale of a condominium unit was insufficient to maintain a cause of action for the return of funds. The court concluded that a private party lacks the power of a court to reserve further proceedings. (February 13, 2019)

In Assalita v. Midtown Square Condominium Association, the Commonwealth Court of Pennsylvania considered a conflict between a condominium association’s declaration establishing the association and the association’s bylaws. The court held that, pursuant to Section 3203 of the Uniform Condominium Act, 68 Pa.C.S. § 3203, when there is a conflict between a condominium association’s declaration and its bylaws, the declaration controls. Because the declaration placed responsibility for maintenance of “limited common elements” on the individual owner, the court held that the owner, and not the association, was responsible for the cost of the subject repairs. (February 12, 2019)

In Jacobs v. Stephens, the Superior Court of Pennsylvania addressed how to partition a property originally intended to be held as tenants in common between and husband and wife after their marriage was declared invalid. The court determined that, even though the marriage was a nullity, the husband and wife intended to own the property jointly and were therefore tenants in common and the property should be partitioned between them. (February 10, 2019)

In Bellalta v. Zoning Board of Appeals of Brookline, the Supreme Judicial Court of Massachusetts addressed whether a variance was required to increase the preexisting nonconforming floor area ratio in a two-family house. Holding that no variance was required, the court reasoned that Mass. Gen. Laws. c. 40A, § 6 only requires the homeowner to show that the proposed modification would not be "substantially more detrimental" to the neighborhood than the existing nonconformity. (February 8, 2019)

In Becker v. Wishard, the Superior Court of Pennsylvania clarified that ejectment actions are possessory and can only succeed if the plaintiff is out of possession and has a present right to immediate possession. The court reiterated that a plaintiff must show title at the commencement of the action and can recover only on the strength of his own title and not because of weakness or deficiency of the defendant’s title. (January 8, 2019)

In Borough of Glassboro v. Grossman, the Superior Court of New Jersey held that for a municipality or redevelopment agency to condemn and acquire property for purposes of a redevelopment project under the Local Redevelopment and Housing Law, the condemning authority must articulate a definitive and specific need—supported by actual evidence—to obtain the real property in question. (January 7, 2019)

In Meyer v. City of Pittsburgh Historic Review Commission, the Commonwealth Court of Pennsylvania considered the propriety of using the United States Department of the Interior’s guidelines to determine the extent to which the owner of a home in a row designated as a historic district could make modifications to the home which differentiated it from other homes in the row. The court held that because the row had not adopted specific standards for home modifications, it was appropriate for the Review Commission to apply the Interior Department’s guidelines which do not require that all new construction replicate its historic neighbors; rather, the new construction must merely be “compatible” with the size, scale, and architectural features of the original. (January 7, 2019)

In Potter v. City of Wilmington, the Supreme Court of Delaware held that the City’s Licensing and Inspection Review Board had discretionary authority to choose the manner in which to enforce city building codes; accordingly, the court declined to issue a writ of mandamus requiring the city to enforce a prior Review Board decision. (January 7, 2019)

In In Re: Consolidated Appeals of Chester-Upland School District & Chichester School District from the Decisions of the Board of Assessment Appeals of Delaware County, the Commonwealth Court of Pennsylvania addressed whether the trial court correctly ruled that the presence of an outdoor advertising sign on a property may not be considered when determining the property’s fair market value for purposes of a real estate tax assessment. The court vacated the trial court’s order and remanded for further proceedings because, pursuant to the applicable case law, the income derived from the lease of a portion of real property to a billboard operator for advertising purposes must be considered in the property’s valuation. The trial court misinterpreted the Consolidated County Assessment Law, 53 Pa. C.S. 8811(b)(4), to exempt both the advertising sign and the income derived from the lease of the portion of property upon which it sits from a property’s fair market value for tax assessment purposes. The court determined that section 8811(b)(4) only exempts the sign itself, not the income generated by it. (December 27, 2018)

In Bathla v. 913 Market, LLC, the Supreme Court of Delaware addressed whether a buyer in a failed commercial real estate sale is entitled to the return of his deposit and is relieved of his obligation to close the deal when potential claims exist by a previous potential buyer who also failed to close. The court held that potential claims by the previous failed buyer did not cloud title because the previous buyer had not perfected (nor did it seek) a lis pendens claim. The court explained that the mere possibility that the previous potential buyer might later claim an interest in the property does not constitute a lien or encumbrance under the purchase agreement. (December 20, 2018)

In Residential Mortgage Loan Trust 2013-TT2, BY U.S. Bank National Association v. Morgan Stanley Mortgage Capital, Inc., the Superior Court of New Jersey, Appellate Division, examined whether a mortgage holder could file a general equity lawsuit to establish its status as a mortgage holder where the chain of title was unclear. The court held that the mortgage holder was permitted to join the mortgagors and all known entities with a possible interest in the mortgage and note; however, the mortgage holder was required to indemnify the mortgagors against any future claims from other entities who sought to enforce the mortgage or note. (December 19, 2018)

In Clear Channel Outdoor, Inc. v. Zoning Board of Appeals of Salisbury, the Appeals Court of Massachusetts addressed whether an abutter had standing to challenge a special permit that granted another property owner the ability to erect a digital billboard. The court held that the abutter had standing to challenge the permit because the permit directly affected the abutter’s ability to build a digital billboard on its property, thus affecting its use and enjoyment of its property. (December 18, 2018)

In In re Petition of the Wilkinsburg Taxpayers and Residents Interest in Green Street Park Sale to a Private Developer and other Park-Systems Conditions, the Commonwealth Court of Pennsylvania addressed whether a claim brought by a group of taxpayers seeking to void or condition the sale of property was barred by prior litigation concerning the property. The court held that, because the issues raised in the subsequent litigation were known to the taxpayers and could have been raised in the prior litigation, the claims were barred by the doctrine of res judicata. (December 17, 2018)

In Baron v. Suissa, the Supreme Court of New York, Appellate Division, 2d Department, addressed the application of the statute of frauds to several oral agreements between a cohabitating man and woman. While the statute of frauds prohibits the conveyance of real property without a written contract, as was allegedly agreed to here, a court may compel specific performance of an oral contract in cases of partial performance. As to the alleged oral agreements concerning the provision of domestic and legal services in exchange for support and sharing of business profits, the court found that agreements between cohabiting people are not per se required to be in writing. (December 12, 2018)

In N.J. Highlands Coalition v. New Jersey Department of Environmental Protection, the Supreme Court of New Jersey addressed whether a property owner was entitled to an exemption allowed under the Highlands Water Protection and Planning Act for the construction of affordable housing projects. The parties agreed that prior settlements entitled the property to the exemption, but disputed whether the exemption expired. The court held that the exemption was still in place because the plain language of the exemption meant that the three-year time limitation for construction did not start until after receiving “all final approvals.(December 13, 2018)

In Oasis Therapeutic Life Centers, Inc. v. Wade, the Superior Court of New Jersey, Appellate Division, addressed whether neighbors’ interference with the plaintiff's efforts to purchase property for use as a group home for autistic individuals violated the New Jersey Law Against Discrimination. The court held that it is unlawful to discriminate against a buyer because of the disability of a person intending to live on the premises, even if the buyer does not fit within the protected class. (December 10, 2018)

In Idea Boardwalk, LLC v. Revel Entertainment Group, LLC, the United States Court of Appeals for the Third Circuit addressed whether a tenant was permitted to reduce its outstanding rental obligations based on recoupment payments that the initial landlord agreed to make under a complex commercial lease before it filed for bankruptcy. The court held that the tenant was permitted to reduce its rental obligations under 11 U.S.C. § 365(h), which protects a tenant whose landlord files for bankruptcy and then rejects the tenant’s lease. (November 30, 2018)

In Cogan House Township v. Lenhart, the Commonwealth Court of Pennsylvania analyzed the difference between road maintenance and road construction/reconstruction for the purposes of determining if a township’s post road maintenance plan triggered the regulations of the Storm Water Management Act, the Department of Environmental Protection’s regulations, and the township’s Storm Water Management Ordinance. The court held that expansion, replacement of piping below the roadway, and changing the surface type were not mere maintenance and constituted construction or reconstruction. Thus, the township’s project was subject to, and therefore in violation of, all three regulations. (November 15, 2018)

In Deutsche Bank Trust Company Americas v. Weiner, the Superior Court of New Jersey, Appellate Division, addressed whether the statute of limitations enacted by the Legislature in 2009 on residential foreclosure actions barred an action filed seven years after the default on the mortgage. The court held that defaulting on the mortgage triggered the twenty-year limitation period under the statute and that the foreclosure action was still timely. The court also explained that based on the clear and unambiguous language of the statute, the six-year statute of limitations did not apply in this case because the triggering event for that limitation was the last payment or maturity date set forth in the mortgage or note. (November 8, 2018)

In Krodel v. Amalgamated Dwellings, Inc., the Supreme Court of New York, Appellate Division, 1st Department, addressed whether a lease provision requiring payment of attorneys’ fees to a landlord was enforceable where the landlord was in default. The court held that since the landlord was in default, the tenant did not have to pay the landlord’s attorneys’ fees because the provision was unconscionable and unenforceable as a penalty. (November 8, 2018)

In MB Shtetl 1 Corporation v. Singh, the Supreme Court of New York, Appellate Division, 2d Department, addressed the issue of specific performance on two contracts of sale for real property. The buyer and seller entered into the contracts in November 2014, but in February 2015 the seller advised that the sale would not occur. The court held that the buyer was not entitled to specific performance because the buyer failed to establish that it was ready, willing and able to proceed with the sale on the initial closing date by failing to eliminate issues of fact as to whether it had the financial ability to purchase the properties.(November 7, 2018)

In Transcontinental Gas Pipe Line v. Permanent Easements, the United States Court of Appeals for the Third Circuit was tasked with determining whether it was proper for Congress to grant a private company “quick take” eminent domain which allowed immediate possession of land for the purpose of building gas lines under the Natural Gas Act (NGA) 15 U.S.C. § 717f(h). The court held that a preliminary injunction permitting the private company to take immediate possession of land did not violate the separation of powers principle because the private company properly sought and obtained the substantive right to the property before seeking equitable relief. Congress did not intend to remove the judiciary’s access to equitable remedies to enforce the substantive immediate eminent domain right under the NGA, even though the NGA only granted standard condemnation powers to natural gas companies. The private company satisfied the three requirements under § 717f(h) and followed the standard condemnation procedure. (October 30, 2018)

In Rampersaud v. Hollingsworth, the Superior Court of New Jersey, Appellate Division, addressed whether a residential landlord could evict both the tenant and the subtenant for property damage that was wholly attributable to the subtenant. Interpreting the language of New Jersey’s Anti-Eviction Act, the court held that when a “tenancy-ending event” occurred, the landlord has the right to evict all tenants even if certain tenants were not responsible in bringing about the events that led to the ultimate eviction. In this case, the subtenant who caused the damage was subletting a portion of the apartment from another tenant who had entered a month-to-month lease with the landlord. The court found that the landlord’s eviction of both tenants was permissible because a landlord’s eviction power is applicable against both “blameworthy” and “innocent” tenants. (November 1, 2018)

In Wag-Myr Woodlands Homeowners Association v. Guiswite, the Superior Court of Pennsylvania determined the relevancy of the properties’ status as part of a subdivision to the properties’ liability at common law for maintenance of a shared easement. The homeowners association (HOA) was the successor in interest to a servient property containing a road, which was a shared easement allowing access to the homeowners’ properties. The HOA sought judgment for payment of HOA fees. The homeowners contended that although they have a duty to maintain the right of way, they have no obligation to pay any fees to the HOA, because its property interest was created after the creation of the easement. The homeowners also contend they cannot be required to pay the HOA because, although their deeds reference the easement, they do not contain a covenant requiring the owners to pay their proportionate share of maintaining the easement. The court reasoned that whether the homeowners knew they were buying property that would later be part of a residential development is not dispositive, because under the facts of this case, their properties undisputedly benefit from the easement and the deeds included the easement. Further, the court found the HOA is the successor in interest to the original owner of the property and the grantor of the easement. Therefore, the homeowners have a common law duty to pay the HOA their portion of the fees. (October 19, 2018)

In Turf Club OP Co. v. Department of Health Bureau of Health Promotion and Risk Reduction, the Commonwealth Court of Pennsylvania addressed whether an establishment holding an Off-Track Wagering Restaurant Liquor License was entitled to an exception to the general public smoking ban under the Clean Indoor Air Act. In this appeal, the prior decision denied their application for an exception because the establishment held an Off-Track Wagering Restaurant Liquor License instead of a Restaurant Liquor License, which would have entitled it to the exception. The court reversed the decision, explaining that even though the Pennsylvania Liquor Control Board issues Restaurant Liquor Licenses with various subset designations to different business entities, the Liquor Code itself only grants Restaurant Liquor Licenses(October 9, 2018)

In Wright v. Bank of America, the Superior Court of New Jersey, Appellate Division, determined whether a loan servicer’s failure to include the name and address of the lender in the notices of intention to foreclose as required by the Fair Foreclosure Act (FAA), N.J.S.A. 2A:50-53, et seq., could form the basis of a claim under the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14, et seq. The court found even though there was no suggestion the content of the notices was false or misleading – only that a legal requirement was omitted – this type of FFA violation may support a TCCWNA claim because, in enacting TCCWNA, the Legislature “chose expansive language to describe the consumers and potential consumers whom the statute was enacted to protect” and the statute may be triggered by a departure from any "clearly established legal right" or "responsibility.” (October 4, 2018)

In Lee v. Robertson, the Supreme Court of New York, Appellate Division, 2d Department, addressed the issue of whether plaintiffs’ time-of-the-essence letter was a “clear, distinct, and unequivocal notice to that effect giving the other party a reasonable time to which to act” in order to grant the plaintiffs’ motion for summary judgment on the complaint. There is no specific time period that is per se adequate, but rather, “what constitutes a reasonable time for performance depends upon the facts and circumstances of the particular case.” The court found the time-of-the-essence letter provided to the defendants did not give a reasonable time to close because the letter set the law date 13 days after the letter was sent. Thus, the plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law. The court upheld the lower court’s determination to deny the plaintiffs’ motion. (October 3, 2018)

In Smyland Beach Association, Inc. v. Genova, the Massachusetts Appeals Court addressed neighboring landowners’ property rights in an abutting roadway. The grantor of the landowners’ real estate had granted the landowners’ real estate, but had retained real estate that abutted the roadway in question. Holding that the neighbors’ property rights extended at right angles to the centerline of the road from their shared property line, the court extended the long-standing presumption that abutting landowners’ property rights in an abutting riverbed extends at right angles to the center of the riverbed from their shared property line unless the grantor expressly states otherwise. In extending this presumption to an abutting roadway, the court reasoned that the derelict fee statute, Mass. Gen. Laws c. 183, § 58, applies equally to real estate abutting roadways as it does rivers. (September 25, 2018)

In Second Ave. 1355 Realty LLC v 1355 Second Owner LLC, the Supreme Court of New York, Appellate Division, 1st Department, addressed an alleged breach of contract between a buyer and seller of real estate. In this action, the buyer alleged that the seller breached an agreement for the purchase of a building by failing to deliver the building free of residential tenancies pursuant to the agreement. Although the seller conceded that it did not meet the condition precedent to deliver a vacant building, the seller maintained that the buyer waived the condition precedent. The court found that no waiver of the condition precedent occurred because the waiver was not expressly made in writing. In its decision the court further noted that communication between the parties did not address this waiver and instead discussed the seller’s efforts to fulfill the condition precedent. (September 25, 2018)

In Medlock v. Chilmark Home Inspections, the Superior Court of Pennsylvania determined whether a residential home seller violated its duty under the Pennsylvania Real Estate Seller Disclosure Law (RESDL), by failing to disclose in the seller’s disclosure statement that it made additions/remodeling/structural changes to the basement. The court found that Section 7308 of the RESDL does not limit the seller’s affirmative duty to disclose to only “known material defects.” Rather, the court found that, by its plain, unambiguous language, Section 7308 affirmatively requires the seller to “not make any representations that the seller or the agent for the seller knows or has reason to know are false, deceptive or misleading” in the disclosure statement. (August 31, 2018)

In Cona v. Township of Washington, the Superior Court of New Jersey, Appellate Division, held that the defendant municipality's license fees on multi-family rental property owners were beyond its regulatory powers authorized by statute. The court outlined that municipality’s power to regulate was discrete from and did not include the power to license. However, the Court determined that the municipality could still charge fees to assist with carrying out its regulatory authority, but not as “license fees.” (August 19, 2018)

In 130 Third Street Loft, LLC v. HKF, Inc., the New York Supreme Court, Appellate Division, 2d Department, addressed the right of a purchaser of real property to specific performance under a contract. The court held that the purchaser was not entitled to specific performance of the contract as it was in default for failing to appear on the agreed-upon closing date. (August 22, 2018)

In Cherokee LCP Land, LLC v. City of Linden Planning Board, the Supreme Court of New Jersey, Appellate Division, held that a tax lienholder under New Jersey's Tax Sale Law could be an "interested party" under the Municipal Land Use Law and have standing to challenge a planning board's approval of a land-use application for a neighboring property. The court outlined that the purchaser of a tax-sale certificate obtains the right to acquire title by foreclosure and that this right fell within the “interested party” definition which includes any person whose right to use, acquire, or enjoy the property is or may be affected. However, the court cautioned that standing remains a case-by-case analysis to determine whether the tax lienholder's rights are or may be affected by the action. (August 2, 2018)

In Kapcsos v. Benshoff, the Superior Court of Pennsylvania, held that a procedural error was fatal to the court’s appellate jurisdiction in a partition action. Court rules require a trial court to determine whether a property is partitionable under law (Part 1) before moving on to an equitable ruling on how to partition or whether to sell the property (Part 2). Part 1 must be secured and recorded before a trial court has jurisdiction to proceed onto the Part 2 adjudication. A Part 2 order is not a final order on the merits of a case if not preceded by a secured and recorded Part 1 order and is therefore not appealable to an appellate court. (July 27, 2018)

In Vetri Navy Yard, LLC v. Department of Community and Economic Development of the Commonwealth of Pennsylvania, the Commonwealth Court of Pennsylvania addressed whether the Department of Community and Economic Development could recapture tax benefits it awarded to a restauranteur who sold its restaurant located in a Keystone Opportunity Improvement Zone (KOZ). The business owner’s voluntary sale of the restaurant and cessation of operations was a “relocation” under the Keystone Opportunity Improvement Zone Act since the business owner was no longer actively conducting the business within the KOZ and, therefore, the Commission could recapture the tax benefits paid to the restauranteur. It was immaterial that the restaurateur had not opened a new business at a different location outside the KOZ because it had effectively relocated its active operations into non-existence. (July 16, 2018)

In Wayne Land and Mineral Group LLC v. Delaware River Basin Commission, the United States Court of Appeals for the Third Circuit considered whether the Commission had authority to review the proposed fracking activities of a company who wanted to obtain natural gas by fracking gas reserves in Pennsylvania based on an interstate compact, which gave the Commission a broad range of powers to protect the water quantity and quality within the Delaware River Basin. Since the court determined that the word “project” was ambiguous in the compact, the court remanded the case for fact-finding on the intent of the compact’s drafters. (July 3, 2018)

In Harz v. Borough of Spring Lake, the Supreme Court of New Jersey considered whether a homeowner who challenges the issuance of a zoning permit allowing construction on a neighboring property has a right, under the New Jersey Civil Rights Act, to be heard before the Borough’s Planning Board. The court held that the Civil Right Act creates a cause of action for alleged violation of “substantive rights” and a homeowner’s right to be heard before a Borough’s Planning Board constitutes a “substantive right” for purposes of the Act. However, in this particular case, because the homeowner did not exhaust the statutory process for obtaining such a hearing before the Borough’s Planning Board, her civil rights were not violated. (June 26, 2018)

In Capital One, N.A., v. Peck, the Superior Court of New Jersey, Appellate Division, held that a bank seeking to foreclose on a mortgage was required to hold the note and have a valid mortgage assignment prior to filing the foreclosure action. The court held that even though the bank did not possess the note when it filed this foreclosure action, it did previously possess both the original note and assignment at a prior foreclosure proceeding that was dismissed for other reasons. Even though the bank then returned the note to the investor before filing the foreclosure action at issue, the court held that reversal of the foreclosure judgment was not warranted because the bank previously possessed the note and assignment at the previous foreclosure action, there was the notice that the bank worked as a servicer for the note holder/investor, and the investor had a publicly declared policy that it forecloses through its servicers. (June 18, 2018) 

In Phelps v. Caperoon, the Superior Court of Pennsylvania held that an "as is" clause in a real estate sales contract did not negate the requirement under the Real Estate Seller Disclosure Law (RESDL) that a seller provide a buyer with a disclosure form. The court emphasized that the RESDL contains mandatory language that provided no exceptions to the disclosure requirements. Additionally, the court held that the measure of actual damages under the RESDL for this violation may be determined by repair costs, capped by the market value of the property. (June 18, 2018)

In 45 Renwick Street, LLC v. Lionbridge, LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a buyer had a lawful basis for refusing to close on a property. The court held that the buyer did not have a lawful basis to refuse to close because an easement-covenant on the property, which benefited the property and was evident in the title survey, was a “permitted exception” as defined in schedule 1.21 of the sale contract. Therefore, the court held that the buyer materially breached the contract when it failed to appear on the time-is-of-the-essence closing date, and, under the limited amendment to the Contract of Sale, the seller is entitled to retain the deposit as liquidated damages. (June 21, 2018) 

In Hickey v. Zoning Board of Appeals of Dennis, the Appeals Court of Massachusetts held that an appeal of a decision by a town zoning board of appeals could proceed in Superior Court because, although the plaintiff had not served the complaint and notice on the town clerk within the 20-day period required by statute, the town’s assistant clerk had actual notice of the complaint within the statutory period. (June 15, 2018)

In 936 Coogan’s Bluff, Inc. v. 936-938 Cliffcrest Housing Development Fund Corporation, the New York Supreme Court, Appellate Division, 1st Department, addressed whether building residents’ claims for fraud and conspiracy to commit fraud were sufficiently detailed. The residents alleged that the management company and the Department of Housing Preservation and Development conspired together to induce the building residents to purchase units by making knowingly false representations about their intention to complete renovations and that the residents relied on these representations. In support of the fraud allegations, it was alleged that the renovation work was contracted to a defunct entity, that the management company and the Department of Housing Preservation diverted funds given to them by the residents, and that the residents were left with defective homes and an uninhabitable building. The court held that these allegations were sufficiently detailed to state causes of action for fraud and conspiracy to commit fraud(June 12, 2018)

In Johnson v. Phelan Hallinan & Schmieg, the Superior Court of Pennsylvania addressed whether the term “residential mortgage” in Section 406 of the Pennsylvania Loan Interest and Protection Law, 41 P.S. 101 et seq. (Act 6) should be construed pursuant to its definition in effect at the time the plaintiffs’ mortgage was executed, or pursuant to the 2008 amended definition in effect at the time foreclosure proceedings were initiated. The court held that the 2008 amendment revealed no indication by the General Assembly that the amended definition was “clearly and manifestly” intended to apply retroactively to mortgages executed prior to its effective date. Therefore, the amendment must be construed as taking effect on the date selected by the General Assembly, i.e., September 8, 2008. (June 1, 2018)

In Bayview Loan Servicing, LLC v. Lindsay, the Supreme Court of Pennsylvania addressed whether, following the lender’s discontinuance of a mortgage foreclosure action, the debtor is entitled under the Loan Interest and Protection Law (Act 6) to recover attorney’s fees arising from the assertion of his affirmative defense. The court held that to be entitled to an award of attorney’s fees under section 503(a) of Act 6, the debtor must commence an “action” asserting a violation of section 403(a) and prevail. Because an affirmative defense is not an “action” for purposes of Act 6, the court concluded that the debtor was not entitled to an award of attorney’s fees. (June 1, 2018)

In Corinne Ciringione v. John Ryan, Inc., the Supreme Court of New York, Appellate Division, 2d Department, considered whether the plaintiff established, by clear and convincing evidence, she had prescriptive easement over property owned by the defendants. The court held because the plaintiff could establish that her use of the defendant’s driveway to park her automobiles was open and notorious, continuous and undisputed for the 10 years, she in fact had a prescriptive easement over the subject real property. (June 6, 2018)

In Springer Science + Business Media LLC v. Soho AOA Owner LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed whether the plaintiff breached the anti-assignment provision of its commercial lease with the defendant landlord. The lease restricted “assignments” by “Tenant” only. “Tenant” was defined as the plaintiff and “assignments” were defined as the transfer of “a majority of the . . . stock of the stock . . . of any corporate tenant” or “a majority of the total interest in any . . . . limited liability company[.]” The court held the plaintiff did not breach the anti-assignment provision because there was no transfer of the majority interest in the plaintiff. The court found it immaterial that there was a change in ownership of the ultimate parent of the corporate conglomerate of which the plaintiff was a part. (May 17, 2018)

In Williams v. Henry L. Taylor and MT. Valley Farms and Lumber Products Inc., the Superior Court of Pennsylvania denied a timber company’s prescriptive easement. The timber company sought a prescriptive easement to use a private lane running across a piece of wooded property, which the property owner opposed. The property owner argued that the Pennsylvania Unenclosed Woodlands Act barred the granting of a prescriptive easement on his wooded property. The timber company argued that the property in question was not sufficiently densely wooded, nor contained sufficiently merchantable timber to be covered by the act. The court held that the Unenclosed Woodlands Act intended to broadly protect all woodlands and their owners from encroachment and the owner’s property fell under its protections. (May 11, 2018)

In Murrow v. Esh Circus Arts, LLC, the Appeals Court of Massachusetts addressed whether a neighborhood resident has standing to challenge modification to a special permit approved by a city’s zoning board of appeals. The property’s owner received a special permit to increase the floor area and alter the site plan of a previously permitted circus school. The court held that the neighborhood resident challenging the permit modification was neither a party in interest (as defined by statute) entitled to a rebuttable presumption of aggrievement, nor had she met the burden to plead that she is aggrieved by the application for the special permit. (May 17, 2018)

In Rental Property Management Services v. Hatcher, the Supreme Judicial Court of Massachusetts addressed whether a manager for a property who is neither owner nor lessor, claiming to be the agent of the owner, has standing to file a summary process complaint to evict a tenant. The court concluded not only that a manager has no standing to pursue a summary process complaint, but also that doing so constitutes the unauthorized practice of law (where the manager is not an attorney) and also that a court presented with such a complaint should dismiss the action for lack of subject matter jurisdiction, regardless of whether a motion to dismiss has been filed. (May 15, 2018)

In Friends of Lackawanna v. Dunmore Borough Zoning Hearing, the Commonwealth Court of Pennsylvania held that property owners had standing to appeal a zoning hearing board's decision to allow upward expansion of a landfill. The court found that the property owners demonstrated a direct, immediate and substantial interest in the landfill expansion required for standing because their residential property was within a half mile from the landfill and their complaints of rotting garbage odors, dust, bird droppings and truck traffic emanated from the landfill use. (May 7, 2018)

In CitiMortgage, Inc. v. Comini, the Superior Court of Pennsylvania addressed whether a right of first refusal (ROFR) clause in a deed survives a foreclosure action. The court held that a ROFR is created by a contract and, as such, is personal to the contracting parties; it is not a covenant that runs with the land and therefore does not bind future parties to that same contract. (April 20, 2018)

In Aurora Loan Services, LLC v. Nwaorgu, the Superior Court of New Jersey addressed whether notice of a foreclosure sale was sufficient where the posting listed the proper property address but referenced the case number of a prior foreclosure proceeding for the same mortgage. The court held that where the mortgagor was aware of both the prior and present foreclosure proceedings and it was clear that the mortgagor had notice of the sale, the sheriff’s sale need not be vacated or declared void. (April 11, 2018)

In In re Condemnation by the Pennsylvania Turnpike Commission, the Commonwealth Court of Pennsylvania considered whether the property owner’s expert could rely on a hearsay affidavit in rendering an opinion regarding the value of the condemned property. The court held that the property owner’s expert was permitted to rely on the affidavit because the information contained in the affidavit was the type upon which valuation experts would reasonably rely. Likewise, the court held that the land owner’s expert was permitted to read directly from the affidavit during his testimony. (April 10, 2018)

In Metropolitan Lofts of NY, LLC v. Metroeb Realty 1, LLC, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a contract for the sale of real property was valid and enforceable. The court explained that whether the parties entered into a binding contract is dependent on the parties’ objective manifestations of intent. In finding that a complete and enforceable contract was formed, the court explained that the contract contained all of the essential terms of a contract for the sale of real property: it designated the parties and identified and described the subject matter of the contract. In addition, no provision in the contract indicated that an additional signed agreement was necessary to create a binding agreement, and even if the parties had anticipated that a more formal agreement would be executed, the contract is enforceable if it contains all of the essential terms of the agreement. (April 4, 2018)

In Philadelphia v. Galdo, the Commonwealth Court of Pennsylvania considered whether an individual could acquire title to property owned by the City of Philadelphia through adverse possession. The City of Philadelphia argued that it was entitled to share in the Commonwealth’s immunity because it was holding the property in question as an agent of the Commonwealth. The court disagreed, holding that the City of Philadelphia was not entitled to the Commonwealth’s immunity because there was no legal obligation of the City to hold the property for the benefit of the Commonwealth. (March 28, 2018)

In Woodhouse Hunting Club, Inc. v. Hoyt, the Superior Court of Pennsylvania addressed whether a party’s subsurface rights in property are divested by a tax sale. The court found that, where the assessment and tax sale are not challenged within a two-year redemption period, both the surface and subsurface rights are extinguished. The court further found that, where the record contains reliable indicia that a tax sale occurred, the absence of a recorded deed does not prohibit quieting title. (March 29, 2018)

In York OPA, LLC v. Commonwealth of Pennsylvania, Department of Transportation, the Commonwealth Court of Pennsylvania addressed the issue of whether the trial court had subject matter jurisdiction to determine the title of property to which the Commonwealth claimed ownership. The court held that the trial court did not have subject matter jurisdiction because Section 1207 of the Administrative Code, 71 P.S. § 337, vests the Board of Property with exclusive jurisdiction to determine the title to real estate where private property owners and the Commonwealth claim an interest in the same real estate. (March 20, 2018)

In Bruno v. Zoning Board of Appeals of Tisbury, the Appeals Court of Massachusetts addressed whether the statute of limitations for challenging the subdivision of a property into two lots – a lot with the main house and an undersized lot containing a guest house – ran from the transfer of the larger lot in 2005 that first removed the parcels from common ownership or the endorsement of the subdivision as “approval not required” by the planning board in 2001. Because the common-law merger doctrine holds that adjacent nonconforming lots in common ownerships are treated as a single lot for zoning purposes, the court concluded that the non-conformity arose only with the 2005 conveyance. (March 19, 2018)

In Citadel Realty, LLC v. Endeavor Capital North, LLC, the Appeals Court of Massachusetts addressed whether denial of a special motion to dismiss pursuant to the lis pendens statute can be appealed only with respect to the portions of the claim relating to lis pendens or to other claims as well. Here, the former owner who had lost the property at a foreclosure sale unsuccessfully sought approval for a memorandum of lis pendens to be recorded against the property, where they had filed a complaint that included a declaratory judgment count seeking title to the real property, as well as claims for damages. The court concluded that review is limited to those portions of the interlocutory order supporting the memorandum of lis pendens. (March 19, 2018)

In Assouline v. Reynolds, the Superior Court of Pennsylvania addressed whether a magisterial district judge had subject matter jurisdiction over an eviction proceeding where there was no lease agreement or landlord-tenant relationship. The court held that the magisterial district judge did have subject matter jurisdiction over the action because the civil claim did not exceed $12,000 and the party with a possessory interest in the property was entitled to rent in arrears based upon unjust enrichment and a contract implied in law. (March 9, 2018)

In L.I. City Ventures LLC v. Sismanoglou, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a broker earned a commission in connection with the sale of real property, based on an exclusive brokerage agreement, when the buyers allegedly transferred the property via a two-step transaction for the purpose of evading the discovery of the purchase and the commission payment. The court held that the complaint stated causes of action for both unjust enrichment and tortious interference with contract because: (1) the buyer knew the broker was the exclusive broker for the property and the buyer’s knowledge is imputable to the remaining buyers; and (2) the broker sufficiently alleged that the seller had substantive dealings with the broker, from which it can be inferred that he knew of the exclusive brokerage agreement(February 22, 2018)

In Ninety Six, LLC v. Wareham Fire District, the Appeals Court of Massachusetts addressed whether a municipality’s water betterment assessment on a parcel of undeveloped land was proper. The municipality had assessed the property based on the maximum number of lots that could be created from each parcel, including potential subdivision lots that each parcel could yield. Holding that the municipality could allow the water betterment assessment to be based on the development potential of the land, the court reasoned that the municipality need not only consider the zoning by laws when reaching its determination. The court explained that Mass. Gen. Laws c. 40, § 42K, provides that “[p]otential water units shall be calculated on the basis of zoning in effect at the date of assessment.” While this provision requires consideration of zoning laws in effect at the time of the assessment, it does not preclude consideration of other laws relevant to the development potential of the land. (February 14, 2018)

In Nutter & Company v. Estate of Murphy, the Supreme Judicial Court of Massachusetts addressed whether a mortgagee’s reverse mortgage standard form provision regarding the mortgagee’s ability to invoke a power of sale incorporated the statutory power of sale set forth in Mass. Gen. Laws. c. 183, §21, thus allowing the lender to foreclose on a property. The provision provided that the “[l]ender may invoke the power of sale and any other remedies permitted by applicable law” in the event of a default on its mortgage. The court explained that despite the ambiguous language that was drafted by the lender, no reasonable borrower would expect a lender to enter into a reverse mortgage without the mortgagee retaining a power of sale. Since no power of sale in Massachusetts exists except for the statutory power of sale, the Court held that such language incorporated the statutory power of sale. (January 18, 2018)

In Kuzmich v. 50 Murray Street Acquisition LLC, the Supreme Court of New York, Appellate Division, 1st Department, considered whether a dwelling in a building receiving Real Property Tax Law § 421-g benefits can be deregulated upon setting the initial rent at or above the deregulation threshold. The court held a dwelling can be deregulated by setting the initial rent at or above the deregulation threshold and a dwelling does not need to be first registered as a rent-stabilized apartment to become deregulated. (January 18, 2018)

In Berner v. Montour Township Zoning Hearing Board, the Commonwealth Court of Pennsylvania addressed the burden of proof and whether the Nutrient Management Act preempted compliance of an applicant seeking a special exception application for a swine nursery barn and under building for manure storage. The court determined that the applicant, not the objector, bears the burden regarding compliance with the special exception requirements to the zoning ordinances. Additionally, the applicant's proposed use was not preempted by the Nutrient Management Act because he did not prove compliance with the Act's requirement of an approved nutrient management plan. (January 4, 2018)

In 37 E. 50th Street Corporation. v. Restaurant Group Management Services, LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed the meaning of a lease between a property management company and restaurant. The court refused to find certain language inoperative, noting that these sentences were not mere recitals or “whereas” clauses, and that any other interpretation would render the contractual clauses meaningless. Additionally, the court found it relevant that the draft of the lease showed that the parties had specifically negotiated the language at issue. (December 28, 2017)

In Reihner v. City of Scranton Zoning Hearing Board, the Commonwealth Court of Pennsylvania addressed whether the landowners’ rental of several bedrooms in their home through the Airbnb website constituted a “Bed and Breakfast Use,” which was prohibited under the City’s zoning ordinance. The ordinance defined “Bed and Breakfast Use” to mean, in part, use of a single family dwelling for rental of overnight sleeping accommodations and “which does not provide any cooking facilities or provision of meals for guests other than breakfast.” The landowners did not provide their renters any cooking facilities or meals, including breakfast, but the Zoning Hearing Board argued that the provision of breakfast was only a permissive activity and not required in order to meet the definition. The court rejected the Board’s interpretation because it effectively read the term “breakfast” out of the ordinance and, therefore, the ordinance did not unambiguously prohibit the type of rental activity at issue. As such, the court held the ordinance had to be interpreted in favor of the landowners and the least restrictive use of the land. (December 8, 2017)

In 139 Lefferts, LLC v. Melendez, the New York Supreme Court, Appellate Division, 2d Department, addressed the priority as between two purchasers of the same real property conveyed by the seller. The prospective purchaser entered into a contract of sale and provided the down payment to the seller on August 5, 2014. The prospective purchaser never recorded the contract. Subsequently, on November 11, 2014, the seller entered into another contract with the second purchaser, with the deed delivered to the second purchaser on November 21, 2014, and recorded on December 27, 2014. The prospective purchaser commenced the action for specific performance, and filed a notice of pendency on December 11, 2014. In granting the second purchaser’s motion for summary judgment dismissing the complaint as against him, the court held that the second purchaser was a bona fide purchaser for value under Real Property Law §§ 291 and 294 because he did not purchase with “knowledge of facts that would lead a reasonably prudent purchaser to make inquiry.” The priority is given to the buyer “whose conveyance or contract is first duly recorded,” and recording of the notice of pendency is not a substitute for the recording of a conveyance or a contract. (December 13, 2017)

In In re G.J.K. & Sons LLC, the Superior Court of Pennsylvania addressed whether an action can be commenced by filing a “Motion to Remove Deed from Record” as opposed to filing a praecipe for a writ of summons, filing a complaint, or commencing an action to quiet title. The court held that an action cannot be commenced by filing a “Motion to Remove Deed from Record” and parties are required to file a complaint, summons, or amicable agreement to bring an action. (December 1, 2017)

In City of Bethlehem and the United State of America v. Kanofsky, the Commonwealth Court of Pennsylvania addressed the City’s petition for appointment as a conservator of property under the Abandoned and Blighted Property Conservatorship Act. The court held that the petition was supported by the credible testimony of the city's three witnesses contained in the evidence of record. However, the property owner did not introduce any evidence in support of his arguments that the city was responsible for the condition and damage in the property, repeatedly trespassed on the property, and engaged in concerted efforts to remove him. (November 29, 2017)

In Nigro v. City of Philadelphia, the Commonwealth Court of Pennsylvania addressed whether the Salary Reduction Ordinance to the Commissioners of the Board of Revision of Taxes (BRT) of the City of Philadelphia was unconstitutional in its entirety. The BRT assessed the value of real property in Philadelphia, examined tax returns, and heard appeals from assessments, but was abolished by the Philadelphia City Council through the adoption of the Reorganization Ordinance, which replaced the BRT with the Office of Property Assessment. Prior to the Reorganization Ordinance coming into effect, the City Council adopted the Salary Reduction Ordinance, which reduced the annual salaries of the BRT members. The court held that because the Salary Reduction Ordinance did not take place during the term of the BRT members, the ordinance was not unconstitutional in its entirety. (November 21, 2017) 

In Gravel Hill Enterprises, Inc. v. Lower Mount Bethel Township Zoning Hearing Board, the Commonwealth Court of Pennsylvania held that intervenors to a land-use dispute who had stipulated that they had no power to veto a settlement agreement did not waive their right to appeal the lower court’s decision as to whether to approve the settlement agreement. However, by agreeing via stipulation to a certain method of challenging the settlement agreement, intervenors were afforded a full and fair opportunity to be heard and, therefore, no deprivation of procedural due process occurred. (October 31, 2017)

In Bank of America, N.A. v. Brannon, the New York Supreme Court, Appellate Division, 1st Department, considered whether the failings in supporting affidavits to a motion for summary judgment affect the viability of the action as a whole or simply the ability of the court to grant the motion. The Court held that substitution, nunc pro tunc, of newly-signed affidavits in a mortgage foreclosure action to comply with Administrative Order 431/11 would be permitted. The Court further held that flaws in the notarization of an affidavit are not fatal unless the party can demonstrate that a substantial right has been prejudiced. (October 31, 2017)

In Phillips v. Equity Residential Management, the Supreme Judicial Court of Massachusetts addressed a question of law referred by the United States Court of Appeals for the First Circuit: whether a tenant is entitled to triple damages where the statement of damages provided by a landlord fails to meet statutory requirements. Massachusetts statute requires that a landlord provide a statement of damages within 30 days, sworn under the pains and penalties or perjury and accompanied by written evidence of the cost of repairs. Here, the landlord’s list was provided after 30 days, was not sworn, and not supported by documentation of repair costs. The court concluded that the statute intends the landlord’s errors regarding the statement of damages to result only in forfeiture of the landlord’s right to retain any of the security deposit, but not in triple damages. (October 25, 2017) 

In Hayes v. Harvey, the United States Court of Appeals for the Third Circuit examined whether the enhanced voucher provision of the United States Housing Act of 1937 requires property owners to continuously renew enhanced-voucher tenancies. The court held that property owners were not required to show cause to terminate enhanced-voucher tenancies through nonrenewal after the initial lease term, and the tenants had no right to remain because the United States Housing Act of 1937 does not explicitly provide a right to remain for tenants at the end of a lease’s natural term(October 18, 2017)

In Wells Fargo Bank, N.A., v. Linda M. Lilley, the Supreme Court of New York, Appellate Division, 2d Department, addressed whether under CPLR 3215(c) a defendant’s failure to appear or answer in a foreclosure action is grounds for granting a plaintiff’s motion for default. The court held that the plaintiff established a prima facie entitlement to the default by submitting the mortgage, unpaid note, an affidavit of merit of its vice president of loan documentation, the complaint, and evidence that the defendants defaulted on their payment obligations and failed to appear or answer the complaint in the time allowed. (October 11, 2017)

In Onewest Bank, N.A., v. Roy Mahoney, Jr., the Supreme Court of New York, Appellate Division, 2d Department, addressed what amount of evidence is necessary for a bank to establish standing in a reverse mortgage foreclosure action under RPAPL 1303. The court held that a bank can show standing under RPAPL 1303 by virtue of its possession of the note at the time of the commencement of the action. (October 11, 2017) 

In Singh v. Ahamad, the New York Supreme Court, Appellate Division, 2d Department, held that sale to a good faith purchaser who acquires property for value during the pendency of a foreclosure appeal “is not vitiated by the purchaser’s actual knowledge of the appeal.” The court explained that the former homeowner was required to obtain a stay of the foreclosure proceedings to prevent a bona fide purchaser from claiming title to the property. (October 4, 2017)

In Rife v. One West Bank, F.S.B., the First Circuit Court of Appealsheld that a homeowner’s time-barred claim against the servicers, holders, and assignees of his mortgage loan under the Massachusetts Predatory Home Loan Practices Act was not subject to equitable tolling because the terms of the loan agreement had been in the homeowner’s possession since the inception of the loan. Therefore, with reasonable diligence, he could have discovered and initiated his claim within the statute of limitations. (September 29, 2017)

In Grunbaum v. Nicole Brittany, Ltd., the New York Supreme Court, Appellate Division, 2d Department, held that, in order to prevail in an action for specific performance of a contract for the sale of real property, the purchaser must establish that “it substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations, that the vendor was able to convey the property, and that there was no adequate remedy at law.” In moving for summary judgment, the purchaser must demonstrate that it had the financial ability to pay for the property at the time of the scheduled closing, and where the purchaser fails to proffer such evidence, the purchaser fails to meet its initial burden, and the motion for summary judgment directing specific performance must be denied. (September 27, 2017)

In Perry v. Aiello, the Appeals Court of Massachusetts addressed whether a ninety-year-old grocery store could utilize a shared passageway behind its property to park and remove trash, where a 1947 agreement between the predecessors in interest of the store and its neighbors, which specified allowed uses of the passageway. Each property owned to the center of the passageway for the portion abutting its property, and each property had a deeded easement to use the entire passageway for right of passage. The court concluded that any provisions in the 1947 agreement that restricted pre-existing rights were restrictions rather than easements, and as such expired fifty years after the agreement pursuant to Massachusetts statute. (September 19, 2017)

In Christ the Rock World Restoration Church International, Inc. v. Evangelical Christian Credit Union, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a buyer breached a contract providing for the buyer’s purchase of real property which provided that the contract would be deemed cancelled if either the Supreme Court or the Attorney General denied permission for the transaction. The court held that the complaint did not allege that the buyer breached a binding contract because it was undisputed that the Attorney General denied permission for the transaction and therefore, by its terms, the contract terminated. The court also held that the allegations that after the contract was deemed cancelled, the parties agreed to a execute a new written contract providing that the buyer would lease the premises to the seller but that the buyer refused to execute a new contract was insufficient to allege claims for fraud in the inducement and tortious misrepresentation. In so holding, the court explained that dismissal was proper because the complaint failed to allege with sufficient particularity the time and dates of the alleged material misrepresentations and reasonable reliance on any alleged material misrepresentation(September 13, 2017)

In O’Neill v. The Philadelphia Zoning Board of Adjustment, the Commonwealth Court of Pennsylvania considered whether a city councilperson has standing to appeal the Philadelphia Zoning Board of Adjustment’s grant of a variance to a developer. The court held that the councilperson did not have standing to appeal the decision under the Home Rule Act as he was neither an “aggrieved person” nor a “governing body” as contemplated by the Act. Further, the court held that, because the variance involved a private driveway not a city street, there was no usurpation of the councilperson’s official authority over streets. (August 30, 2017)

In Montclair State University v. County of Passaic, the Superior Court of New Jersey, Appellate Division determined whether a local government’s limits to regulate development of a state university’s property apply to a state university’s construction of a roadway that intersects with a county road. The Court held that a state university has an obligation to consult and consider local concerns when formulating and executing its plans. (August 23, 2017)

In Estate of Vertley Clanton v. City of New York, the New York Supreme Court, Appellate Division, 2d Department, addressed whether the city validly obtained title to real property through adverse possession. For at least 30 years, the city had been using property belonging to an estate as a truck parking lot, during which time it paved the property, fenced it in, and installed lighting. Then, in 2007 the estate claimed that it had ownership of the property because it had been paying tax payments over the years which the city had collected. Because the adverse possessor’s property right vested before the enactment of the 2008 amendments to the RPAPL (L 2008, ch 269, § 35), the court applied the pre-2008 law. The court held that the city had obtained title to the property through adverse possession because its possession was actual, open and notorious, exclusive and continuous for at least 10 years, and the mere payment of taxes by the estate was insufficient to rebut the presumption of adversity. (August 23, 2017)

In Saturday Family LP v. Commonwealth of Pennsylvania, the Commonwealth Court of Pennsylvania held that the Commonwealth was bound by the clear terms of its own regulation which provides that a lease for real property for a term of 30 years or more is subject to Pennsylvania realty transfer tax. However, renewals or extensions at the option of the lessee at fair rental value are not included when determining the term of a lease. Therefore, the lease of Saturday Family LP which provides an initial term of less than 30 years, but provides the tenant with the option to renew the lease at fair market value, is not subject to the Pennsylvania realty transfer tax. (August 15, 2017)

In DePolo v. Board of Supervisors of Tredyffrin Township, the Commonwealth Court of Pennsylvania addressed whether a property owner could “transfer” his federal complaint to a state trial court under Section 5103 of the Judicial Code, to act as an appeal from a zoning board decision. The court held that the case could not be transferred to a state court because the federal court system had proper jurisdiction over the matter and that a federal order governing the same subject matter must be honored under the full faith and credit clause of the United States Constitution. (August 2, 2017)

In GMAC Mortgage, LLC v. TamiLynn Willoughby, the Supreme Court of New Jersey considered whether a loan modification agreement, entered into via New Jersey’s Residential Mortgage Foreclosure Mediation Program, was a permanent or provisional agreement. The court determined that although the mortgagor began making increased monthly payments pursuant to new loan modification agreements with different terms and was compelled to proceed with mediation sessions in an effort to save her home, the mortgagor never voluntarily abandoned the original loan modification agreement as she did not sign the documents necessary to execute a contract superseding it. Because the mortgagor had satisfied all contingent terms of the original loan modification agreement, the court held that the agreement was a permanent and binding loan modification. (July 31, 2017)

In Appeal of Chester County Outdoor, LLC, the Commonwealth Court of Pennsylvania held that the Pennsylvania Municipal Planning Code required that trial courts conduct a de novo review of the evidence and need not give deference to a zoning hearing board’s findings. The court further held that a successful challenger to the validity of a zoning ordinance request must be granted site-specific relief unless the municipality can establish the materiality of pre-existing and generally applicable zoning provisions and that the proposed development is incompatible with such provisions. Finally, the court held that, if a trial court refuses to grant the successful challenger of a zoning ordinance the site-specific relief requested, it must then consider whether alternative relief can and should be made available. (July 28, 2017)

In FP Willow Ridge Associates, L.P. v. Allen Township and Northampton Borough, the Commonwealth Court of Pennsylvania considered the timeliness of a property owner’s claim for a refund of fees paid to the township in exchange for water and sewer service under the “Refund Act,” 77 P.S. § 5566b(a). The court held that the Act’s requirement that a party seeking a refund of taxes or fees request a refund within three years of the alleged overpayment, prior to initiating suit, was a statute of notification and not a statute of limitation. Accordingly, because the property owner had sent the township a letter complaining of the overpayment within the three-year period, the court held that the owner’s claim was not time-barred. (July 6, 2017)

In Board of Commissioners of Cheltenham Township v. Hansen-Lloyd, L.P., the Commonwealth Court of Pennsylvania held that once a developer files a mandatory sketch plan regarding a proposed development, the developer acquires a vested right to have the plan, as well as any future zoning application related thereto, considered under the zoning ordinance in effect at the time the sketch plan was filed. (July 6, 2017)

In 1107 Putnam, LLC v. Beulah Church of God in Christ Jesus of the Apostolic Faith, Inc., the New York Supreme Court, Appellate Division, 2d Department, considered the viability of an action for specific performance of a contract of sale of real property, where the vendor canceled the contract because it was “unable or unwilling” to deliver a marketable title due to encumbrances on the property. The court held that, if a purchaser has “substantially performed its contractual obligations and was ready, willing, and able to perform its remaining obligations, . . . the vendor was able to convey the property, and . . . there was no adequate remedy at law,” the purchaser is entitled to specific performance. (July 5, 2017)

In In Re Condemnation by Sunoco Pipeline L.P., the Commonwealth Court of Pennsylvania addressed the constitutionality of a petroleum and petrochemical manufacturer’s taking of a property owner’s land to facilitate construction of an oil and gas pipeline. The court held that the petroleum and petrochemical manufacturer was a public utility corporation with the power of eminent domain and that the pipeline provided intra- and interstate pipeline services. (July 3, 2017)

In Smith v. Ivy Lee Real Estate, LLC, the Commonwealth Court of Pennsylvania addressed whether the Pennsylvania Municipalities Planning Code (MPC) permits a private cause of action to enforce a Subdivision and Land Development Ordinance (SALDO). Because the plain language of the MPC allows for a private cause of action where there is a violation of “any ordinance enacted under [the MPC],” and because the SALDO was enacted under the MPC, the court determined that a private cause of action to enforce a SALDO exists. (June 27, 2017)

In Zalman v. City of Chester, the Commonwealth Court of Pennsylvania addressed whether a street opened for public use prior to the passage of the Act of 1889 is subject to the Act’s 21-year statute of limitations on a quiet title action. Because the Act has no retroactive effect, the statute of limitations is not applicable to a street dedicated, opened, and used by the public prior to the Act’s passage. (June 27, 2017)

In Dowds v. Zoning Board of Adjustment, the Commonwealth Court of Pennsylvania addressed when the pending ordinance doctrine applies to a zoning application for a special exception. Under the pending ordinance doctrine, a proposed zoning ordinance that has sufficiently advanced in the legislative process to be a “pending ordinance” applies to building permit applications filed before the ordinance was fully enacted. However, where an application is filed prior to the date the ordinance is deemed pending, and where revisions to the application made subsequent to that date are for clarification purposes only, the pending ordinance doctrine does not apply. (June 27, 2017)

In Murr v. Wisconsin, the United States Supreme Court considered a Fifth Amendment Takings Clause challenge brought by a family that sought to sell one of two contiguous parcels of land, but found that state regulations pertaining to land use rendered the sale of one lot worthless without the sale of the other. The Court applied a balancing test and determined that the value of the two contiguous lots must be considered together and determined that, when under common ownership, both lots retained their value even though individually they were largely worthless. Accordingly, no impermissible taking occurred. (June 23, 2017)

In State of New Jersey, Department of Environmental Protection v. North Beach 1003, LLC, et al., the Superior Court of New Jersey, Appellate Division, held that the NJDEP has the authority under the public trust doctrine to condemn private property and take a perpetual easement for shore protection purposes and that any such easements may include public access/use (i.e. a public beach). (June 22, 2017)

In Saul v. Vidokle, the New York Supreme Court, Appellate Division, 2d Department, assessed whether email exchanges between a buyer and a seller were sufficient to constitute a valid agreement for the sale of real property. The court found that the emails were insufficient to satisfy the statute of frauds, as they left for future negotiations essential terms of the contemplated contract, such as a down payment, the closing date, the quality of title to be conveyed, the risk of loss during the sale period, and adjustments for taxes and utilities. (June 7, 2017)

In Woodlands Community Association, Inc. v. Mitchell, the Superior Court of New Jersey, Appellate Division, considered whether a lender’s assignee that takes possession of a condominium unit when the owner/mortgagor has defaulted on the loan, and thereafter winterizes the unit and changes the locks, is considered a “mortgagee in possession” of that unit, responsible for the payment of condominium fees and assessments. The court held that the discrete actions taken by the lender’s assignee are not sufficient to render the lender’s assignee a mortgagee in possession. (June 6, 2017)

In In Re Condemnation of the Property of Carl and Rosemary Lefever, the Commonwealth Court of Pennsylvania held that the plaintiff owners in a proceeding for appointment of viewers failed to sufficiently allege a taking of their property by the defendant township. The plaintiffs had no facts to support their claim that the township’s planned pipeline easement deprived them of the beneficial use of their property. (May 31, 2017)

In DiSanto v. Board of Commissioners of Susquehanna Township, the Commonwealth Court of Pennsylvania held that the doctrine of equitable estoppel did not apply to bind a local planning board to approve an application for site plan approval. The plaintiff applicant knew or should have known that prior statements made by the township engineer and the planning commission regarding his application being in compliance with various ordinances were not made on behalf of the board. (May 31, 2017)

In EQT v. Borough of Jefferson Hills, the Commonwealth Court of Pennsylvania addressed whether the trial court erred in reversing the borough council’s decision to deny the conditional use application of EQT to construct, operate, and maintain a natural gas production facility. The court affirmed the trial court holding that the council erred in concluding that the burden never shifted to the borough to establish with probative evidence that there was a high degree of probability that the conditional use would constitute a detriment to the public health, safety, and welfare exceeding that ordinarily expected from the proposed use. (May 18, 2017)

In Bayview Loan Servicing LLC v. Wicker, the Superior Court of Pennsylvania addressed whether defendants admitted in their pleadings that their mortgage was in default, whether a surviving corporation had standing as the mortgagee when it merged with the original mortgage company, the requirements of a statement of material facts under Rule 2352(a), and whether a witness needs personal knowledge to apply the business record exception to hearsay. The court held that defendants admitted the mortgage was in default by responding with general denials when specific denials were required, that the surviving corporation of a merger may enforce the note if the predecessor could have enforced the note at the time of the merger, that documents appended to the praecipe were a sufficient statement, and that a witness qualifying business records does not need personal knowledge of the facts reported in the record. (May 17, 2017)

In Temp Realty Corporation v. He, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a bank violated the Uniform Commercial Code (UCC) by depositing a down payment check, payable to sellers’ counsel “as Attorney,” into counsel’s checking account, which was not an attorney’s account or other fiduciary account. The court found no violation of the UCC. Nothing requires a bank to deposit a check payable to a fiduciary into a fiduciary account, and the fact that the bank did not deposit the check into a fiduciary account, without more, does not establish wrongful payment on the part of the depositary bank. (May 17, 2017)

In In re Trust of Mihordin, the Superior Court of Pennsylvania addressed the merger doctrine in the context of a requested reformation of a deed. The court recognized that the merger doctrine, in which an antecedent contract for purchase of land is merged with the deed, can be overcome by proof of a scrivener’s mistake. However, because there was legally insufficient evidence of a scrivener’s mistake where the original sale agreement was ambiguous and the deed at issue did not include an explicit reference to a reversionary interest, the court denied the requested reformation. (May 16, 2017)

In Trustees of Conneaut Lake Park v. Erie Insurance Exchange, the United States Court of Appeals for the Third Circuit examined whether proceeds from an insurance company payout on a fire loss may go to the operator of the property that insures it, instead of the owner of the property. The court found that the operator could collect the insurance because the statute only refers to the rights of the “named insured” rather than “insured property owners.” The court also considered whether compelling payment of the owner’s delinquent taxes from the insurance payout to the operator would be unconstitutional under the Fifth Amendment Takings Clause. The court held that the operator did not have a legally cognizable property interest in the entirety of the insurance proceeds because Pennsylvania law conditioned receipt of the proceeds on satisfying delinquent taxes owed on the insured property. (May 2, 2017)

In Verzatt v. Halstead Property, LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a real estate brokers’ inquiry regarding the “longevity” and “solidity” of the buyers’ relationship constituted discrimination on the basis of sexual orientation. The court held that the inquiry was not discriminatory because it did not express any “limitation, specification or discrimination” on the basis of the couples’ sexual orientation, as opposed to financial concerns similar to any couple seeking to buy an apartment in the building. The court also noted that the couple was not “aggrieved by an unlawful discriminatory practice” under the State and City Human Rights Law because they would not have been denied the apartment on the basis of their marital status had they disclosed their status to the cooperative board. (April 27, 2017)

In Front Street Development Associates, L.P. v. Conestoga Bank, the Superior Court of Pennsylvania addressed whether a release signed in connection with a mortgage loan modification precluded the plaintiff’s later-arising fraud-based claims. The court held that the release contained language clearly indicating an intent to bar claims even remotely arising out of the loan documents and specifically released claims arising after its execution. (April 26, 2017)

In U.S. Bank National Association v. Watters, the Superior Court of Pennsylvania addressed whether a wife not named on her spouse’s mortgage was a “real owner” due to her pending divorce and equitable interest in the property and, therefore, was a party required to be named in a mortgage foreclosure action. The court limited the definition of “real owner” to those who have liability on the mortgage and held that it did not encompass a spouse having a marital interest under the Divorce Code. (April 19, 2017)

In Moltisanti v. East River Housing Corporation, the New York Supreme Court, Appellate Division, 1st Department, addressed whether the owner of an apartment in a cooperative building who was seeking to build onto an attached balcony was entitled to a preliminary injunction against the building’s operator to prevent the operator from interfering with the construction. The court denied the preliminary injunction, holding that “such an order is improper because it would upset, rather than maintain, the status quo and would effectively grant the ultimate relief sought.” (April 18, 2017)

In J.M. Shrewsbury v. The Bank of New York Mellon, the Supreme Court of Delaware addressed whether a party holding a mortgage must have the right to enforce the obligation secured by the mortgage in order to conduct a foreclosure proceeding. The court held that a mortgage assignee must be entitled to enforce the underlying obligation which the mortgage secures in order to foreclose on the mortgage. (April 17, 2017)

In 555 West John Street, LLC v. Westbury Jeep Chrysler Dodge, Inc., the New York Supreme Court, Appellate Division, 2d Department, considered whether a “liquidated damages” provision in a land lease contract was an enforceable liquidated damages clause or an unenforceable penalty. The damages section of the agreement provided the landowner “with a remedy for the whole extent of any injury that would be sustained as a result of a holdover, ‘in addition to’ the sum of $5,000 per day in liquidated damages.” The court held that “[a]n enforceable liquidated damages clause is ‘an estimate . . . of the extent of the injury that would be sustained as a result of breach of the agreement,’ thereby embodying ‘the principle of just compensation for loss.’” In this case, the court held that the purported liquidate damages clause was not an estimate, and was, therefore, unenforceable. (April 12, 2017)

In Szabo v. Commonwealth of Pennsylvania, Department of Transportation, the Commonwealth Court of Pennsylvania addressed whether a Declaration of Taking understating the condemned property deprived the property owners of adequate notice of the taking. The Pennsylvania Code requires condemnors to give written notice containing a reasonable identification of the property to the condemnee. The court explained how crucial it is that plans attached to a declaration of taking be specific in describing property that is condemned. The court found here, where the parcels in question were marked on the plans as belonging to other parties, thus understating the condemned property, the property owners were deprived adequate notice of the extent and effect of the taking. (April 12, 2017)

In Citibank, N.A. v. Keenan Powers & Andrews PC, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a finding of fault is required before awarding damages to a party whose property was wrongfully attached. The court held that “[a] finding of fault is not required . . . as plaintiffs are ‘strictly liable’ for the damages they caused.” The court also held that, under the circumstances, the full amount of defense costs incurred by the party whose property was wrongfully attached in the underlying litigation was recoverable as damages. (April 11, 2017)

In Michael v. Stock, the Superior Court of Pennsylvania addressed whether a Seller of a parcel could pursue an action against her title insurer when the policy appeared to be ambiguous and mistakenly led Seller to believe she owned an additional parcel. Based on this belief Seller entered into a sales contract with Buyer to sell the additional parcel, and once it was determined Seller could not render clean title, Buyer sued Seller for breach, who in turn sued title insurer. The court held that whether there was sufficient ambiguity in the contract was a question of fact to be decided by the jury. Further, the court held that the title insurer may have breached its duty to defend, which is distinct and broader than its duty to indemnify. (April 11, 2017)

In Conley v. Guerrero, the Supreme Court of New Jersey addressed whether the attorney-review provision of a standard form real estate contract, permitting the parties’ respective attorneys three days to review the contract before it became legally binding, must be strictly construed such that any notice of disapproval seeking to void the real estate contract must be transmitted by certified mail, telegram or personal service to the parties’ real estate agent or broker. The court held that, notwithstanding the language of the applicable statute, an attorney’s notice of disapproval may be transmitted by fax, email, personal delivery or overnight mail with proof of delivery. (April 3, 2017)

In Revock v. Cowpet Bay West Condominium Association, the United States Court of Appeals for the Third Circuit addressed whether a Fair Housing Act claim survives the death of a party. The court held that survival of claims under the Fair Housing Act is not governed by Section 1988(a), but rather by federal common law, under which a Fair Housing Act claim survives the death of a party. (March 31, 2017)

In Galvin v. U.S. Bank, NA, the United States Court of Appeals for the First Circuit determined whether the bank waived its rights to a deficiency judgment in a foreclosure case by failing to comply strictly with M.G.L. c. 244 § 17B. The statute requires that a foreclosing mortgagee satisfy both a notice requirement and an affidavit requirement prior to seeking a deficiency against a mortgagor. Because the bank failed to sign an affidavit within the statutory time period, its claim for a deficiency failed. (March 29, 2017)

In Nicholas and Strothers, P.C. v. Hoffman, the Superior Court of Pennsylvania held that a mortgage was enforceable without consideration because it contained language indicating that the signer intended to be legally bound. Moreover, the Superior Court refused to consider parol evidence to determine whether a subjective meeting of the minds had occurred because the objective terms of the written contract evidenced a meeting of the minds on all material terms. (March 24, 2017)

In Shrine of Our Lady of La Salette Inc. v. Board of Assessors of Attleboro, the Supreme Judicial Court of Massachusetts found that a church’s welcome center and maintenance building were exempt from property taxes under G.L. c. 59, § 5 because they were part of a “house of religious worship,” but a former convent that the Church leased to a non-profit nature conservation organization was not exempt, although it may have qualified for a separate exemption as property of a charitable organization devoted to a charitable use, had the proper filing requirements been satisfied. (March 22, 2017)

In Patriot Power, LLC v. New Rounder, LLC, the Appeals Court of Massachusetts addressed the burden of proof at trial in a breach of contract and declaratory judgment action regarding the exercise of a termination option in a lease. The commercial lease at issue contained a provision that it would automatically renew each year unless either party timely notified the other that it intended to exercise the termination option. Concluding that the tenant had the burden of proof, the court reasoned that the party that relies on a condition to avoid a contractual obligation has the burden to prove the occurrence of such condition. (March 13, 2017)

In Ginnine Fried v. JP Morgan Chase & Company, the United States Court of Appeals for the Third Circuit considered whether the Homeowners Protection Act permits a lender to recalculate the amount of a homeowner’s mortgage insurance obligation following a loan modification. The court held that the parties must agree to update the terms and conditions of the loan. In this case, the lender could not substitute the decreased value of the home at the time of the modification to recalculate the duration of mortgage insurance payments owed, thereby requiring an additional ten years of said payments without the knowledge or consent of the homeowner. (March 9, 2017)

In Natixis Real Estate Capital Trust 2007-HE2 v. Natixis Real Estate Holdings, LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed a number of issues that regularly recur in residential mortgage back securities (RMBS) putback actions, including whether or not Natixis Real Estate Capital Trust failed to comply with a condition precedent to commencement of the action and adequately pleaded a cause of action for breach of representations and warranties, and whether a RMBS trustee Securities Administrator has standing to commence an action. The court found the allegations sufficient to plead that Natixis Real Estate Holdings' repurchase and backstop repurchase obligations were triggered by the defendant’s discovery of its own breaches of the representations and warranties with regard to the mortgage loans, and that the Securities Administrator had standing. (March 9, 2017)

In AM Properties, LLC v. J&W Summit Ave, LLC, the Appeals Court of Massachusetts addressed whether a company can include a period of non-permissive use of a piece of land by a tenant of a prior owner to meet the 20-year requirement for a claim of adverse possession. The court held that the company was allowed to tack on the previous period of tenancy in order to establish adverse possession. (March 8, 2017)

In In Re Appeal of Aram K. Jerrehian, the Commonwealth Court of Pennsylvania addressed whether an owner’s parcel of land that had been subdivided from a 40-acre tract in 1958 by the Orphans’ Court was a valid lot within the Zoning Code. The neighbors argued that it was not a valid subdivision under the Pennsylvania Municipalities Planning Code. The court held that the lot was valid because the partition occurred before the code was enacted. (March 6, 2017)

In Weible v. Wells, the Superior Court of Pennsylvania addressed whether the statutory period required to adversely possess land was tolled or started anew when property became owned and used by local governments for a period of time during the 21-year statutory timeframe. The court held that the statutory period was tolled and not completely reset because local governments have immunity from a claim of adverse possession when the land in question is devoted to public use. (February 27, 2017)

In Koines v. Zoning Board of Appeals of Cohasset, the Appeals Court of Massachusetts addressed whether the zoning board of appeals correctly interpreted its own by-law to afford grandfather protection to a lot. The court held that a reviewing court must grant substantial deference to a local zoning board’s interpretation of its own by-law “by reason of a local zoning board’s home grown knowledge about the history and purpose of its town’s zoning by-law” (internal quotes omitted). (February 21, 2017)

In In Re Foremost Industries v. GLD Foremost Holdings, LLC, the Commonwealth Court of Pennsylvania held that a lis pendens placed on the defendant company’s properties by the plaintiff as a result of a pending breach of contract action could not be maintained. The court found that title to the properties was not at issue in the lawsuit because the plaintiff sought only monetary damages and, therefore, the lis pendens was improper. (February 16, 2017)

In Matter of Bramwell v. New York State Division of Housing and Community Renewal, the New York Supreme Court, Appellate Division, 1st Department, found that a tenant in a rent stabilized building was not entitled to rent stabilization after the expiration of J-51 tax benefits. The court found that all apartments in a building receiving the J-51 tax benefit are exempt from deregulation while the building is subject to the benefit, but may become deregulated upon termination of the benefit. (February 16, 2017)

In Dunbar Homes, Inc. v. Zoning Board of Adjustment of the Township of Franklin, the Superior Court of New Jersey, Appellate Division, addressed whether a submission by a landowner to the planning board was an “application for development” that triggered the time of application rule. In deciding this question of first impression, the court held that the submission did not fully comply with the requirements of the Municipal Land Use Law and, thus, the time of application rule did not apply. (February 14, 2017)

In Barrasso v. New Century Mortgage Corporation, the Supreme Judicial Court of Massachusetts held that a property owner could not challenge the assignment of a mortgage note because he had entered into a modification agreement in which he waived all forms of challenge to that mortgage. The court further held that while an issue of fact existed as to whether a second mortgage on the property was properly assigned during the mortgagee’s bankruptcy, the mortgage itself was valid and should not be stricken from the record. (February 8, 2017)

In Gurecka v. Carroll, the Superior Court of Pennsylvania held that an adjacent landowner had acquired an easement by implication for continued use, and access to, a sewer line that ran underneath her neighbors’ property. In so holding, the Court found that (1) the sewer line had been installed for the benefit of the landowner’s property at a time when both properties were under common ownership; (2) the use of the sewer line had been continuous for at least 50 years; and (3) the manholes located on the neighbors’ property were sufficient to place the neighbors on notice of the network of sewer lines coming onto and crossing their property. (February 3, 2017)

In Condor Funding, LLC v. 176 Broadway Owners Corporation, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a written agreement, recorded in the Office of the City Register of the City of New York, between the owner of a building (“Building 1”) and the prior owner of an adjacent building (“Building 2”) requiring Building 2 to provide steam heat to Building 1, could bind the current owner of Building 2. The court concluded that the agreement constituted a covenant running with the land, and that the new owner of Building 2 breached that covenant by choosing to cease providing steam heat to Building 1. The court denied summary judgment to the owner of Building 1, however, finding that issues of fact existed as to whether a representative of Building 1 had orally waived the benefit flowing from the covenant. (February 2, 2017)

In Turra v. Deutsche Bank Trust Company Americas, the Supreme Judicial Court of Massachusetts considered whether a foreclosing mortgagee's failure to send post-foreclosure notices, required by Mass. Gen. Laws c. 244, § 15A, renders a foreclosure void. Holding that it does not, the court explained that its prior decisions concerning c. 244, §§ 11-17C (which encompasses the statute at issue) were not intended to result in a foreclosure becoming void from a mortgagee’s failure to strictly comply with the requirements of these statutes. Further, the court reasoned that the mortgagee’s non-compliance with § 15A does not create potential harm to the mortgagor. (January 30, 2017)

In Eastern Consolidated Properties, Inc. v. 5 East 59 Realty Holding Company, LLC, the New York Supreme Court, Appellate Division, 1st Department, considered the language of a written commission agreement. The agreement provided that the seller shall pay the referrer a percentage fee of the purchase price if the referrer introduced the seller to the party that would ultimately purchase the property. The court held that agreement only required a successful referral and did not require that the referrer to be a “procuring cause” or “direct and proximate link” for the sale. (January 19, 2017)

In Jeremias v. Allen, the New York Supreme Court, Appellate Division, 1st Department, addressed the issue of attorney malpractice in regard to a real estate transaction whereby the property buyers took an assignment of a purchase and sale agreement involving a commercial building. The property buyers alleged that the attorneys failed to conduct due diligence on the transaction and failed to procure renewal leases. The court ultimately held that the sole cause of damages resulted from the property buyers’ informed choice to take the calculated risk of closing on the assignment transaction prior to procuring a renewal lease from the primary tenant. (January 19, 2017)

In Deutsche Bank National Trust Company v. Logan, the New York Supreme Court, Appellate Division, 2d Department, evaluated the defaulting homeowner’s assertion that the bank lacked standing to maintain a foreclosure action. The court noted that a plaintiff has standing in a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced. Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation. The mortgage then passes with the debt as an inseparable incident. Here, the court found that the bank established standing by demonstrating physical possession of the note evidenced by its attachment of the note to the summons and complaint. (January 18, 2017)

In Congregation Ateres Yisroel v. Town of Ramapo, the New York Supreme Court, Appellate Division, 2d Department, addressed the bounds of the real property tax exemption for a religious not-for-profit corporation. The town properly denied the exemption when the property owner illegally erected trailers on the property without the proper permits and used the primary structure as a dormitory for over 20 students in contravention of its certificate of occupancy. (January 18, 2017)

In Logans’ Reserve Homeowners’ Association v. McCabe, the Commonwealth Court of Pennsylvania addressed whether homeowners, dissatisfied with their homeowners’ association’s performance of its duties, were entitled to engage in the self-help remedy of withholding payment of their assessments. The court held that the homeowners were obligated to pay the assessments regardless of the association’s inadequacies in performance. (January 4, 2017)

In Furlong v. Zoning Board of Appeals of Salem, the Appeals Court of Massachusetts addressed whether strict enforcement of a zoning ordinance related to a boat repair facility would cause an unnecessary safety hazard sufficient to warrant a variance. The court held that strict compliance with the zoning ordinance would create a significant risk of harm for people and property and thus a variance was allowed. (December 12, 2016)

In Phillips v. Equity Residential Management, LLC, the United States Court of Appeals for the First Circuit certified a question to the Supreme Judicial Court of Massachusetts of whether a violation of Section 15B(4)(iii) of the Massachusetts Security Deposit Law, relating to a landlord’s failure to provide the resident with an itemized list of damages, ultimately leads to the trigger of the statute’s treble damages provision under Section 15B(7). (December 12, 2016)

In Monroe Equities, LLC v. State of New York, the New York Supreme Court, Appellate Division, 2d Department,addressed whether watershed regulations that prohibit the placement of a subsurface sewage disposal system within a certain distance of a lake constitutes an unconstitutional taking since the prohibition prevents the building of single family dwellings that the property is otherwise appropriately zoned for. The court held that the claimant failed to establish that the subject property had suffered a complete elimination of value as a result of the watershed regulations. Furthermore, the court held that the claimant never possessed the right to install a septic system on its property as part of the bundle of rights upon assuming title, so no “taking” was possible. (December 7, 2016)

In Eagleview Corporate Center Association v. Citadel Federal Credit Union, the Commonwealth Court of Pennsylvania considered whether a party was required to install a screen around air conditioning on its roof in accordance with a declaration of easements and protective covenants in place. The court held that the opposing party should have initiated an injunction against the other to enforce covenants in the declaration, rather than petitioning to compel the other to install a screen, when the lower court did not order any action. Thus, the petition was prematurely filed. (December 2, 2016)

In DeGiacomo v. City of Quincy, the Supreme Judicial Court of Massachusetts held that res judicata precluded a successor trustee’s breach of fiduciary duty claim because a previous decision authorizing a below-market lease of the trust's assets bound both the successor trustee and the trust's beneficiary. The Court found that res judicata applied because the Attorney General adequately represented the interests of the successor trustee and beneficiary in the original action. (November 15, 2016)

In Dyer v. Wells Fargo Bank, the United States Court of Appeals for the First Circuit found a homeowner’s suit arising out of a foreclosure sale on her property should be dismissed. The homeowner sought declaratory judgement and damages for slander of title against her lender and loan servicing company. She argued that her lender did not have standing to foreclose on the property because Mortgage Electronic Registry Systems, Inc. (MERS) had mistakenly recorded the same mortgage assignment to her lender twice, once in 2008, and again in 2011. The court found that because the original assignment was valid, the erroneous assignment did not destroy her lender’s standing to foreclose. (November 14, 2016)

In Beach Point Partners v. Beachcomber, Ltd., the New York Supreme Court, Appellate Division, 2d Department, addressed whether the board of directors of a cooperative apartment building breached their fiduciary duty and obligation owed to shareholder-tenants of the cooperative by prohibiting them from parking on the grass behind the building where their cooperative apartment unit was located. In holding that the board of directors did not breach their fiduciary duty to the shareholder-tenants, the Court explained that in the context of cooperative dwellings, the business judgment rule provides that a Court should defer to a cooperative board’s determination so long as the board acts for the purposes of the cooperative, within the scope of its authority and in good faith. Here, the Court held that the board of directors demonstrated that they were acting in the best interests of the cooperative after making a number of capital improvements that added to the aesthetics and value of the property. (November 9, 2016)

In Brown v. Kalicki, the Appeals Court of Massachusetts addressed the status of registration for accreted land along beachfront property. The court held the accreted beachfront automatically became registered land as it formed because this supports the principal purpose of the registration system: “to make titles certain and indefeasible.” Accordingly, the court found that no amendments to the prior registrations were necessary. (October 20, 2016)

In Birdie Associates v. CNX Gas Company, the Superior Court of Pennsylvania reaffirmed the “Pennsylvania Doctrine” with respect to a lease conveying the right to mine coal on the lessor’s property. Under this doctrine, a coal lease constitutes a sale of the coal including all “constituent products.” The court, therefore, held that, although the lease only expressly referenced coal, the lessee also owned the coal bed methane gas for the period of the lease and was permitted to mine it. (October 20, 2016)

In New Jersey Transit Corporation v. Franco, the Superior Court of New Jersey, Appellate Division, addressed just compensation for a government agency’s condemnation of parcels of privately-owned land. The court rejected the owners’ proposed “highest and best use” in the form of apartment buildings with a driveway, finding no reasonable probability that the municipality would have granted a use variance for a private driveway or accepted part of the property as a public street. (October 19, 2016)

In Saturday Family LP v. Commonwealth of Pennsylvania, the Commonwealth Court of Pennsylvania addressed whether a lease for less than 30 years but with options for renewal at the “fair market value” which, if exercised, would extend the lease beyond 30 years would require the taxpayers to pay the realty transfer tax. The court held that, under 61 Pa. Code 91.193(b)(24)(v), renewal periods based on “fair market value” are not included in the total lease term. The court held that the lease was for 29 years and 11 months, with several “fair market value extensions,” and therefore the realty transfer tax did not apply. (October 17, 2016)

In Larenas v. Incorporated Village of Garden City, the New York Supreme Court, Appellate Division, 2d Department, found that a municipality that lacked prior written notice of an icy sidewalk could be liable for an individual’s injuries suffered after falling on ice when the municipality did not establish that it did not create the icy condition through an affirmative act of negligence. The Court found that although the municipality did not fail to remove all snow or ice from the sidewalk, its act in piling snow as part of its snow removal efforts could have led to the dangerous icy condition that led to the individual’s injuries. (October 12, 2016)

In Titte v. Butler, the New York Supreme Court, Appellate Division, 2d Department, found that seller of a property could not be bound by a contract signed by her brother with the purchaser where there was no writing authorizing the seller’s brother to execute the contract on her behalf. The Court held that General Obligations Law Section 5-703(2) provides that “[a] contract . . . for the sale, of any real property, or an interest therein, is void unless the contract or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged, or by his lawful agent thereunto authorized by writing. (October 12, 2016)

In Taylor v. Martha’s Vineyard Land Bank Commission, the Supreme Judicial Court of Massachusetts considered whether a bright-line rule that an easement could not be used to benefit land to which the easement is not appurtenant is overly rigid. The Court found that benefits of preserving the longstanding bright-line rule outweighed any costs associated with its rigidity, and therefore declined to adopt a fact-intensive inquiry regarding whether the use of a particular easement to benefit other parcels would unfairly increase the burden on the easement. (October 11, 2016)

In Bon Ayre Land, LLC v. Bon Ayre Community Association, the Supreme Court of Delaware addressed the standard that a landowner must meet to increase rent above inflation. The court held that, pursuant to Delaware’s Rent Justification Act, a landowner must 1) possess a clean bill of health in terms of safety violations; 2) show that the rent increase is directly related to operating, maintaining, or improving the manufactured home community; and 3) justify the increase by one or more of eight enumerated factors, including capital improvements, property tax increases, or market rent. The court further held that, for purposes of establishing the market rent factor, a landowner need not necessarily produce evidence of actual rents charged in other rental communities. (October 10, 2016)

In Northwest Savings Bank v. Knapp, the Superior Court of Pennsylvania determined whether adding realty transfer taxes to a winning bid at a sheriff’s sale violated two statutes, 72 P.S. 8104-C and 72 PS 8107-D. The court determined that the taxes shall be paid from the winning bid, not added to the winning bid, because the statutes provide that the tax shall be paid out of the proceeds of the sale. (September 28, 2016)

In Benitez v. United Homes of New York, LLC, the New York Supreme Court, Appellate Division, 1st Department, addressed whether the bank’s law firm departed from the standard of care in connection with the closing of a residential real estate mortgage loan to the mortgage-lender client by failing to advise that the subject property lacked a certificate of occupancy, failing to advise of the risk of funding the loan under these circumstances, and failing to confirm that the mortgage-lender client contributed 3% of her own funds toward closing, a condition of the loan. In upholding the legal malpractice claim, the court held that the bank’s legal expert, who submitted an affidavit concerning the duty of care an attorney owes to a mortgage-lender client, was qualified to submit the affidavit despite the closer’s lack of knowledge concerning the underwriting process. (September 27, 2016)

In JNM Hospitality, Inc. v. McDaid, the Appeals Court of Massachusetts considered whether the trustees of a condominium intentionally interfered with a commercial tenant’s lease with its landlord, the owner of a condominium unit, by contractually providing a neighbor with the ability to park in 15 spaces in the condominium parking lot. The tenant’s lease provided it with the exclusive use of 11 parking spaces in the condominium parking lot and the right to park in the other 66 parking spots on a first come, first serve basis. Concluding that no induced breach of the lease contract or interference with the landlord’s obligations occurred as required to sustain an intentional interference with contractual relations claim, the court reasoned that the lease contained no guarantee that nonexclusive spaces would be available. Thus, the contract with the neighbor did not prevent the landlord from performing its contractual obligations, nor did the landlord breach the lease. (September 27, 2016)

In DiMattio v. Millcreek Township, the Commonwealth Court of Pennsylvania addressed whether the down-zoning of a 24-acre parcel of land constituted spot zoning. The court determined the objectors had failed to satisfy their burden of proof regarding the similarity of the property in question to the immediate surrounding area. As such, the court did not address the objectors’ question of whether re-zoning was justified on health, safety, morals, and public welfare grounds. (September 21, 2016)

In Goldhirsch v. St. George Tower & Grill Owners Corporation, the New York Supreme Court, Appellate Division, 2d Department, addressed whether the warranty of habitability can apply to an apartment’s terrace. The apartment owner established that water damage and closures to the terrace rendered it unfit for the uses reasonably intended by the parties. Therefore, the court held that the apartment owner was entitled to recover damages under his warranty of habitability cause of action for all periods of time that the terrace was closed. (September 21, 2016)

In McLafferty v. Council for the Association of Owners of Condominium No. One, Inc., the Superior Court of Pennsylvania addressed whether a condominium association lawfully amended its Original Declaration of Condominium by a simple majority vote. The court held that the association’s original declaration was silent as to the percentage of vote required to amend the declaration. The court, therefore, held that the Uniform Condominium Act, which requires a 67% approval,applies for the amendment to the Original Declaration of Condominium. (September 12, 2016)

In Suarez v. Axelrod Fingerhurt & Dennis, the New York State Supreme Court, Appellate Division, First Department, addressed tenants’ rights to assert causes of action for breach of the covenant of quiet enjoyment, conversion, and trespass to chattels after a wrongful eviction. Occupants of an apartment were wrongfully evicted from an apartment. However, the court dismissed the causes of action asserted by them for breach of the covenant of quiet enjoyment, conversion, and trespass to chattels because, in the specific context of a wrongful eviction action, these claims do not constitute cognizable causes of action but merely state demands for damages to be considered as elements of the statutory cause of action for wrongful eviction. (September 8, 2016)

In Nichols v. City of Rehoboth Beach, the United States Court of Appeals for the Third Circuit addressed whether a resident, property owner, and taxpayer in the City of Rehoboth Beach had municipal taxpayer standing to challenge an election which resulted in the issuance of up to $52.5 million in general obligation bonds to finance an ocean outfall project. The court found that the resident failed to show an illegal use of municipal taxpayer funds, and therefore, was unable to establish standing based on municipal taxpayer grounds. (September 7, 2016)

In Weinberg v. Sultan, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a complaint alleging that a purchaser and her attorney exerted undue influence over the seller in a real estate transaction adequately alleged fraud and legal malpractice. The court held that the complaint failed to allege any material misrepresentation, a required element of fraud, and that the seller did not allege how the purchaser and her company exerted any undue influence over her or coerced her into a transaction that she alleged made no economic sense. The court also held that the purchaser’s attorney made a prima facie showing of a lack of proximate cause, an essential element of legal malpractice. (September 1, 2016)

In U.S. Bank National Association v. Bolling, the Appeals Court of Massachusetts addressed whether a non-party to a pooling and servicing agreement had standing to challenge the assignment of a mortgage that was not made in accordance with the terms. The court concluded that although the non-party had standing to challenge deficiencies that rendered the assignment void pursuant to Mass. Gen. Laws. c. 183, §54B, she did not have standing to challenge a defect that rendered the assignment merely voidable. (September 1, 2016)

In Nelson v. Conservation Commission of Wayland, the Appeals Court of Massachusetts addressed whether the conservation commission of Wayland had provided substantial evidence to support its determination that wetlands were on the individual’s property under Wayland’s strict town by-laws. Holding that substantial evidence supported the commission’s decision, the court explained that the absence of hydric soil on the property did not prevent the area in question from being deemed a wetland under the town’s by-laws, despite the fact that such absence may be relevant in making a similar determination under State and Federal law. (August 31, 2016)

In Long Run Timber Company v. Department of Conservation and Natural Resources, the Commonwealth Court of Pennsylvania addressed the requirements for establishing the existence of a consentable line in a dispute regarding the location of the boundary between two tracts of land. The court held that a consentable line can be established by “dispute and compromise,” which requires (1) a dispute about the location of the common boundary line, (2) the establishment of a line in compromise of the dispute, and (3) the consent of both parties to that line. A consentable line is not a conveyance of land and not subject to the statute of frauds, and therefore can be proven by evidence of an oral agreement. As such, a written or recorded document that identifies the consentable line or transfers real estate is not necessary to establish its existence. (August 30, 2016)

In Zoning Board of Appeals of Hanover v. Housing Appeals Committee, the Appeals Court of Massachusetts addressed whether a developer’s submission to the Zoning Board of Appeals of a permit application without a full filing fee constitutes an application under the Department of Housing and Community Development (DHCD) regulations. The court held that the DHCD regulations require the payment of a full filing fee in order for the Board to consider a comprehensive permit application filed. (August 29, 2016)

In JB Mortgage Co., LLC v. Ring, the Appeals Court of Massachusetts addressed whether a complaint to enforce a guaranty of a promissory note, secured by a mortgage on real property, was timely filed. The court held that the complaint was not timely filed, because it was filed more than twenty years after a default existed on the underlying note, and therefore the statute of limitations had lapsed. (August 26, 2016)

In City of Philadelphia v. F.A. Realty Investors, Corp., the Commonwealth Court of Pennsylvania addressed the process and standard for redemption of a property sold at sheriff’s sale. For a party to be entitled to redeem a property, it must show a readiness to pay the necessary redemption costs to the purchaser, which may intervene in redemption proceedings because of its cognizable interest in the property. Because the former property owner did not submit any documentation evidencing a readiness to pay, redemption was unavailable. (August 19, 2016)

In MacLaurin v. City of Holyoke, the Supreme Judicial Court of Massachusetts addressed whether the residential sprinkler provision mandated the installation of sprinklers in a particular residential unit building that had undergone several renovations. The court held that more information was needed to determine whether the properties were “substantially rehabilitated to constitute new construction” within the meaning of the statute, which would necessitate the installation of sprinklers. (August 18, 2016)

In Loughran v. Valley View Developers, Inc.,the Commonwealth Court of Pennsylvania addressed whether it was proper for a township zoning board to conclude that parcels of property had merged into a single lot, thereby denying the Estate dimensional variances to construct a single-family residence on the property. The court held the merger of lots doctrine has no application to a nonconforming lot located in a jurisdiction where the zoning ordinance adopted by the local governing body does not contain a merger of lots provision; thus, the matter was remanded to the zoning board to issue a written decision granting or denying the dimensional variances requested by the Estate. (August 17, 2016) 

In Wells Fargo Bank, N.A. v. Irizarry, the New York Supreme Court, Appellate Division, 2d Department, allowed a lender bank’s foreclosure action to proceed despite the bank’s failure to comply with RPAPL 1301(3). The court found that RPAPL 1301(3) provides that, while a foreclosure action is pending, no other action shall be commenced or maintained to recover any part of the mortgage debt without leave of the court in which the former action was brought. However, where, as was the case here, the only remaining action in the first foreclosure action is the pending discontinuance, no substantial rights of any party will be prejudiced by allowing the second foreclosure action. (August 17, 2016) 

In Murray v. Department of Conservation and Recreation, the Supreme Judicial Court of Massachusetts addressed whether the Massachusetts Land Court had jurisdiction to hear an action to quiet title seeking to establish that an easement for a rail line had been abandoned when, in 1973, the Regional Rail Reorganization Act transferred certain profitable rail lines of eight bankrupt regional carriers to Conrail, but did not select this rail line for transport. The court held that the abandonment of a rail line is in the exclusive jurisdiction of the federal government, and that for a rail line to be abandoned, a certificate of abandonment must be obtained from the appropriate federal agency. (August 4, 2016)

In Jai Sai Ram, LLC v. The Planning/Zoning Board of the Borough of Toms River, the Superior Court of New Jersey, Appellate Division, considered whether under the time of application rule an applicant for a zoning variance is afforded the benefit of an after-application ordinance which makes the requested use permissible. The court held that the rule does not prevent the applicant from taking advantage of the ordinance because the ordinance renders the need for a variance moot. (July 27, 2016)

In Jose v. Wells Fargo Bank, N.A., the Massachusetts Appeals Court considered whether a mortgagee was exempt from a face-to-face meeting with the mortgagor prior to foreclosing on a mortgage insured by the Federal Housing Administration as required by 24 C.F.R. § 203.604(b), where the mortgagee maintained a loan origination office, but not a servicing office, within 200 miles of the mortgaged property. The court concluded that the mortgagee was not exempt from the face-to-face meeting, reasoning that § 203.64(b) was not ambiguous and that deference to an inconsistent response from the Federal Department of Housing and Urban Development regarding an FAQ from its website was unwarranted. (July 22, 2016)

In Weiss v. City of Cambridge, the Appeals Court of Massachusetts considered the breadth of motor vehicle operators covered by Mass. Gen. Laws. c. 89, § 11, which states that “[n]o driver of a vehicle shall pass any other vehicle which has stopped at a marked crosswalk to permit a pedestrian to cross, nor shall any such operator enter a marked crosswalk while a pedestrian is crossing or until there is a sufficient space beyond the crosswalk to accommodate the vehicle he is operating, notwithstanding that a traffic control signal may indicate that vehicles may proceed.” Applying principles of statutory construction, the court ruled that the statute applied to all motor vehicle drivers and, thus, violation of the statute could be considered as some evidence of negligence on the part of the driver. (July 28, 2016)

In The Matter of Private Sale of Property by the Millcreek Township School District,the Commonwealth Court of Pennsylvania addressed whether the school district’s proposed private sale of unused real property to a commercial buyer, despite a higher offer from a private school, was in the public interest and thus satisfied the requirements of Section 707 of the Public School Code. The court held it was an abuse of discretion to disregard the private school’s offer because itwas substantially higher, the private school could close faster, the private school’s proposed use satisfied zoning requirements whereas the proposed commercial use did not, and the private school was offering to make certain parts of the property available for public use, whereas the commercial buyer was not. (July 20, 2016)

In Herder Spring Hunting Club v. Keller, the Supreme Court of Pennsylvania addressed whether a tax sale transferred ownership of the entire property or merely the surface rights of a tract of unseated (undeveloped) land. Following an extensive historical analysis of tax sales of unseated land, the court concluded that the tax sale related to the entire property, including the subsurface rights. (July 19, 2016)

In Beltway Capital, LLC v. Gutierrez, the New York Supreme Court, Appellate Division, 2d Department, addressed when a court may disregard a mistake as to the legal description of foreclosed property in a notice of pendency and judgment of foreclosure and sale. The court held that prejudice can be considered in determining whether a mistake can be disregarded. The court stated that “CPLR 2001 permits a court, at any stage of an action, to disregard a party’s mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced.” (June 22, 2016)

In Eisai, Inc. v. Housing Appeals Committee, the Appeals Court of Massachusetts addressed the standard by which the Housing Appeals Committee evaluated decisions of a town board based on municipal planning concerns, where a town denies a housing proposal under the Comprehensive Permit Act, an act designed to facilitate the development of low and moderate income housing. Here, the court approved a four factor test for evaluating the priority of a town board’s denial of an application based on inconsistency with a town’s master plan, requiring the board to demonstrate the conflict between the application and the board’s interest, the importance of that interest, the quality of the master plan, and the amount of affordable housing resulting from the town’s planning. (June 20, 2016)

In Melrose Fish and Game Club, Inc. v. Tennessee Gas Pipeline Company, LLC, the Appeals Court of Massachusetts addressed whether a fish and game club’s easement over a public way (which until 1999 was shown on the map but not built on the ground (a.k.a. “a paper street”)) had been extinguished prior to the suit being filed. The court held the estoppel of the grantor to deny the existence of the way applies to a contemplated way if clearly indicated, just as to an existing street.  As the abutter’s lot and the clubs’ lots had a common grantor, and the abutter’s deed provided that he took the land subject to existing easements, he was estopped from denying the existence of the easement over the paper way. (June 20, 2016)

In Bank of America, N.A. v. Debora Casey, the Appeals Court of Massachusetts held that an affidavit executed and recorded attesting to the proper acknowledgement of a recorded mortgage containing a Certificate of Acknowledgement that omits the name of the mortgagor, could correct that material defect in the Certificate of Acknowledgement of that mortgage. The court also held that an affidavit executed and recorded, attesting to the proper acknowledgment of a recorded mortgage containing a Certificate of Acknowledgement that omits the name of the mortgagor, could also provide constructive notice of the existence of the mortgage to a bona fide purchaser, either independently or in combination with the mortgage. (June 16, 2016)

In Echeverria v. Holley, the Superior Court of Pennsylvania addressed whether a tenant’s common law duty to make premises safe for a tenant includes an obligation to install working smoke detectors. The court held that the absence of smoke detectors is a dangerous condition which a landlord has a duty to remedy. (June 14, 2016)

In In Re Appeal of AMA/American Marketing Association, Inc. From the Decision of the Borough Council of Ambler Borough, the Commonwealth Court of Pennsylvania addressed whether a borough council improperly granted a conditional use application where the application failed to note an easement on the subject property. The court held that the application was properly granted where the easement was discussed at the conditional use hearing. (June 14, 2016)

In Federal National Mortgage Association v. Rego, the Supreme Judicial Court of Massachusetts addressed whether a foreclosure sale conducted by a bank was void because the bank was not authorized by a prior writing to undertake the actions set forth in G. L. c. 244, §14, and whether, in a summary process action, the Housing Court may consider defenses and counterclaims seeking relief under G. L. c. 93A. The Court held that the foreclosure was not defective, as legal counsel may perform the acts without written authorization, and that the judge could have properly addressed the defense in the summary process action. (May 24, 2016)

In Fair Housing Rights Center v. Post Goldtex GP, LLC, the United States Court of Appeals for the Third Circuit addressed whether the design and accessibility requirements of the Fair Housing Act (FHA) applied to a commercial building that was originally constructed before the requirements’ effective date, but converted into residential units after that date. The court concluded that the FHA’s accessibility requirements do not apply to buildings that are not newly constructed and not first occupied after the effective date of the requirements. (May 17, 2016)

In Wells Fargo Bank, N.A. v. Anderson, the Appeals Court of Massachusetts addressed whether the lower court incorrectly interpreted a Massachusetts statute involving foreclosure by allowing the bank to rely on certain documents without further substantiating their validity, and therefore violated the homeowner’s due process rights. The court held that the homeowner had no standing to contest the documents’ validity and had no right to discovery beyond what was recorded in the county registry pursuant to statute. (May 11, 2016)

In Gold Star Homes, LLC v. Darbouze, the Appeals Court of Massachusetts addressed whether the housing court judge should have allowed a trial to go forward during the pendency in the land court of a related, prior action in which the mortgagor sought a declaration invalidating a foreclosure sale of the property. The court held that the housing court did not err in holding a trial on the action, notwithstanding the prior, pending land court action. (May 11, 2016)

In College Hill Properties, LLC v. City of Worcester, the United States Court of Appeals for the First Circuit addressed whether a property owner’s regulatory taking claim was barred, based on its failure to fulfill the ripeness requirement. The court held that the property owner waived this challenge by not developing an argument to the lower court’s conclusion on appeal. (May 11, 2016)

In Commonwealth v. Cronimet Corporation, the Commonwealth Court of Pennsylvania addressed the available remedy for damage done to a private citizen’s land by a government contractor acting under a temporary construction easement obtained by eminent domain. The court held that incidental, unintentional acts by a third party contractor not clothed in eminent domain power did not constitute a taking which would be compensable under Pennsylvania’s eminent domain law. (May 5, 2016)

In Matter of Bruckner Realty LLC v. Cruz, the New York Supreme Court, Appellate Division, 1st Department, held that the test to determine whether a service is a required ancillary service under a lease is “whether [it] was provided primarily for the use of the tenants, not whether [it] was used primarily by the tenants.” (May 3, 2016)

In Najas Realty v. Seekonk Water District, the United States Court of Appeals for the First Circuit addressed whether a real estate developer and a home building company stated a claim for constitutional due process violations against various town entities that opposed their development plan of a ten-lot subdivision, raising concerns about the development’s impact on the town water supply through increased nitrate levels. The court determined that town officials have the duty to raise objections they deem valid, and the town had not engaged in conscience-shocking governmental behavior or deprived the developer or building company of an established life, liberty or property interest. (May 2, 2016)

In City of Philadelphia v. Auguste, the Commonwealth Court of Pennsylvania addressed whether it was an error for a sheriff’s sale to be set aside based on due process issues raised sua sponte by the trial court. The court reversed the trial court’s order setting aside the sheriff’s sale, holding it was an error for the trial court to set aside the sheriff’s sale based on issues raised sua sponte. Further, all due process requirements concerning notice of the sheriff’s sale under the Municipal Claims and Tax Liens Act were satisfied. The particular facts of this case – indicating there were other addresses that could have been used to provide notice – did not merit a heightened standard for notice above the bare minimum requirements of the statute. (April 29, 2016)

In Armonk Snack Mart, Inc. v. Robert Porpora Realty Corporation, the New York Supreme Court, Appellate Division, 2d Department, addressed whether the defendant was entitled to judgment as a matter of law pursuant to CPLR 4401. Armonk Snack Mart sought specific performance of an option to purchase certain real property, but failed to show that it was the successor in interest to the party that entered into the option agreement. It was irrelevant that defendants did not raise the affirmative defense of standing in their answers, because the evidence to support the fact that the plaintiff was not a successor in interest was elicited from the plaintiff’s own witness at trial. As such, the court properly granted defendants’ motion for judgment as a matter of law. (April 27, 2016)

In Meikle v. Nurse, the Supreme Judicial Court of Massachusetts addressed whether a tenant may raise a violation of the security deposit statute as a defense to a landlord’s claim for possession in a summary process action. The court concluded that a security deposit violation may be asserted as a defense to possession, and is not merely a counterclaim for damages that does not provide defense to possession. (April 27, 2016)

In Banc of America Mortgage Capital Corporation v. Hasan, the New York Supreme Court, Appellate Division, 2d Department, found that a lender did not abandon its mortgage foreclosure action pursuant to CPLR 3215 when it took the preliminary step toward obtaining a judgment of foreclosure and sale by moving for an order of reference, which initiated proceedings for entry of the judgment of foreclosure and sale within one year of the borrower’s default. The court held that the withdrawal of the lender’s motion for an order of reference did not demonstrate that the lender failed to initiate proceedings for entry of a judgment of foreclosure and sale. (April 20, 2016)

In Kitras v. Town of Aquinnah, the Appeals Court of Massachusetts addressed whether easements of necessity were created as a result of a partition of Native American common land that did not include express easements providing rights of access. The court held that there was sufficient evidence to show that the commissioners who partitioned the land intended to include rights of access and therefore no easements by necessity exist. (April 19, 2016)

In Conestoga Bank v. Tioga Investments, the Superior Court of Pennsylvania addressed whether a bank lost its opportunity to establish a judgment deficiency on a property reacquired at a price far lower than the judgment at a sheriff’s auction by failing to file a petition to establish fair market value within six months after delivery of the original deed following the sheriff’s auction. The borrowers filed a verified petition to mark the judgment satisfied, released and discharged and argued that the judgment should be marked satisfied at the lower price, because the bank failed to file the petition to establish fair market value within six months of delivery of the original deed. The court denied the petition to mark the judgment satisfied, released and discharged because the bank filed the petition to establish fair market value within six months of delivery of the corrective deed, holding that the original deed was inoperative and a legal nullity because it did not effectively convey clear title, as it lacked descriptions for the properties; therefore, the date of delivery of the corrective deed prevailed. (April 12, 2016)

In Yaniveth R. v. LTD Realty Company, the New York Court of Appeals addressed whether a child resided in an apartment containing lead-based paint, triggering a landlord’s duty to remove the lead-based paint when the child did not live in the apartment but spent approximately 50 hours per week there with a caregiver. The court noted that the subject lead abatement legislation did not define the word “reside” and therefore, in applying the usual and commonly understood meaning of the word, the court held that residence implies something more than mere physical presence and something less than domicile. In so holding, the court concluded that because there was no evidence that the child’s mother intended for the child to live in the apartment or to retain the apartment as a residence, the child did not “reside” in the caregiver’s apartment. The court explained that although a person may reside at more than one location, spending 50 hours per week in an apartment with a non-custodial caregiver is insufficient to impose liability on a landlord under the subject lead abatement legislation. (April 5, 2016)

In Shedden v. Anadarko E. & P. Company, L.P., the Supreme Court of Pennsylvania addressed whether the doctrine of estoppel by deed applied such that an oil and gas lease between the parties covered the oil and gas rights to 100% of the property. The court determined that a showing of detrimental reliance is not a prerequisite of the equitable doctrine and therefore it applied to the lease in question. (March 29, 2016)

In Drummer Boy Homes Association, Inc. v. Britton, the Supreme Judicial Court of Massachusetts addressed whether G. L. c. 183A, §6 allows an organization of condominium unit owners to establish multiple contemporaneous priority liens on a condominium unit by filing successive legal actions to collect unpaid monthly common expense assessments. The court held that the statute allows for such liens and, therefore, the condominium association was allowed to file successive legal actions against the unit owner in order to recoup the unpaid common expenses. (March 29, 2016)

In Coyle v. City of Lebanon Zoning Hearing Board, the Commonwealth Court of Pennsylvania reversed the City of Lebanon Zoning Hearing Board’s decision granting an attorney a temporary use variance to operate a private law practice out of her home which had been zoned for residential use only. The Court held that although the Zoning Board was empowered to issue temporary use variances, the party seeking the variance was required to present evidence satisfying the unique physical circumstances and unnecessary hardship requirements of the Pennsylvania Municipalities Planning Code. Without this evidence, the Zoning Board was not permitted to issue the temporary use variance. (March 23, 2016)

In Almeida v. Arruda, the Appeals Court of Massachusetts considered whether permitting beer and wine sales at a convenience store operating as a lawful pre-existing nonconforming use constituted a substantial change in use. The court held that where the beer and wine would be sold in the same space as the store’s current operations and was integrated with the store’s current goods, there was no change in substantial use of the property. Furthermore, permitting the sale of beer and wine did not constitute a detriment to the neighborhood. (March 18, 2016)

In I Bldg, Inc. v. Cheung, the New York Supreme Court, Appellate Division, 1st Department, held that guaranties and leases are separate documents under which distinct causes of action arise. When a guarantor is sued on the guaranty, “she cannot raise a claim or defense which is personal to the principal debtor.” Therefore, the landlord’s alleged violation of obligations under the lease may not be raised as a defense in an action seeking to enforce the guaranty. (March 8, 2016)

In Evans v. Mayer Tree Service, Inc., the Appeals Court of Massachusetts addressed whether a tree cutting company was liable under G.L.C. 242, §7 for cutting down a property owner’s trees without license to do so. The court held that even though the company cut the trees at the instruction of a government official, there was still the possibility that the agency instructions were invalid, and the trees were cut by mistake. As such, the court determined that more facts were needed to assess whether the government’s authority to instruct the company to cut down the trees was limited by the agency’s policies regarding written permission from the property owner. (March 3, 2016)

In Bezjak v. Diamond, the Superior Court of Pennsylvania examined the effect of bankruptcy on the requisite 21 year period for adverse possession. The court determined that a possessor cannot tack the years of its possession onto those of a predecessor in title for purposes of adverse possession where the predecessor in title filed for bankruptcy. The court explained that a record owner’s filing of bankruptcy interrupts the continuity of possession and defeats a claim of adverse possession. (March 3, 2016)

In the Matter of Village of Haverstraw v. Ray River Company, Inc., the New York Supreme Court, Appellate Division, 2d Department, determined whether Ray River Co. could extend their time to file a notice of appearance pursuant to EDPL 503(B) in an eminent domain proceeding. Pursuant to the judgment in the Village’s condemnation petition, Ray River Co. was to file a written claim for damages or notice of appearance pursuant to EDPL 503(B) on or before March 31, 2009. The court noted that the timing requirement was neither a statute of limitations nor a condition precedent to compensation, and may be extended upon good cause shown. Because Ray River Co. established “good cause” the court granted their move for an extension of time to file a notice of appearance. (March 2, 2016)

In Embreeville Redevelopment L.P. v. The Board of Supervisors of West Bradford Township, the Commonwealth Court of Pennsylvania addressed whether West Bradford Township’s Zoning Ordinance 2013-6 was valid, whether the ordinance constituted a curative text amendment or zoning map change, and whether the township fulfilled proper notice requirements under Section 609(b) of the Municipalities Planning Code. The court held that the ordinance added a new use to the township’s I-Industrial District, a zoning map change, requiring notice of a hearing in accordance with the Municipalities Planning Code, which was not done in this case. (March 2, 2016)

In Sewall-Marshal Condominium Association v. 131 Sewall Avenue Condominium Association, the Appeals Court of Massachusetts addressed whether an arrangement between two condominium associations, splitting a parking lot into two sections, with eighty percent controlled by the larger of the associations, was not only unconscionable, but also unenforceable because it failed to comply with G.L.C. 183A. The court held that the parking arrangement was a valid contract, because it was not unconscionable, and did not violate G.L.C. 183A(March 1, 2016)

In Bon Ayre Land LLC v. Bon Ayre Community Association, the Supreme Court of Delaware addressed the proper standard of review of an arbitrator’s ruling on a rent increase under a new statute that limits the ability of property owners leasing land to owners of manufactured homes to increase rent above the applicable consumer price index. While the statute says the proceeding before the arbitrator is “nonbinding,” it also says that the arbitrator’s ruling will be reviewed by the Superior Court and that the appeal will be “on the record without a trial de novo.” The court held that the statute was unclear about what standard of review the Superior Court should apply; therefore, the Superior Court did not err by reviewing the dispute de novo. (February 25, 2016)

In City of Philadelphia v. Philadelphia Scrapyard Properties, LLC, the Commonwealth Court of Pennsylvania addressed redemption of vacant property after the acknowledgement of the sheriff’s deed. Under the Municipal Claims and Tax Liens Act (Act), former owners of property sold under a sheriff’s sale may not redeem the property if it is vacant after the sheriff’s sale, unless the property was continuously occupied by the same individual or basic family unit. The court defined a basic family unit as “the fundamental part of a group of individuals living under one roof.” Consequently, the change of one individual in a six person “basic family unit” does not result in a vacant property under the Act. (February 24, 2016)

In U.S. Bank National Association v. Akande, the New York Supreme Court, Appellate Division, 2d Department, addressed whether an assignee of an underlying note had standing to commence a mortgage foreclosure action. The court explained that a mortgage foreclosure action can be commenced by either the holder or assignee of the underlying note at the time the action is commenced, and that either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident. In holding that the assignee had standing to commence the mortgage foreclosure action, the court stated that an “Assignment of Mortgage” which granted, sold, assigned, transferred, and conveyed to the assignee all beneficial interest under the mortgage together with the note and obligation was sufficient to demonstrate the assignee’s status as an assignee of the note as of the date the action was commenced. (February 17, 2016)

In T-Mobile Northeast, LLC v. Borough of Mendham Board of Adjustment, the Superior Court of New Jersey, Appellate Division, considered the denial of a conditional use variance for a wireless telecommunications facility by a local zoning board pursuant to N.J.S.A. 40:55D-70(d)(3). The court reversed the denial and granted the variance, finding that the telecommunications company had met its burden under the statute of demonstrating that the proposed use was “inherently beneficial.” The court cited that key to this finding was the increased telecommunications coverage in the area, and the minimal safety risk and impact on the surrounding neighborhood. (February 16, 2016)

In Hartman v. The Zoning Hearing Board of Cumru Township, the Commonwealth Court of Pennsylvania addressed whether a dwelling to house three terminally ill residents that would be cared for by four volunteers on a daily basis was a single-family dwelling under a local zoning ordinance. The court held it was a single-family dwelling because the arrangement is stable and permanent, the residents will maintain the home as a functional common household, and the four volunteers’ primary purpose is to provide a family-like environment. (February 12, 2016)

In Estate of Helen Del Terzo v. 33 Fifth Avenue Owners Corporation, the New York Supreme Court, Appellate Division, 1st Department, addressed whether a cooperative corporation (Board) could refuse transfer of shares appurtenant to an apartment from a decedent’s estate to the rightful heirs to the apartment. The court noted that, at common law, a cooperative corporation is not restricted in withholding its consent to the transfer to an apartment absent illegal discrimination, but relied upon a controlling lease provision stating that "consent shall not be unreasonably withheld to an assignment of the lease and shares to a financially responsible member of the Lessee's family." Finding that the Board’s decision to deny the transfer was not insulated by the business judgment rule, that the Board’s fears that joint ownership by both heirs would lead to an overcrowded apartment were speculative, and that the heirs were entitled to statutory attorneys’ fees, the court ordered the Board to consent to the transfer. (February 11, 2016)

In In Re: Condemnation by Pennsylvania Department of Transportation, the Commonwealth Court of Pennsylvania addressed whether PennDOT’s declaration of a taking was untimely filed under Section 302(e) of the Eminent Domain Code. The court refused to interpret Section 302(e) as a statute of limitations and found that it was directory rather than mandatory, thus holding the declaration to have been timely filed. (January 29, 2016)

In U.S. Bank National Association v. Wolnernan, the New York Supreme Court, Appellate Division, 2d Department, determined that an applicant for a default judgment against a defendant lender in a foreclosure action must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting lender’s failure to answer or appear. The court further found that in order to combat a default judgment, the defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense. (January 20, 2016)

In Lane Altschuler v. Jobman 478/480, LLC., the New York Supreme Court, Appellate Division, 1st Department, addressed whether the landlord improperly deregulated an apartment while it was receiving J-51 tax benefits, entitling tenant to rent-stabilized status for the duration of his tenancy and to collect any rent overcharges. The court held that the defendant failed to show that its deregulation of the apartment was proper under a 1996 advisory opinion from the New York State Division of Housing and Community Renewal (DHCR), as the record indicated that the apartment was rent stabilized solely because of J-51 tax benefits. (January 7, 2016)

In Citimortgage v. Barbezat, the Superior Court of Pennsylvania addressed if a mortgagee is properly notified of a foreclosure action under Act 6 when the lender’s name is incorrectly stated on a notice which is otherwise in compliance with Act 6. The court held that the purpose of the Act 6 Notice is to protect residential homeowners who are in dire economic straits from overly zealous mortgage lenders. Therefore if the debt and the nature of the default are identified on the notice, an incorrect lender named on the notice does not result in a deficient Act 6 Notice. (January 7, 2016)

In Northern Forests II, Inc. v. Keta Realty Company, the Superior Court of Pennsylvania determined whether a judgment which established the status of real property rights and was relied on by private property owners and various business entities and unquestioned for more than 23 years could be automatically stricken due to the fact that the affidavit supporting the service by publication was allegedly not in full technical compliance with Pa.R.C.P. 430. The court determined that the judgment was properly stricken because there was a failure to join an indispensable party and a failure of proper service of process on any defendant in the original quiet title action. (December 4, 2015)

In Hi-Tech Bridging, Inc. v. 125th St. Equities, Inc., the New York Supreme Court, Appellate Division, 1st Department, found that an expired notice of pendency is a nullity and may not be revived. The court determined that because a mechanic’s liens terminated upon the expiration of the notice of pendency filed in this action, the court properly dismissed the complaint. (December 3, 2015)

In Conley v. Guerrero, the Superior Court of New Jersey, Appellate Division, addressed the form of notice required to terminate a real estate contract under the three-day attorney review provision. The court held that “any form of actual notice suffices as it pertains to the buyer." Although the court declined to state that email was always a valid method of notice, it held that actual notice was sufficient to cancel the contract. (November 2, 2015)

In K-Bay Plaza, LLC v. Kmart Corporation, the New York Supreme Court, Appellate Division, 1st Department, addressed whether an action for fraud and for breach of a lease, containing internally inconsistent rent escalation provisions, was time-barred. The court noted that, because the allegedly erroneous rent statements consistently used the same formula to determine the escalation, the landlord’s claim accrued upon transmission of the first rent statement, and rejected arguments that a new cause of action accrued each year notwithstanding a no-waiver lease provision. The court also found the landlord’s fraud claim was time-barred because the tenant’s initial underpayment placed the landlord on inquiry notice. (October 29, 2015)

In Pondview Corporation v. Russand, Inc., the New York Supreme Court, Appellate Division, 2nd Department, addressed whether the owners of a certain property must pay an operating deficit incurred while an assisted living facility located on the property was under receivership. The court found that CPLR 8004(b) applied, which allows the court to direct a party who moved for the appointment of a receiver to pay necessary expenses and compensation under special circumstances. The receiver had demonstrated that the money it expended was necessary and beneficial to those parties who had sought the receiver’s appointment. (October 28, 2015)

In Summers v. Financial Freedom Senior Funding Corporation, the United States Court of Appeals for the First Circuit addressed whether the inheritor of a property could set aside a foreclosure by the holder of a reverse mortgage taken out by the deceased because the holder of the mortgage had not filed a claim against the estate in probate. The court held while that the failure to file a claim in probate proceedings may extinguish personal liability on the note secured by the real estate mortgage, that failure does not extinguish the mortgage itself. Thus the foreclosure was valid. (October 23, 2015)

In Bank of America, N.A. v. Diamond Financial, LLC, the Supreme Judicial Court of Massachusetts held that a first mortgage holder was entitled to be equitably subrogated to the priority position, despite the fact that the first mortgage holder could make a claim against its title insurance. The second mortgage had not been discovered during a refinancing, and, as a result, the second mortgage holder had not entered into a subrogation agreement at that time. The court held that equitable subrogation was appropriate because a title insurance claim was an inadequate resolution for many reasons, including the fact that the second mortgage holder would receive a windfall and the first mortgage holder would not be adequately compensated. (October 20, 2015)

In Magen David of Union Square v. 3 West 16th Street, LLC, the New York State Supreme Court, Appellate Division, 1st Department, addressed whether a predecessor in interest’s actions affects the successor’s claim of equitable ownership interest in property. Sixteenth Street Synagogue claimed equitable ownership interest in a building. In a prior action, the Synagogue’s predecessor in interest had sought declaratory relief concerning its claimed equitable co-ownership in the building. That action was dismissed, with prejudice, and the Synagogue’s predecessor stipulated to a discontinuance of that action. The court held that the Synagogue’s claim of equitable ownership was therefore barred by doctrine of res judicata. (October 15, 2015)

In UGI Utilities, Inc. v. City of Lancaster and PPL Electric Utilities Corporation v. City of Lancaster, the Commonwealth Court of Pennsylvania held that sections 263B-2, 263B-3, 263B-4(6), 263B-4(9) and 263D-1 of the City of Lancaster’s Ordinance, which implement a program for management of the City’s rights-of-way, are invalid because they are preempted by Pennsylvania’s Public Utility Code (Code). It further held that section 263B-5 of the City’s Ordinance, which imposes an annual right-of-way maintenance fee based only on its cost to maintain the right-of-way, is not a public utility regulation and therefore is not preempted by the Code or invalid. (October 15, 2015)

In Roman Catholic Archbishop of Boston v. Rogers, the Appeals Court of Massachusetts held that a dispute related to ownership of a church did not require consideration of the Universal Law of the Roman Catholic Church (canon law) because the issues of ownership and wrongful entry were capable of resolution under “neutral principles of law,” defined by the United States Supreme Court as “well-established concepts of trust and property law familiar to lawyers and judges.” Here, the court could determine ownership by examination of deeds and expert affidavits, and no additional inquiry into religious doctrines was required. (October 14, 2015)

In Deutsche Bank v. Gardner, the Superior Court of Pennsylvania reviewed a mortgage foreclosure action where a borrower argued his right to rescind a mortgage was extended from three days to three years after a closing on the refinance loan due to improper notice of his rescission rights in the H-8 model form under the Truth in Lending Act (“TILA”). The court agreed that the ambiguity in H-8 notice in the context of a refinance loan constitutes a violation of TILA and extends the duration of the borrower’s rescission rights from three days to three years. However, absent any evidence of fraud or deceit on the bank’s part, it was improper to terminate the bank’s security interest obtained in the refinance transaction without also requiring the borrower to fulfill his tender obligation to the bank. After having the tender obligation calculated, the borrower must satisfy it by paying it either in a lump sum or over time. (October 14, 2015)

In Wright v. Misty Mountain Farm, LLC, the Superior Court of Pennsylvania addressed whether oil, gas, and mineral rights originally excepted from transfer in a deed ultimately convey to the successors of grantees once the duration applicable to the exception lapses. The court found that, because title to the excepted rights remains with the grantor, it demises through the grantor’s estate absent an explicit language providing otherwise. Where no “exception to the exception” is present, the grantees never obtain the excepted rights and they pass to the successors of the grantor. (October 9, 2015)

In Sears, Roebuck & Co. v. 69th Street Retail Mall, L.P.the Superior Court of Pennsylvania reviewed whether judgment not withstanding a jury’s verdict (JNOV) was appropriate where it was alleged that a tenant failed to present evidence sufficient to satisfy the stringent standard for claims for constructive eviction. The jury’s award for intentional interference with contractual relations was also disputed. In addition, the tenant challenged the trial court’s failure to allow the tenant an opportunity to submit its punitive damages claim to the jury. As to evidence of constructive eviction, the court found it was appropriate to consider all of the problems experienced collectively, rather than separately, to determine there was constructive eviction. The specific evidence presented provided an adequate basis upon which a jury could conclude that the deficiencies and non-responsiveness were of a substantial nature and so injurious to the tenant as to deprive it of the beneficial enjoyment of a part or the whole of the demised premises. Further, the court found the jury could have concluded that the tenant vacated in a reasonable amount of time relative to the events and problems experienced. The court remanded the case to allow the tenant to try its punitive damages claim. (October 2, 2015)

In Cashin v. Bello, the Supreme Court of New Jersey considered whether the Anti-Eviction Act (which permits the “owner of a building of three residential units or less” to oust a tenant if the owner intends to personally occupy the unit) could be applied to remove a tenant from a two-story single family home built in a converted garage by an owner who possessed a multi-unit apartment on the same parcel of land. The court held that the term “building,” as used in the Anti-Eviction Act, refers to a discreet physical structure and that it is immaterial that the structure is connected by ownership to another building on the same land. Accordingly, the building owner was permitted to evict the tenant on the grounds that she desired to personally occupy the unit. (October 7, 2015)

In Walters v. Zoning Hearing Board of the City of Easton and Pegasus Tower, Co., Ltd., the Commonwealth Court of Pennsylvania held that  property owners had standing to appeal a decision made by the Zoning Hearing Board of the City of Easton Court allowing a large monopole containing communication panels to be built on their adjacent land because the owners: 1) participated in the Board proceedings; and 2) offered sufficient evidence that they were parties to the action since their land was potentially impacted. (October 8, 2015)

In Stanley Acker Family L.P. v. DePaulis Enterprises, Ltd., the New York Supreme Court, Appellate Division, 2d Department, held that when “an owner of property sells a lot with reference to a map, and the map shows that the lot abuts upon a street, the conveyance presumptively conveys fee ownership to the center of the street.”  The presumption, however, can be rebutted “by a showing in the deed of a contrary intent to exclude from the grant the bed of the street.” (October 7, 2015)

In First Republic Bank v. Salander, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a defendant seeking to vacate a default in a foreclosure action must show more than a reasonable excuse for that default. The court noted that while defendant did show a reasonable excuse, the decision to deny the motion to vacate the default was appropriate since defendant failed to show the existence of a meritorious defense. The court further noted that arguments first raised by defendant in reply to the opposition to the motion to vacate default were not properly raised before the Court, and were thus insufficient to vacate the default. (August 26, 2015)

In Lescinsky v. Township of Covington Zoning Hearing Board, the Commonwealth Court of Pennsylvania held that an adjacent landowner’s intervention in a land use zoning appeal was deficient because it was not verified and served in the manner of an initial pleading as set forth by the Pennsylvania Rules of Civil Procedure. In so holding, the Commonwealth Court strictly construed the rules governing intervention in land use appeals and denied an adjacent landowner’s appeal for lack of standing despite the fact that the adjacent landowner was permitted to participate in the zoning enforcement matter at the trial level after filing only a Notice to Intervene (and not a formal Petition to Intervene as required). (August 20, 2015)

In Ramalingam v. Keller Williams Realty Group, Inc., the Superior Court of Pennsylvania addressed whether the Pennsylvania Code provisions, regarding the non-waivable duty of a broker to hold deposits in escrow, could be extended to a builder. The court held that the escrow provisions only apply if funds are entrusted to a real estate agent, not where the buyer makes a knowing decision to pay the deposit directly to the builder. (August 18, 2015)

In Huckleberry Associates, Inc. v. South Whitehall Township Zoning Hearing Board, the Commonwealth Court of Pennsylvania addressed an appeal pertaining to various parcels of land which did not obtain a zoning permit, in accordance with town ordinance, to change the use of the land from a surface mine to a solid waste recycling facility. The court held that the township did not acquiesce in the establishment of the solid waste recycling facility, and that Huckleberry was property cited with the civil enforcement notice for the failure to obtain a zoning permit. (July 15, 2015)

In Griffin v. Sherwood Village, Co-op “C”, Inc., the New York Supreme Court, Appellate Division, 2d Department addressed whether a cooperative’s decision to deny a resale application was protected by the business judgment rule. The court held that the cooperative was entitled to the business judgment rule because the cooperative demonstrated that its denial of the resale application was authorized, and done in good faith and in furtherance of the legitimate interests of the cooperative, in light of significant debt the prospective buyer held relating to a separate property. (July 15, 2015)

In JF Capital Advisors, LLC v. Lightstone Group, LLC, the New York Court of Appeals addressed whether the statute of frauds applies to consulting services for the potential purchase of property. The court held the statute of frauds required a written contract when the advisors assisted with the negotiation of a business opportunity, but a written contract is not required if the advice concerns whether to initiate negotiations. (July 1, 2015)

In Black v. New Castle County Board of License, Inspection and Review, the Supreme Court of the State of Delaware confirmed that where the General Assembly has failed to provide a right of direct appeal to parties aggrieved by a Board decision, such as upholding the issuance of a certificate of change in use to a property owner, the Superior Court’s review through a petition for a writ of certiorari is not a substitute for a direct appeal. To the contrary, such a review is strictly limited and the reviewing court may not weigh evidence, review the Board’s factual findings, or consider the case on its merits. The review is limited to determining whether the Board exceeded its jurisdiction, proceeded illegally or manifestly contrary to law, or proceeded irregularly. (June 29, 2015)

In Schadt v. City of Bethlehem Zoning Board, the Commonwealth Court of Pennsylvania addressed the requirements for a residential landowner to qualify for a use variance and construct an office building in place of her home. The court held that her inability to sell the property for four months did not rise to the level of “unnecessary hardship” required to obtain a use variance. Further, the court held that although a bookstore already on the site was a “non-conforming use” of this residential property, the landowner could not create an entirely new non-conforming use by constructing an office building. (June 26, 2015)

In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, the United States Supreme Court addressed whether disparate-impact claims are cognizable under the Fair Housing Act. The Court held that, like the Civil Rights Act of 1964 and the Age Discrimination in Employment Act, the Fair Housing Act allows for disparate impact claims because (1) the text of the Act referred to the consequences of actions and (2) such an interpretation was consistent with the purpose of the law − eliminating discriminatory housing practices. The Court further held, however, that disparate-impact claims cannot be based solely on statistical disparities, or where a particular housing policy is necessary to achieve a valid goal. (June 25, 2015)

In Orman v. Mortgage I.T., the Superior Court of Pennsylvania addressed whether a husband is an indispensable party in a quiet title action filed by his wife with respect to a mortgage which they had both signed. The court held that in a case affecting title to property, any party claiming title to the subject property is an indispensable party and therefore the husband was indispensable. (June 2, 2015)

In Tidd v. Lower Saucon Township Zoning Hearing Board, the Commonwealth Court of Pennsylvania addressed the standard for granting a zoning variance based on an unnecessary hardship. Because the applicant showed that unique physical conditions necessitated zoning relief in order to avoid significantly limiting usable area, the variance granted by the zoning hearing board was upheld. (May 29, 2015)

In U.S. Bank v. Pautenis, the Superior Court of Pennsylvania addressed determinative evidentiary and pleading issues in a mortgage foreclosure action. Specifically, the court held that, where a mortgagor fails to prove the amount of indebtedness, the mortgagor is not entitled to relief. Furthermore, the court held that, where a homeowner’s answer generally denies the alleged amount of indebtedness, but the homeowner shows that she is unable to determine it, the general denial will not have the effect of an admission. (May 29, 2015)

In Callowhill Neighborhood Association v. City of Philadelphia, the Commonwealth Court of Pennsylvania affirmed a decision of the Zoning Board of Adjustment permitting an existing, free-standing outdoor sign to change from static to digital. While upholding the legality of the sign, the court found that the objector had standing to contest the decision because the light from the sign would shine directly onto the objector’s property. However, the court declined to find that the sign would be a public nuisance because the type of sign to be built had not yet been determined. (June 17, 2015)

In Rosenthal & Rosenthal, Inc. v. Vanessa Benun, the Superior Court of New Jersey, Appellate Division, addressed the application of the common law of optional future advances to determine the proper priority of mortgages. The earlier mortgages secured not only existing debts but also future advances made at the mortgagee’s discretion to the debtor. Because the earlier mortgagee made optional advances with actual knowledge of the subsequent mortgage, the common law gives priority to the subsequent mortgage over the earlier mortgage. (June 17, 2015)

In Grabowsky v. Township of Montclair, the Supreme Court of New Jersey held that a lawsuit challenging a zoning ordinance allowing construction of an assisted living community could not be disposed of via summary disposition. The court remanded the matter for discovery into whether a conflict of interest existed when (1) two voting municipal officials held leadership positions with a church adjacent to the proposed site and (2) one voting member commented that his mother may reside in the community one day. (June 15, 2015)

In Duke Energy Fayette II, LLC v. Fayette County Board of Assessment Appeals, the Commonwealth Court of Pennsylvania addressed whether it was reasonable to reassess a premises in 2011 after the expiration of the premises’ status as a Keystone Opportunity Zone. The court held that the assessment pursuant to Section 8817 of the Consolidated County Assessment Law should have occurred when improvements to the land were made and “not at an arbitrary time in the future,” therefore the reassessment was unreasonable and constituted a spot assessment. (May 28, 2015)

In Bastian v. Sullivan, the Superior Court of Pennsylvania held that a joint tenancy with the right of survivorship, which included an exception provision to re-enter the land to extract subsurface materials such as oil, gas and minerals, was not converted to a tenancy in common when a portion of the land was conveyed years prior. The court held that there was no indication that the grantors intended to terminate the joint tenancy with the right of survivorship estate when the land in question was conveyed. The court further held that including spousal names as grantors on the transferring deed for the surface estate was not an affirmative step amounting to an act that is of sufficient manifestation of the intent to create a tenancy in common for the subsurface estate. (May 22, 2015)

In Wells Fargo Bank, N.A. v. Cookthe Massachusetts Appeals Court considered whether a judge in the Boston Housing Court should have considered the HUD Handbook where the mortgage obtained by the borrower from the bank expressly incorporated HUD Regulations. The court determined that, because the HUD Handbook was consistent with the HUD Regulations, the HUD Handbook should have been considered by the lower court when interpreting the terms of the mortgage. (May 19, 2015)

In Schwartz v. Hotel Carlyle Owners Corporation, the New York Supreme Court, Appellate Division, 1st Department, addressed the issue of whether the plaintiff apartment owner could prevail in a suit for trespass, conversion, and breach of the covenant of quiet enjoyment for items that went missing from his apartment after hotel employees entered the apartment to fix a water leak. The court noted that the fact that the lease allows hotel employees to enter for repairs and maintenance required dismissal of the trespass claim, and the absence of evidence that hotel employees (as opposed to other visitors) converted the items required dismissal of the conversion claim. Finally, the court noted the covenant of quiet enjoyment claim failed due to lack of demonstrable ouster, and plaintiff’s failure to pay rent constituted an election of remedies so that there was no remaining claim for damages. (May 19, 2015)

In 388 Route 22 Readington Realty Holdings, LLC v. Township of Readington, the Supreme Court of New Jersey considered the circumstances under which a municipality may exercise its discretion to repurchase unused sewer capacity. Here, a developer requested the Township repurchase unused sewer capacity that it sold to private parties in order to advance construction of a retail outlet and restaurant. The Court held that the Township’s policy of not recapturing unused sewer capacity sold to private entities is the equivalent of an improper moratorium on development. Rather, the Township must both undertake a detailed analysis of the unused capacity in the hands of private parties and explain whether any of that capacity can be recalled. (May 5, 2015)

In Perelmuter v. LRM Bldrs., LLC, the New York Supreme Court, Appellate Division, 2d Department, addressed the right to intervene in an action under CPLR 1012. In this mortgage foreclosure action, the proposed intervenors had entered into a contract of sale with the defendant building to purchase the real property which was the subject of the action. The proposed intervenors had also been awarded a judgment against the building for specific performance of the contract. The court held that the proposed intervenors had an interest in the subject property which may be adversely affected by the judgment of foreclosure and sale in the action, which entitled them to intervene as a matter of right. (April 29, 2015)

In In Re Failure of the Council on Affordable Housing to Adopt Trust Fund Commitment Regulations, the Superior Court of New Jersey, Appellate Division, addressed the New Jersey Council on Affordable Housing’s (COAH) failure to adopt regulations defining when affordable housing trust funds are committed. The court held that since the Legislature gave clear and unambiguous direction that such regulations were to be promulgated and COAH failed to do so, COAH is enjoined from seizing affordable housing funds and that the use and disposition of those funds will be decided by designated trial judges instead. (April 9, 2015)

In Kaymark v. Bank of America, the United States Court of Appeals for the Third Circuit addressed the application of the Fair Debt Collection Practices Act (Act) to an attempt to collect for legal services not yet performed in a mortgage foreclosure action. The court held that including anticipated fees and expenses not yet incurred was contrary to the mortgage contract and the claim for such fees was a violation of the Act. (April 7, 2015)

In In Re Sale of Tax Claim Bureau of Bedford County of Tax Parcel G.14-0.00-007, the Commonwealth Court of Pennsylvania found the denial of a property owner’s Exceptions/Objections to Tax Claim Upset Sale was unlawful because the Tax Claim Bureau failed to advise the property owner of her option to enter into a written agreement to make installment payments on the balance owed. (March 30, 2015)

In Brentwood Borough School District v. HSBC Bank USA, N.A., the Commonwealth Court of Pennsylvania addressed whether the holder of a mortgage on property sold pursuant to a tax sale has a right to redeem the property if it is vacant. Pursuant to the Municipal Claims and Tax Liens Act, no right of redemption of vacant property exists after the date of acknowledgement of the sheriff’s deed. Because the property at issue was properly determined to be vacant – that is, it was not continuously occupied by the same individual for at least ninety days prior to the date of the sale – and because the subject redemption petition was not filed until after the date of acknowledgement, no right of redemption existed. (March 24, 2015)

In 244 Lenox Ave. LLC v Bazelais, the New York Supreme Court, Appellate Division, 1st Department, addressed the issue of whether the City of New York was procedurally correct in transferring property to a nonprofit organization following a tax foreclosure. Realty company brought suit against the nonprofit as well as the mortgagee of the property after purchasing a note from the mortgagee four months after the entry of judgment on the foreclosure. The court found that the realty company’s property interest was subordinate to the City’s tax lien, and the deed clearly indicated that the realty company was a qualified third party by the Department of Housing Preservation & Development.  Thus, the City was procedurally correct in its transfer of the property. (March 24, 2015)

In Citimortgage, Inc. v. Chow Ming Tung, the New York Supreme Court, Appellate Division, 2nd Department, addressed the issue of whether plaintiff made a prima facie showing of standing to foreclose based on a written assignment from the original lender, the note, and an affidavit attesting to the mortgagor’s failure to make payments. The court noted that where plaintiff’s standing is called into question as an affirmative defense in a foreclosure action, plaintiff must establish standing in order to foreclose. The court concluded that the provision of the abovementioned documents, absent opposition, was sufficient not only to show standing but to grant judgment in favor of the foreclosing party. (March 18, 2015)

In Harrison v. Cabot Oil & Gas Corporation, the Supreme Court of Pennsylvania addressed whether the primary term of an oil and gas lease should be equitably extended by the courts, where the lessor pursued an unsuccessful lawsuit challenging the validity of the lease.  The gas company sought a declaratory judgment that, in the event that the land owner’s suit failed, the primary term of the lease should be tolled during the time when the suit was pending.  The court disagreed, holding that the mere pursuit of relief challenging the validity of lease does not amount to repudiation of the lease. (February 17, 2015)

In Graham Court Owner’s Corp. v. Taylor, the New York Court of Appeals held that Real Property Law § 234, which imposes a covenant in favor of a tenant’s right to attorneys’ fees, applies to a lease that authorizes the landlord to cancel the lease upon tenant’s default, repossess the premises, and collect attorneys’ fees incurred in retaking possession. The court found that such a lease permits the landlord to recover fees that result from the tenant’s breach, and therefore serves as the basis for the tenant’s statutorily implied right to attorneys’ fees. (February 19, 2015)

In Herder Spring Hunting Club v. Keller, the Supreme Court of Pennsylvania granted a Petition for Allowance of Appeal on the following issues:

  1. Did the Superior Court err in ruling that a tax sale that occurred thirty-six years after the duly recorded severance of the subsurface oil and gas estate, extinguished petitioners’ interests where the tax deed and related documents described the assessed property as being held by the then unseated surface estate owner and when it is undisputed that there was no prior production or other basis upon which a valid assessment could be made of the reserved oil and natural gas interests?
  2. Did the Superior Court deny the petitioners’ due process rights under the United States and Pennsylvania Constitutions when it held that the 1935 tax sale divested petitioners of their properly reserved oil and natural gas interests?
  3. Did the Superior Court overlook controlling authority which provides that a grantee is bound by prior exceptions and reservations cited in its deed?
  4. Did the Superior Court exceed the scope of its appellate authority by making a factual finding that the petitioners never notified the Centre County Commissioners of their severed oil and gas estate when the trial court found that there was no evidence one way or another as to whether such notice was provided? (January 27, 2015)


In Sisson v. Stanley, the Superior Court of Pennsylvania addressed whether, under Rule 430 of the Pennsylvania Rules of Civil Procedure, property owners in a dispute to quiet title effectuated proper service of process via publication to the heirs of a reservation of rights of oil and gas underlying the owners’ property.  The owners served the Complaint to quiet title after filing an affidavit claiming that potential heirs to the reservation could not be found.  The court held that counsel for the property owners’ did not conduct a sufficient good-faith investigation to locate the heirs to satisfy Rule 430, including a search for wills or probate records, obituaries, and using internet services to trace ancestry and family history.  (January 28, 2015)

In Myers v. Ocean City Zoning Board of Adjustment, the Superior Court of New Jersey, Appellate Division, addressed whether a city needed to justify inconsistencies in zoning ordinances in response to a proposed master plan change.  The court held that, unless the city affirmatively changed the zoning ordinance, no justification was needed, but property owners still had the option to challenge a subsequent zoning ordinance on the grounds that it was inconsistent with the master plan. (January 16, 2015)

In Rosasco v. Cella, the New York Supreme Court, Appellate Division, First Department, addressed the issue of whether a part owner could rely on an estate’s appraisal to obtain partition and sale of the subject property. The court found that because the appraisal was prepared on the estate’s behalf it constituted a party admission, and because it supported the part owner’s assertion that it would be prejudicial to physically divide the property, partition and sale of the property was properly granted. (January 13, 2015)

In Montgomery County Tax Claim Bureau v. Queenan, the Commonwealth Court of Pennsylvania addressed the validity of a tax sale of a property where the tax claim bureau failed to comply with all of the notice requirements of the Real Estate Tax Sale Law.  The court held that while the property owner had actual notice of the tax sale, she was not provided with personal service of the notice as required.   The court concluded that the notice provisions of the Real Estate Tax Sale Law must be strictly construed, and a tax claim bureau’s failure to comply with all of the notice requirements ordinarily nullifies a tax sale. (January 12, 2015)

In Jesinoski v. Countrywide Home Loans, the United States Supreme Court addressed what steps a borrower must take to properly invoke the right to rescind a residential mortgage under the Truth in Lending Act (commonly known as TILA).  The Act provides that if a lender does not provide the requisite disclosures to a borrower within three days of closing a loan, the borrower has the right to rescind the transaction for up to three years.  The Court unanimously held that a borrower need only provide written notice to his lender within the 3-year period, the Act does not require him to file suit within that period. (January 13, 2015)

In T-Mobile South, LLC v. Roswell, the United States Supreme Court addressed whether, and in what form, local governments must provide reasoning when they deny applications to construct cell phone towers.  The Court held that the local government must provide the reasons for denial in written form, but not necessarily in the form of a direct letter or decision to the applicant, so long as the reasons are made available to the applicant contemporaneously with the denial letter. (January 14, 2015)

In Raup v. Dauphin County Board of Assessment Appeals, the Commonwealth Court of Pennsylvania addressed the issue of tax assessment on a single-owner newly subdivided property.  The court held that a new tax assessment was not warranted because there was not an improvement to the property or a sale of the property due to the fact that the owner transferred the property to himself and not “another party” as required under the law. (January 14, 2015)

In Wodinksy v. Kettenbach, the Massachusetts Court of Appeals addressed whether transactions between the board of trustees of a condominium trust and condominium residents satisfied M. G. L. c. 93A, where the board of trustees were shown to have been acting in their own self interests and not for commercial purposes on behalf of the trust.  Even though the condominium trust was a business entity involved in commercial transactions, the court held that the residents’ 93A claim failed as a matter of law because the transactions between the board of trustees and the residents were motivated by personal interests and not, as required by 93A, for a business purpose. (January 6, 2015)

In Gerg v. Twp. of Fox, the Commonwealth Court of Pennsylvania addressed whether an order determining that the township effected a de facto condemnation of a resident’s property for a public right-of-way easement is a final appealable order.  The court held that because there were additional unresolved claims, the order was interlocutory and not immediately appealable.  (January 6, 2015)

In 1148 Davol Street LLC v. Mechanic’s Mill One LLC, the Massachusetts Court of Appeals addressed whether a record owner of land may invoke a Massachusetts statute to limit the time period an adverse possessor may use to establish the requisite twenty-year limitations period where that adverse possession was not sufficient to satisfy the limitations requirement without using the time the city owned the land for public purposes.  The court held that since the statute’s purpose was to give the Commonwealth broad power to recover land held for public purposes, the statute could not be used by the private party to limit the timeline used to establish adverse possession. (December 12, 2014)

In Behar v. Glickenhaus Westchester Development, Inc., the New York Supreme Court, Appellate Division, Second Department, addressed whether the seller had a duty to disclose to the buyer that a golf course is located on adjacent property and that there is a risk of golf balls entering the premises.  The court held that since New York follows the doctrine of caveat emptor, the seller had no duty to disclose any information, and “any risk to the premises posed by the incursion of golf balls was a matter readily ascertainable by the plaintiffs through the exercise of ordinary intelligence…” (November 19, 2014)

In Honua Fifth Avenue LLC v. 400 Fifth Realty LLC, the New York Supreme Court, Appellate Division, First Department, addressed the issue of whether defendant’s refusal to adjourn the closing on a sale of property raised an issue of fact as to whether defendant, rather than plaintiff buyer, beached the contract of sale. The court noted that the contract of sale obviates plaintiff of any obligation to close if “any representation by defendant was false and had a “material adverse effect on [the fair market] value” of the property, and found the plaintiff’s expert’s affidavit regarding the existence of an air filtration defect raised issues of fact as to not only whether plaintiff breached the contract of sale, but whether defendant breached that contract by refusing to adjourn the closing. (November 13, 2014)

In Haskins v. Deutsche Bank National Trust Company, the Appeals Court of Massachusetts addressed whether a notice of a mortgagor’s right to cure a mortgage loan default, required under Massachusetts statute, is deficient if it is sent by the mortgage servicing agent (rather than the record holder of the mortgage), or if it identifies the servicing agent as the  mortgage holder.  Here, the homeowner was notified that he was in default, and notified of his 90 day right to cure, by the mortgage servicing division of a bank in a letter that identified that mortgage servicing division as the mortgage holder.  Record title to the mortgage was in fact held by Mortgage Electronic Registration Systems, Inc. (MERS). The court concluded that, in light of the purpose of the statute to permit a homeowner to contact the party who has authority to make decisions and allow the mortgagor to cure any default, the listing of the mortgage servicer was permissible under the statute. (November 10, 2014)

In Wells Fargo Bank v. Spivak, the Superior Court of Pennsylvania addressed whether a new notice of intention to foreclose should be sent to mortgagor after the initial mortgage foreclosure action was voluntarily withdrawn. The court held that, in accordance with the Loan Interest and Protection Law, 41 P.S. §§ 101 et seq. (“Act 6”), the bank was obligated to deliver new notice to the mortgagor prior to proceeding with a second foreclosure action, reasoning that it is both reasonable and necessary to require a second notice to effectuate a debtor’s statutory right to cure a default. (October 31, 2014)

In Lockwood v. Capano,  the Supreme Court of Delaware held that it was a question of fact as to whether the signing of an agreement was a condition precedent to the formation of a contract.  In this case, an investment group was formed to purchase property for commercial and residential real estate development.  A contribution agreement was prepared and signed thereafter by 3 of the 4 parties to the agreement for a loan on the property.  One of the parties failed to pay the loan pursuant to the contribution agreement.  The Court held that a factual determination must be made at trial as to whether a contract existed or whether the signing of the contribution agreement was a condition precedent to the formation of the contract. (November 10, 2014)

In Hairman v. Jhawarer, the New York Supreme Court, Appellate Division, Second Department addressed the issue of whether an occupant of real property can prohibit the property owner from terminating his occupancy.  The owner purchased the property using his the occupant’s funds with the mutual understanding that the owner would transfer title to the occupant once the occupant obtained a mortgage loan.  The owner subsequently transferred title of the property to a corporation that he owned, and the occupant brought suit to impose a constructive trust upon the property.  During litigation, the occupant moved for a preliminary injunction enjoining the owner from terminating the occupant’s possession of the property.  After weighing the four elements necessary for preliminary injunction, the court ruled that the occupant was entitled to the relief sought. (November 5, 2014)

In NYCTL 2008-A Trust v. Xiang, the New York Supreme Court, Appellate Division, Second Department, addressed the issue of when a party foreclosing on a real property tax lien is entitled to judgment as a matter of law.  The court held that, where the party submitted proof that the property owners made no payments on the tax lien, it was entitled to judgment as a matter of law. (October 29, 2014)

In Sabella v. Appalachian Development Corporation, the Superior Court of Pennsylvania held that the owner of the surface rights was not an indispensable party and therefore the failure to name the owner as a party did not defeat the court’s subject matter jurisdiction. Further, the court held that the discovery rule was applicable to toll the statute of limitations, for a claim brought by the owner of the oil and gas rights which were compromised by new owners, who purchased the oil and gas lease without conducting a full title search, and therefore qualified as “bad-faith trespassers.” (October 20, 2014)

In In re Deborack Glick v. Harvey, the New York Supreme Court, Appellate Division, 1st Department, ruled that a university does not need approval from the New York State Legislature to develop small parts of land currently being used as public parks as part of its expansion project. The court found that these strips of land were simply being used for “park like purposes” but were not actually parks, and thus, the project-approval process complied with all city regulations. (October 14, 2014)

In Village of Four Seasons Association, Inc. v. Elk Mountain Ski Resort, Inc., the Superior Court of Pennsylvania addressed landowners’ riparian rights in the context of non-navigable, land-locked bodies of water versus flowing watercourses.  The court held that non-navigable, land-locked bodies of water are owned by those who own the land beneath the water’s surface and the land abutting it.  Conversely, with bodies of water that are flowing or “tributary,” ownership of land does not include ownership of the water which flows over or past it. Therefore, the court held that an upper riparian owner has the right to make reasonable use of the water flowing on or past his property. (October 14, 2014)

In Liberty Place Retail Associates, LP v. Israelite School of Universal Practical Knowledge, the Superior Court of Pennsylvania addressed a landowner’s burden of proof required to obtain a permanent injunction against a group of demonstrators based on the laws of trespass and private nuisance.  With respect to trespass, a party must establish the demonstrators knew of a substantial certainty third-party onlookers would remain on the landowner’s private property.  Mere knowledge of likelihood is legally insufficient proof.  With respect to private nuisance, the court found that lawful activities may  be enjoined where they unreasonably interfere with another’s property rights, i.e., where the “gravity of harm outweighs the utility” of the demonstrator’s conduct or where the harm caused by the conduct is serious and the financial burden of compensating same is infeasible.  The court held that the landowner failed to meet its burden of proof on both claims. (October 14, 2014)

In Gilbert v. Synagro Central LLC, the Supreme Court of Pennsylvania granted a petition for allowance of appeal on the following issue:

1.    Did the Superior Court incorrectly interpret the Pennsylvania [RTFA] by requiring a jury trial to determine that the land application of biosolids falls within the Act’s definition of a “normal agricultural operation,” which was contrary to the Act and this Court’s precedent that statutes of repose and statutory interpretation present questions of law for resolution by courts, not juries? (October 14, 2014)

In Columbia Gas Transmission, LLC v. 1.010 Acres,  the United States Court of Appeals for the Third Circuit evaluated whether the gas company had the right of eminent domain to obtain easements over the land of objecting landowners, outside of the existing right of way, in order to replace deteriorating pipeline. The court found the “equally straightforward and clear” answer was yes, consistent with the Natural Gas Act, 15 U.S.C. § 717f(h) and assorted regulations implemented by the Federal Energy Regulatory Commission (FERC)  such as 18 C.F.R. § 2.55(b) and  157.202(b)(2)(i). (September 26, 2014)

In HSBC Bank v. Donaghy, the Superior Court of Pennsylvania held whether a lender had to show that it complied with the Home Affordable Modification Program (HAMP) before instituting foreclosure proceedings against a homeowner.  The court held that the lender was not entitled to summary judgment in the foreclosure action because there was a factual issue as to whether it had complied with HAMP and various sections of the subject mortgage agreement. (September 29, 2014)

In Fidelity National Title Insurance Company v Altshuler Shaham Provident Funds Ltd., the New York Supreme Court, Appellate Division, First Department, addressed whether to consolidate two actions relating to a failed loan concerning commercial real estate.  The title insurance company brought a declaratory action against the asset management firm.  In turn, the asset management firm, brought a third-party action against the corporate law firm.  The law firm’s motion to dismiss for failure to state a cause of action was proper because the title insurance company never made a claim against the asset management firm for which the law firm “is or may be liable.”  Thus, as the third-party complaint was dismissed, the court held that there are no longer any common questions of law or fact in the two actions, and the motion to consolidate should be denied. (September 25, 2014)

In Ingram v. Thorpe, the Supreme Court of Delaware considered a claim for breach of a conditional sales agreement in a real estate transaction. The Court found that: 1) the sellers violated the agreement by refusing the buyer’s cure of default which was in the form of an out-of-state-check rather than cash or an in-state check because the agreement did not specify the manner of payment; 2) the sellers were barred by collateral estoppel from re-litigating the Delaware Real Estate Commission’s determinations that they violated the agreement by failing to properly credit the buyer and provide a seller’s disclosure statement, and 3) the buyer was entitled to the full value of the down payment because the buyer’s ex-husband had assigned his rights under the agreement to the sellers. (September 26, 2014)

In Bank of America, N.A. v. Gibson, the Superior Court of Pennsylvania determined the validity of an assignment of a mortgage by the nominee for the lender, where the mortgage agreement stated that the nominee held legal title to the interests granted by the borrower and the nominee had the right to exercise any or all of those interests, including the release and cancellation of the mortgage agreement.  The court concluded that the grant to the nominee to exercise “any and all” interests incidental to legal title included the ability to assign the mortgage, and therefore the assignment was valid. (October 2, 2014)

In Fish, Hrabrick and Briskin v. Township of Lower Merion, the Commonwealth Court of Pennsylvania held that income in the form of gross receipts from lease transactions and rental income are not subject to the Township’s business privilege tax.  The court held that Section 301.1(f)(1) of the Local Tax Enabling Act excludes “any tax on leases or lease transactions” from a political subdivision’s right to impose taxes on real property.  As such, real estate income cannot be taxed by the Township because it is considered part of a “lease transaction.” (September 19, 2014)

In Reading Area Water Authority v. The Schuykill River Greenway Association, the Supreme Court of Pennsylvania addressed whether a municipal authority may exercise eminent domain to condemn an easement over privately owned land, so as to allow a developer to install sewer drainage facilities for a private residential subdivision. The court held eminent domain was not properly exercised because the size of the condemned property is in excess of that which would be needed. (September 24, 2014)

In Newtown Square East L.P., v. Township of Newtown, the Supreme Court of Pennsylvania addressed whether, under the Municipalities Planning Code, the Newtown Township Board of Supervisors properly enacted a Planned Residential Development Ordinance. The court held that the ordinance was valid and the township approval of the tentative plan was proper. (September 24, 2014)

In Brown v Deutsche Bank National Trust Company, the New York Supreme Court, Appellate Division, First Department, addressed the issue of whether the implied covenant of good faith could support inclusion of a duty to modify a mortgage note on the mortgage lender. The court found that it could not, and noted that plaintiff’s additional claims of improper securitization and lack of standing to enforce the notes were mere semantic variations. (August 28, 2014)

In In Re: Opening a Private Road for the Benefit of Timothy P. O’Reilly v.  Hickory on the Green Homeowners Association, the lead opinion in three related cases, the Commonwealth Court of Pennsylvania addressed various constitutional challenges to the Private Road Act (the Act) where the landowner petitioned and obtained approval under the Act to open a private road to access his landlocked parcel of land.  The court held that such approval constituted an unconstitutional taking because it was for private, not public use, and therefore lacked a sufficient public purpose.  The mere fact that a prior public works project had caused the parcel to become landlocked did not create a sufficient “public purpose” to render the taking constitutional. (August 27, 2014)

Links to the two related decisions are provided below:

Groner v. Kasmoch,  No. 1628 C.D. 2012 (August 27, 2014)

Raap v. Waltz, No. 975 C.D. 2012 (August 27, 2014)

In Shedden v. Anadarko E&P Company, L.P., the Supreme Court of Pennsylvania granted review on the following issue:

The trial court found as a matter of law that the lessors are estopped from denying that an oil-and-gas lease covered after acquired oil-and-gas rights even though the lessee only paid the lessors in proportion to the lessors’ actual interest. Was it error for the Superior Court to affirm the trial court’s grant of summary judgment in favor of the lessee and against the lessors? (August 15, 2014)

In 3615-15 Realty I, LLC v. Bedford Avenue Associates I, LLC, the New York Supreme Court, Appellate Division, 2d Department, addressed whether a plaintiff stated a cause of action to set aside an auction sale and whether documentary evidence established a defense to the action as a matter of law should have been resolved in connection with a defendants’ motion to dismiss. The court found that, based on the plaintiff’s allegations that its representative tendered a bid for the subject property and that the judgment creditor in the underlying foreclosure action improperly disregarded this bid, these issues should not have been resolved in connection with the defendants’ motion to dismiss and the matter must be remitted to the Supreme Court to be decided on the motion papers alone. (August 6, 2014)

In Point Holding, LLC v. Crittende, the New York Supreme Court, Appellate Division, Second Department, addressed whether the seller of real property was entitled to summary judgment dismissing a cause of action for specific performance of a contract for the sale of the real property based on the defendant seller’s argument that the plaintiff buyer refused to close in accordance with a clause that provided the “closing shall take place . . . on or about forty-five (45) days from date hereof.”   Because the contract at issue did not make time of the essence, did not provide a closing date, and did not warn that failure to close on a specific date would result in default, the court held that issues of fact remained regarding the reasonable time for performance. (July 30, 2014)

In Barrick v. State of New Jersey, the Supreme Court of New Jersey addressed whether the New Jersey Division of Property Management and Construction (“the Division”) acted arbitrarily in awarding a contract for the lease of office space to a property owner whose proposal failed to satisfy the location requirement set forth in the scope of work provided to all bidders.  The court held that the Division director’s determination that the distance requirement was not material to the request for proposals was reasonable and not arbitrary or capricious. (July 23, 2014)

In Milliken v. Jacono, the Supreme Court of Pennsylvania held that a murder/suicide that occurs within a house does not constitute a material defect of the property.  Consequently, the failure to disclose the information to the buyer of the home does not constitute fraud, negligent misrepresentation, or a violation of the Unfair Trade Practices and Consumer Protection Laws. The Court noted that the potential impact that a psychological stigma may have on the value of the property does not constitute a material defect. (July 21, 2014)

In Pottstown School District v. Petro, the Commonwealth Court of Pennsylvania considered whether the proceeds of a free and clear judicial sale should be distributed according to section 2 of the Municipal Claims and Tax Liens Act (MCTLA) and section 205(d) of the Real Estate Tax Sale Law (RETSL), which prioritize tax liens during distributions, or whether section 31 of the MTCLA, prioritizing older liens, controlled. The Court held that the MCTLA and case law required that the oldest tax liens be paid first, with any remaining proceeds distributed on a pro rata basis to the remaining taxing authorities asserting tax liens. (June 27, 2014)

In Allegheny West Civic Council, Inc. v. Zoning Board of Adjustment of City of Pittsburgh, the Commonwealth Court of Pennsylvania addressed whether the trial court erred when it decided that landowners did not need a variance to operate special events parking on an existing parking lot. The landowners filed an application for a variance to operate a special events parking lot with the Zoning Board of Adjustment of Pittsburgh (ZBA) at the direction of the zoning officer. The ZBA determined that a variance was not necessary, and the trial court agreed. The appellant argued that the only issue in the landowner’s appeal was whether they were entitled to a variance. The court was not persuaded by this argument, and it noted that an application for a variance is merely a “government form” the purpose of which is to get a landowner’s challenge on the ZBA’s agenda, not a pleading. On this basis, the court affirmed the trial court’s order. (June 18, 2014)

In 12160 & Argent Acquisitions, LLC v. First Church of Religious Science, the Supreme Court of New York, Appellate Division, First Department, addressed whether a letter of intent to purchase a property constitutes an enforceable contract for the sale of real property. The Court found that such a letter cannot be binding when it is missing material terms, including: (1) the specific terms of the escrow agreement for a contract deposit; (2) the specific closing date; (3) financing terms; (4) the risk of loss during the sale period; (5) the time and terms of payment of the purchase price; (6) a specific description of the subject property; and (7) the identity of the parties who signed the term sheet. (June 5, 2014)

In Plaza Equities, LLC v. Lamberti, the Supreme Court of New York, Appellate Division, Second Department, addressed the standard for entering summary judgment in an action to foreclose a mortgage.  The court held that a plaintiff must establish proper standing as part of its prima facie case, where the defendant has placed standing in issue. (June 4, 2014)

In JEP, LLC v. Dialysis 4 Career, LLC, the Supreme Court of New York, Appellate Division, Second Department, addressed whether the plaintiff-landlord was liable to the defendant-tenant for breach of contract when the defendants discovered that the certificate of occupancy for the building precluded them from operating a medical training facility on the premises. The court found that the defendants failed to demonstrate as a matter of law that it was the plaintiff’s responsibility to obtain a certificate of occupancy that would permit the defendants to use the premises as a medical training facility. (June 4, 2014)

In The Township of Summit v. Hessinger, the Commonwealth Court of Pennsylvania invalidated a lien, arising out of an economic development project, that was filed by the Township against the defendant property owner.  The Township claimed that a plot survey depicting improvements necessary for the development of the subdivision constituted a contract to pay for road construction and water and sewer line extensions, which bound adjoining property owners.  The court found that the lien was invalid as a matter of law because there was no notice of hearing or publication for the improvement, as is statutorily required; and that the plot survey did not constitute a contract setting forth a covenant and agreement to pay because it failed to adequately depict the property. (May 23, 2014)

In Herder Spring Hunting Club v. Keller, the Superior Court of Pennsylvania addressed whether, pursuant to 72 P.S. § 5020-409, owners of unseated land purchased through an 1894 tax sale retained ownership of subsurface rights after selling the property without notifying the county commissioners of their retention of subsurface rights.  The court held that the owners did not retain their subsurface rights because the horizontal severance of the property was never reported to the commissioners.  Thus, the property continued to be taxed as a whole and was obtained by a subsequent purchaser as a whole. (May 9, 2014)

In Lawson v. State of Delaware/ Department of Transportation, the Supreme Court of Delaware addressed for the first time the reimbursement provision of the Real Property Acquisition Act, 25 Del. C. Section 9503.  The court determined that said provision requires reimbursement  for litigation expenses related to condemnation proceedings where a court determines that the subject property cannot be acquired via the exercise of eminent domain in that proceeding. (April 24, 2014)

In BLDG ABI Enterprises, LLC v. 711 Second Ave. Corp., the New York Supreme Court, Appellate Division, First Department, addressed whether a motion for renewal could be properly made where no newly discovered facts existed, but where a defect in the date of the lease guaranty at issue was due to a scrivener’s error. The court found that while such motions are typically only available where newly discovered facts exist, the court has the authority to relax this requirement in the interests of justice, such that the plaintiff was properly allowed to assert a claim for reformation of the guaranty. (April 24, 2014)

In Gilbert v. Synagro Central, LLC, the Superior Court of Pennsylvania  addressed the limitations period for a nuisance claim involving farmland.  The court held, applying the Right to Farm Act (RTFA), that a nuisance suit under the RTFA must be brought within one year of a substantial change in farm operations.  The limitations period does not reset each time there is a change in the perception of the degree of offensive conditions which form the basis for a nuisance claim. (April 15, 2014)

In MLCFC 2007-9 Mixed Astoria, LLC v. 36-02 35th Ave. Development, LLC, the New York Supreme Court, Appellate Division, Second Department, addressed the standing requirements in a mortgage foreclosure action.  Because the plaintiff failed to demonstrate its prima facie entitlement to judgment as a matter of law by failing to establish that it had standing as the lawful holder or assignee of the subject note on the date that the lawsuit was commenced, the court properly denied the plaintiff’s application for the appointment of a receiver. (April 9, 2014)

In Scott v. City of Philadelphia Zoning Board of Adjustment and FT Holdings L.P., the Commonwealth Court of Pennsylvania considered whether a third-party individual who objected to a Zoning Board of Adjustment’s (Board) grant of a variance to a developer to build a condominium complex had standing to appeal as an “aggrieved party.” The court agreed with prior precedent that the developer’s failure to timely object to the individual’s standing before the appearance at the Board hearing resulted in a waiver of the ability to raise standing as an issue before a common pleas court. The court did not address the underlying substantive issue of whether the individual actually had standing. (March 21, 2014)

In U.S. Bank, N.A. v. Westwood, LLC, the New York Supreme Court, Appellate Division, Second Department, reversed a decision of summary judgment in favor of the plaintiff in a foreclosure action involving real property, which was the site of a department store and adjacent real property upon which a mall is located.  After owners of the mall and department store sites entered into an agreement that included a purchase option, the owner of the mall site assigned the purchase option to the defendant, which attempted to exercise the option after the department store ceased to operated, triggering the option.  Soon thereafter, the plaintiff commenced an action to foreclose on a mortgage encumbering the department store site and the defendant alleged that its purchase option was senior to any interest held by the plaintiff.  The court held that where the original agreement between the owner of the mall and department store sites contained a provision that its covenants were prior and superior to all mortgages, material issues of fact existed as to whether the defendant’s purchase option was superior in priority to the plaintiff’s mortgage. (March 26, 2014)

In Shedden v. Anadarko E&P Company, the Superior Court of Pennsylvania addressed whether the doctrine of estoppel by deed applies in real estate disputes regarding oil and gas leases.  Under this doctrine, where a party conveys land to which he has no title, or a defective title, and subsequently acquires good title, the title immediately inures to the benefit of the grantee.  The court held that estoppel by deed applies with equal force in the context of oil and gas leases as with other interests in land.  As a result, the court permitted the tenant to renew its lease for the entire property notwithstanding that, at the time of execution of the lease, the landlord owned only one-half of the acreage actually conveyed. (March 14, 2014)

In Doe v. Wilmington Housing Authority, the Supreme Court of Delaware held it was unconstitutional for a public housing agency to adopt a policy which (i) prohibits residents from displaying or carrying a firearm in common areas and (ii) requires production of the resident’s firearm license for inspection in the case of a violation of the policy.  The court reasoned that the policy was overbroad and infringed upon the right to bear arms set forth in Article I § 20 of the Delaware Constitution. (March 18, 2014)

In Pellicone v. New Castle County, the Supreme Court of Delaware addressed whether a county had the right to easements across private property for purposes of flood control.  The court found that the county was authorized to carry out flood control projects based on past flood damage to the property.  The court also found that the county had the power to condemn the property for purposes of carrying out the flood control project, and that all requisite procedural requirements were met. (March 19, 2014)

In Sovereign Bank v. Biagioni, the New York Supreme Court, Appellate Division, Second Department, found that the mere existence of an indemnity provision in a mortgage broker agreement did not obligate a borrower to indemnify the lender Bank for damages in the event that the note and mortgage were deemed unenforceable.  Rather, the court held that the right to contractual indemnification depends upon the specific language of the contract and such provisions are “carefully scrutinized” by the courts. (March 19, 2014)

In Wenzel v. 16302 Jamaica Ave., LLC, the New York Supreme Court, Appellate Division, Second Department, held that a plaintiff cannot rely on Administrative Code provisions as a predicate for its liability when it did not properly place the defendant-landlord on notice during the course of discovery that it would rely on those provisions.  The court noted that the fact that the plaintiff, who sustained personal injuries on a property leased from the defendant, gave notice to the defendants that it would rely upon other provisions of the Administrative Code did not allow them to rely on other provisions of the Administrative Code. (March 19, 2014)

In Upper Moreland School District v. Crisafi, the Commonwealth Court of Pennsylvania addressed how pre-sheriff sale payments are to be applied between the principal tax claim and additional fees and costs accrued (e.g., legal fees and costs) under the Municipal Claims and Tax Liens Act.   The court held that pre-sheriff sale payments are not prioritized.  Therefore, any pre-sheriff sale payment does not need to be applied to the principal before being applied to attorney fees and costs. (March 7, 2014)

In Howell v. City of Erie Blighted Property, Property Maintenance & Rental License Appeals Board, the Commonwealth Court of Pennsylvania considered whether a property owner’s application for a residential rental registration required the building to comply with Pennsylvania’s Uniform Construction Code, when the building was constructed before the effective date of that code.  The court held that because the property owner had not performed any construction or alteration to the property, compliance with the code was not required. (March 12, 2014)

In Deutsche Bank National Trust Co. v. Goldfeder, the Supreme Court of Delaware addressed whether an objection to a sheriff’s sale in an In Rem Scire Facias Sur mortgage action was time barred because it was presented after confirmation of the sale.  The court held that the delay was excusable because the objector was incompetent and the mortgagee suffered no prejudice. (February 14, 2014)

In Expo Development Corp. v 824 South East Blvd. Realty Corp., the New York Supreme Court, Appellate Division, First Department, addressed whether a moving party must evidence a lack of financial means when alleging an inability to afford counsel in its motion to vacate a foreclosure judgment.  The court held that such proof of financial hardship is required when alleging an inability to afford counsel in a motion to vacate for failure to defend.  Thus, the court ruled that defendant failed to set forth a reasonable excuse for its failure to defend against this action to foreclose on a mechanic’s lien. (January 28, 2014)

In Penn Street, L.P. v. East Lampeter Township Zoning and Hearing Board, the Commonwealth Court of Pennsylvania addressed whether changes to a zoning ordinance (ZO) constituted unlawful spot zoning, whether the changes were substantively valid and whether the applicant was denied due process because the zoning hearing board (ZHB) failed to act in a neutral capacity.  With respect to the claim of unlawful spot zoning, the court recognized that spot zoning must be clearly established, and if the validity of the ZO is debatable, the ZO must stand.  Accordingly, the court held that there was no unlawful spot zoning.  The applicant also argued that the ZO was substantively invalid because its restrictions were “excessive and unreasonably” restrictive. The court rejected the applicant’s substantive validity challenge, and cited the established rule that a ZO is presumed valid.  The applicant also argued that it was denied due process because the ZHB chairman acted in an adversarial manner.  The court found that isolated statements of the ZHB chairman did not clearly evidence bias, and rejected the applicant’s due process claim. (January 30, 2014)

In Kafa Investments, LLC, v. 2170-2178 Broadway LLC, the New York Supreme Court, Appellate Division, First Department, addressed whether language in an agreement of sale that released defendants from  “any and all claims,” “known and unknown” barred an action for fraud arising from the alleged intentional misrepresentation of the value of the property sold.  The court noted that although the defendants are arguably the fiduciaries of the plaintiffs that did not invalidate the release, since the plaintiffs were sophisticated parties represented by counsel. (February 4, 2014)

In Pedersen v. Monroe County Board of Assessment Appeals, the Commonwealth Court of Pennsylvania addressed whether a storage shed was taxable under the Consolidated County Assessment Law.  The court held that the current Assessment Law expressly narrows the class of buildings taxable as real estate, that is, only those buildings, which are permanently attached to the land or connected with water, gas, electric or sewage facilities, are taxable.  In this matter, the court held that the evidence of record failed to establish that the shed was attached in a manner sufficient to render it assessable under the law. (January 15, 2014)

In In re Landis’ Estate, the Superior Court of Pennsylvania addressed whether the judicial sale of property conducted pursuant to 42 Pa. C.S.A. § 8152 (judicial sale as affecting lien of mortgage) results in “extinguishment” of a first-priority right to the sale’s proceeds. The court held that, because a lien on real property attaches to the sale proceeds, the “secured lien on the sale property d[oes] not cease to exist as a secured claim,” but is transferred to the sale proceeds. (January 15, 2014)

In Croxton Collaborative Architects, P.C. v. T-C 475 Fifth Avenue, LLC, the New York Supreme Court, Appellate Division, addressed whether a purchaser of a building should be held liable for the acts of predecessor landlords that took place prior to purchase. The court found that, in the event of a transfer of title, the lease shall be deemed to run with the land and the transferee agrees to “assume” and “carry out any and all such covenants, obligations and liabilities of Landlord hereunder.” Therefore, the court held that plaintiff cannot seek damages relative to the period of time predating defendant’s ownership. (January 16, 2014)

In Southwestern Energy Production Co v. Forest Resources, LLC, the Superior Court of Pennsylvania addressed whether certain oil and gas lease agreements complied with the Guaranty Minimum Royalty Act (GMRA).  The court held that a contractual provision assigning back a portion of a defined royalty failed to guarantee the minimum royalty mandated by the GMRA. (November 27, 2013)

In Tri-County Landfill, Inc. v. Pine Township Zoning Hearing Board, the Commonwealth Court of Pennsylvania addressed whether a landfill is a “structure,” rendering it subject to a restriction in a zoning ordinance.  The court found that, pursuant to the ordinance’s definition of a structure as a “combination of materials forming a construction” and “any man-made object having an ascertainable stationary location,” a landfill constituted a structure that was prohibited by the ordinance’s 40-foot height restriction. (January 9, 2014)

In the Reserves Management Corporation v. R.T. Properties, LLC, the Supreme Court of Delaware addressed an agreement regarding payment of periodic assessments.  A company purchased seventeen lots in a development maintained by a second company.  Four years after the sale, the second company sent an invoice representing outstanding assessments claimed to be due on the properties purchased by the first company.  The Supreme Court held that the agreement contained only a forbearance of assessments payable to third party homebuyers, not an agreement to forbear collecting the assessments; and there was an issue of fact regarding the oral agreement to forebear. (November 15, 2013)

In ISP Bank v. Rajaratnam, the Superior Court of Pennsylvania considered an issue of first impression, whether separate judgments entered against a husband and wife may be consolidated so that assets held as tenants by the entireties may be executed upon to satisfy a joint indebtedness.  The separate judgments in this case were entered pursuant to separate documents, in separate transactions, and for separate consideration.  The court noted that, while Pa.R.C.P. 3025.1 authorizes the consolidation of “two or more judgments entered against the same person in the same county,” no procedural mechanism exists in Pennsylvania to consolidate judgments against different people.  Even if such a mechanism did exist, the court ruled that Pennsylvania substantive law would not permit such a consolidation against the couples’ joint assets, as the judgments against the husband and wife were not based on a “joint act” of the couple.  The court concluded that, to establish a joint debt that may serve as the basis for a lien on entireties property, the two spouses must act together in the same transaction and incur a joint liability. (November 25, 2013)

In DMJ Mortgage Capital, Inc. v. Kontogiannis, the New York Court of Appeals addressed whether a third-party purchaser of mortgages on the secondary mortgage market could rely on pre-closing documents to establish that a proper conveyance and recording of the underlying property occurred or that title insurance for the property was issued.  The court found that any such reliance was unjustifiable. (November 14, 2013)

In Suser v. Wachovia Mortgage, the Superior Court of New Jersey, Appellate Division, addressed the maintainability of a quiet title action involving property encumbered by prior mortgages.  Absent compelling circumstances, the court rejected equitable estoppel as a basis to extinguish a valid mortgage of which the plaintiff was aware when he acquired title to the property. The court, however, found that there was a legitimate dispute as to the assignment of another mortgage that warranted further proceedings. (November 4, 2013)

In TKO Realty, LLC v. Zoning Hearing Board of the City of Scranton, the Commonwealth Court of Pennsylvania addressed whether a property owner had established a pre-existing non-conforming use, and whether the non-conforming use had been abandoned.  A property owner can establish a pre-existing, non-conforming use by providing evidence that a lawful existing use was subsequently barred by a change in a zoning ordinance.  The court further noted that a non-conforming use is not abandoned unless the party asserting abandonment proves that the property owner intended to abandon the use and the use was actually abandoned.  Here, the court held that the property owner established the non-conforming use and there was no abandonment of that use. (October 18, 2013)

In City of Reading v. Iezzi, the Commonwealth Court of Pennsylvania decided whether the Solid Waste Management Act (SWMA) and the Municipal Waste Planning, Recycling, and Waste Reduction Act (Act 101) permit a city to impose recycling fees.  As both the SWMA and Act 101 were enacted to encourage recycling through planning and grants and contained no express provision permitting the assessment of a fee, the city’s assessment against the defendant property owner was not permitted by the statutes. (October 23, 2013)

In Soliman v. The Kushner Companies Inc., the Superior Court of New Jersey, Appellate Division, addressed whether a landlord and manager for a commercial office building invaded the privacy of its employees and family members of tenants under N.J.S.A. 2C:58D-1(b) by installing and maintaining video monitoring and recording equipment intentionally concealed inside smoke detectors in four public bathrooms.  The court held that a reasonable jury could find an invasion of privacy because “defendants’ clandestine video surveillance equipment captured images of plaintiffs performing personal grooming or biological activities that exposed their intimate parts.” (October 17, 2013)

In Smith v. Dorchester Real Estate, Inc., the United States Court of Appeals for the First Circuit addressed whether a straw man, who had been induced to act as a straw buyer in a fraudulent real estate mortgage scheme, had valid claims for fraud and breach of fiduciary duty against the real estate broker and mortgage broker involved in the transaction, for damage to his credit and other injuries.  The court held that, because the real estate broker’s agents were at the closing and assured the straw buyer that the investment was sound and they would “take care of everything,” he had valid claims for fraud and breach of fiduciary duty. (October 15, 2013)

In Alford v. Boston Zoning Commission, the Appeals Court of Massachusetts addressed whether the approval process required for expansion of a college campus was subject to Article 29 of the Massachusetts Declaration of Rights, a constitutional provision requiring impartiality by judges and any other adjudicatory authority. Under the Boston Zoning Code that educational institutions of a certain size file an Institutional Master Plan with the Boston Redevelopment Authority and is subject to public comment prior to approval.  Here, Boston College had submitted such a proposal and, in the course of the approval process, had communicated with the Boston Redevelopment Authority outside the public meeting process, one member of which was also a lobbyist on behalf of Boston College.  The court concluded that neither the allegations of bias nor the communications outside the context of a public hearing violated Article 29. (October 9, 2013)

In Plotch v Kapco Industries, Inc., the New York Supreme Court, Appellate Division, First Department addressed the issue of whether a plaintiff condominium winner at a foreclosure sale purchased the property subject to the defendant’s prior mortgage lien on the property.  The court found that the plaintiff explicitly agreed to assume the defendant’s mortgage lien.  Thus, the court held that the plaintiff is bound by the provisions of the previous owner’s mortgage. (September 27, 2013)

In D’Agostino v. Maldonado, the New Jersey Supreme Court issued a decision regarding application of the New Jersey Consumer Fraud Act (CFA), to a mortgage foreclosure rescue plan.  The court held that defendant’s use of misleading mortgage documents, causing plaintiffs to transfer property worth $480,000 to defendant for ten dollars, gave rise to an unconscionable commercial practice under the CFA.  The court further held that, even though the trial court’s order for equitable relief voided the transaction and restored the plaintiffs’ equity in their home, the transfer of that equity to defendant still constituted an ascertainable loss within the meaning of CFA, and the award of treble damages (minus the value of the equitable relief) was within the trial court’s discretion. (October 3, 2013)

In Beneficial Consumer Discount Co. v. Vukman, the Supreme Court of Pennsylvania addressed whether  the Homeowner’s Emergency Mortgage Act (Act 91), 35 P.S. § 1680.401c, imposes jurisdictional prerequisites on mortgage foreclosure actions.  The court held that a defective Act 91 notice issued by the mortgagor to the mortgagee does not deprive the court of subject matter jurisdiction in a foreclosure action. (September 25, 2013)

In State Room, Inc. v. MA-60 State Associates, the Appeals Court of Massachusetts addressed whether a tenant of long-term commercial tenancy at a downtown Boston high-rise office building may seek a second appraisal to determine the rental rate for a ten year extension of the tenancy. The lease terms provided for appraisal if the parties did not agree on rates for the extension, but the tenant was dissatisfied with the resulting appraisal.  The court noted that, in Massachusetts, courts review the correctness of an appraisal contractually authorized by the parties only for alleged fraud, corruption, dishonesty or bad faith, and that appraisal work undertaken within the standards of the contract is immune from review, even if mistaken. (September 13, 2013)

In Klein v. Weidner, the United States Court of Appeals for the Third Circuit addressed whether a husband, who was delinquent in paying spousal and child support to his ex-wife, violated the Pennsylvania Uniform Fraudulent Transfer Act (PUFTA) by purchasing a parcel of real property and transferring the property to himself and his current wife as tenants by the entirety.  The court held that the transfer violated the PUFTA because the transfer was made “with actual intent to hinder, delay or defraud any creditor of the debtor.” (September 3, 2013)

In Sano v. Tedesco, the Appeals Court of Massachusetts addressed whether balconies and the beams supporting them in a condominium complex were part of the units they serve or common areas, making repairs either the responsibility of individual unit owners or a common expense.  The court noted that the Massachusetts condominium statute supplies a default definition of common areas, but that developers may deviate from that definition through language in the master deed.  The court held that language in the master deed, including the inclusion of balcony area in the total square footage of the unit, indicated that the balconies were part of the individual units, but that the support beams were defined as common. (August 28, 2013)

In Kelley v. Cambridge Historical Commission, the Appeals Court of Massachusetts addressed whether property owners in the vicinity could invoke historical preservation laws to prevent a church community from demolishing a church hall and garden adjacent to a Romanesque revival style church on the National Register of Historic Places.  The court determined that even abutting property owners had no standing to enforce historical preservation restrictions.  Thus, non-abutting property owners could not either. (August 21, 2013)

In The Church of Grace and Glory v. Commonwealth of Pennsylvania, Dept. of Transportation, the Commonwealth Court of Pennsylvania held that the Department of Transportation’s condemnation and taking, and notice thereof, was legally sufficient.  In so holding, the court found that a five-year statute of limitations applied to the PennDOT’s condemnation of subsurface coal rights and that the church had legally sufficient notice as of the date when the DOT responded to interrogatories providing a “coal analysis” that identified potential owners of the coal estate. (August 16, 2013)

In Nichols v. State Coastal Zone Industrial Control Board, the Supreme Court of Delaware affirmed the State Coastal Zone Industrial Board’s dismissal of an objector’s appeal of the grant of a Coastal Zone industrial permit application.  In November 2011, a company submitted a written application for a Coastal Zone Act permit to operate a facility that would utilize “Bloom Boxes” to generate electricity in Delaware’s Coastal Zone. The Court found that the objector failed to identify any evidence relating to a legally-protected interest that would be injured by issuance of the permit, and therefore, the objector did not qualify as an “aggrieved person” and lacked standing to challenge the permit. (August 16, 2013)

In Nationstar Mortgage, LLC v. Lark, the Superior Court of Pennsylvania addressed the timing of a claim for defective notice in the context of the Homeowner’s Emergency Mortgage Act.  The plaintiff filed a motion to set aside a sheriff’s sale of her personal residence upon the theory she did not received proper notice by her mortgagee.  In holding that the plaintiff was barred from moving to set aside the sheriff’s sale, the court found that the failure of a mortgagee to comply with the requirements of the Act, thereby trigger a claim for defective notice, must be raised in a legal action before the delivery of a sheriff’s deed in the foreclosure action or delivery of a deed by the mortgagor. (August 13, 2013)

In Nancy Blake v. United States of America, the New York Appellate Division, Second Department addressed the issue of whether a defendant in a real estate action may assert law office failure as a reasonable excuse for not timely filing an answer in defense of a motion for default.  The court held that “law office failure” has been well recognized as a defense against the entry of a default judgment.  Thus, the plaintiff was not entitled to leave to establish a default judgment against defendant for untimely filing its answer. (August 14, 2013)

In Gloria Marshall v. City of Philadelphia and Zoning Board of Adjustment, the Supreme Court of Pennsylvania accepted an appeal on the following question:  “Did the Commonwealth Court plainly misapply the applicable standard of review, given the substantial public importance of, and pressing public need for, the project for which zoning relief was properly awarded (conversion of the property to apartments for low-income seniors), where the court's reversal of the well-supported zoning relief threatens completion of the project due to potential loss of substantial and necessary federal funding?” (August 15, 2013)

In Ten Stary Dom Partnership v. T. Brent Mauro, the Supreme Court of New Jersey addressed defendant’s entitlement to a bulk variance from a frontage zoning requirement. The court held that the defendant satisfied the positive criteria, by proving that the variance presents an opportunity to put the property more in conformity with development plans and advance zoning purposes, and negative criteria, by proving the variance will not result in substantial detriment to the public good or impair the purpose of the zoning plan. (August 5, 2013)

In Norfolk Southern Railway Company v. Intermodal Properties, LLC, the Supreme Court of New Jersey addressed two statutory limitations relating to the eminent domain power vested in public utilities and railroads:  1) the taking cannot be incompatible with the public interest and 2) the railroad may only take property to the extent that the "exigencies of business may demand."  The court held the railroad's taking in order to increase the size of a freight facility met the statutory requirement that the taking be “not incompatible with the public interest.”  Further, the “exigencies of business” language does not necessitate an urgent need for land in order to justify a taking. Rather, it limits a railroad’s power to condemn to those circumstances where the general needs or ordinary course of business require it. The court further held that the property owner may not invoke the prior public use doctrine because the property owner lacks the power to condemn and the use to which it points in neither a prior use not a public one, but is a future plan for a profit-making venture. (August 6, 2013)

In Sass v. Amtrust Bank, the Superior Court of Pennsylvania addressed the scope and application of the federal Financial Institutions Reformation, Recovery, and Enforcement Act (FIRREA) to a state court action where the plaintiff sought a declaratory judgment that her mortgage was void ab initio as a result of the closing agent’s misappropriation of loan proceeds.  The court held that the FIRREA deprived the state trial court of subject matter jurisdiction over the debtor’s declaratory judgment action against its creditor. (August 8, 2013)

In W.A. Wilde Company, Inc. v. Board of Assessors of Holliston, the Appeals Court of Massachusetts addressed whether the Massachusetts statute regarding appeals from assessments of real estate required the Appellate Tax Board to assign the burden of proof to the taxpayer disputing the assessment or to the town's board of assessors. The court noted that the statute places the burden on the assessors if the assessed value is greater than the fair cash value previously determined by the board of assessors within the preceding two years. The court determined that, in the context of the statutory scheme read as a whole, the threshold burden of going forward with the evidence shifts to the local assessors if (a) in the prior two fiscal years, the "owner" filed an appeal for which the board "determined the fair cash value" of said parcel, and (b) the assessed value, contested by the taxpayer, is greater than the fair cash value so determined.  Neither condition was present here. (August 8, 2013)

In Geryville Materials, Inc. v. Planning Commission of Lower Milford Township, Lehigh County, PA, the Commonwealth Court of Pennsylvania reversed a planning commission’s denial of a land owner’s preliminary plan to develop a stone extraction quarry on 84.56 acres of a 628.48-acre property divided by two public roads. The court determined the violated provisions of the zoning ordinance were preempted by the Pennsylvania Noncoal Surface Mining Conservation and Reclamation Act because they related to the quarry’s operation rather than its placement. (July 30, 2013)

In Newman Development Group of Pottstown, LLC v. Genuardi’s Family Market, Inc., the Superior Court of Pennsylvania addressed the appropriate measure of default interest in an anticipatory breach of a commercial lease.  In 2002, Genuardi’s entered into a lease with Newman for a shopping center space that was to be completed in 2005.  Prior to the completion of the space, Genuardi’s informed Newman that it would be terminating the lease.  Newman, in turn, sought prejudgment interest from the date of the termination. While Genuardi’s conceded that it owed prejudgment interest, it contended that interest should run from the date when its performance was actually due. The court held that Genuardi’s refusal to proceed with the contract resulted in a total anticipatory breach of the lease, and interest accrued from the date of refusal. (July 29, 2013)

In TSI East Brunswick, LLC v. Zoning Board of Adjustment of Township of East Brunswick, the Supreme Court of New Jersey held that a relaxed standard of proof applies to the evaluation of the negative criteria in an application for a conditional use variance rather than the more stringent proofs required for a use variance.  In addressing whether a conditional use variance may be issued, the court ruled that the zoning board is to evaluate whether “the site will accommodate the problems associated with the use even though the proposal does not comply with the conditions the ordinance established to address those problems.” (July 23, 2013)

In Drakopoulos v. U.S. Bank National Association, the Supreme Judicial Court of Massachusetts addressed whether a bank that was not the original lender but was holding a residential mortgage through assignment and its servicer were insulated from liability for claims seeking damages and rescission for violations of the Predatory Home Loan Practices Act, the Massachusetts Consumer Protection Act, and the Borrower’s Interest Act.  The court determined that the fact that the bank was the assignee and not the original lender did not shield the bank from liability. The court did conclude, however, that the servicer was not liable for such claims arising from the actions of the original lender, as it was not an assignee. (July 12, 2013)

In Caldwell v. Kriebel Resources Co., the Superior Court of Pennsylvania addressed whether landowners may terminate their oil and gas lease agreement based on the lessee's alleged failure to drill for gas in the Marcellus Shale formation rather than the shallow gas drilling performed by the lessee to date.  The court refused to graft into the Agreement an "implied duty on the lessee to develop various strata, ” holding that Pennsylvania law does not require “a lessee, as a party to an oil and gas lease . . . to drill additional wells to different depths to completely develop the entire property.” (July 12, 2013)

In Patchogue Assoc. v. Sears, Roebuck & Co., the New York Supreme Court, Appellate Division, Second Department, addressed whether a landlord can recover contractual damages sustained after the termination of a lease without a lease provision specifically making the tenant responsible for rent after the landlord-tenant relationship ends. The court held that the absence of such a provision does not preclude a landlord from seeking post-termination contractual damages, after accounting for the landlord’s duty to mitigate such damages. (July 17, 2013)

In Zitney v Appalachian Timber Products, Inc.,  the Superior Court of Pennsylvania held that a contract for the sale of timber on property to be purchased and removed within a 24 month period was considered a contract for sale of goods, not a contract for the sale of land.  As such the contract was not subject to the reporting provisions of 21 P.S. §522 so the fact that this contract was not reported does not make the contract void. (July 3, 2013)

In Borough of Harvey Cedars v. Karan, the Supreme Court of New Jersey addressed the appropriate method for calculating “just compensation” in a partial-takings case. The court held that a property’s fair market value should be used as the benchmark, with any non-speculative, reasonably calculable benefits that increase the property’s value to be considered in determining just compensation.  In so holding, the court emphasized that such benefits should be considered regardless of whether those benefits are enjoyed by others in the community. This determination was a departure from New Jersey’s common law distinction between special and general benefits, which the court found to have outlived its usefulness. (July 8, 2013)

In Grady v. Zoning Board of Appeals of Peabody, the Supreme Judicial Court of Massachusetts addressed whether a properly-granted zoning variance may be deemed to have "taken effect" pursuant to Massachusetts law, where it was not recorded with the registry of deeds within the one-year lapse period set by statute, but was recorded eleven days thereafter, and where the holders have substantially relied upon it. In the circumstances of this case, where the landowner had acted in good faith and substantially relied upon the variance, court concluded that the variance had taken effect, and not lapsed. (July 10, 2013)

In Mid Penn Bank v. Farhart, the Superior Court of Pennsylvania addressed the issue of whether a fraudulent transfer had occurred under the Pennsylvania Uniform Fraudulent Transfer Act (UFTA). The UFTA sets forth eleven factors for a court to consider when determining whether a transfer was fraudulent including whether the "value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred." The court held that the trial court misapplied this factor when it strayed from the reasonable equivalency test and also considered the amount that the debtor paid for the property and that the debtor did not profit from the subsequent sale. (June 25, 2013)

In Koontz v. St. Johns River Water Mgmt. Dist., the United States Supreme Court held that the government’s demand for property from a land-use permit applicant must satisfy the Nollan/Dolan requirement, that is, the government may not condition the approval of a land use permit on the owner’s relinquishment of a portion of his property unless there is a nexus and rough proportionality between the government’s demand and the effects of the proposed land use.  The Court held that this is so even when the government’s demand is for money and even when the government denies the permit. (June 25, 2013)

In Alford v. Thibault, the Appeals Court of Massachusetts addressed whether an individual given a life tenancy in a condominium under a will that granted him unlimited power of sale provided he distribute the net proceeds equally to the remaindermen had a fiduciary duty to refrain from selling the property for a price below its market value. The court held that, in the circumstances of this case, the life tenant with an unfettered power of sale owed no fiduciary duty to the remaindermen with regard to the sale: the requirement in the will that the life tenant make a payment to the remainderman did not hinder the power of sale, but only impacted the distribution of proceeds. (June 27, 2013)

In Township of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., the United States Supreme Court granted certiorari on the following limited issue: 

Are disparate impact claims (i.e., actions that have a discriminatory effect) cognizable under the Fair Housing Act? (June 17, 2013)

In Schmader v. Cranberry Township Board of Supervisors, the Commonwealth Court of Pennsylvania reversed a zoning board’s decision to quash a zoning appeal based on a late filing. The court held that Section 1002-A of the Pennsylvania Municipalities Planning Code cannot be construed to completely eradicate an agency’s obligation to notify a party of the date of the mailing or in some fashion the date the appeal period begins. The due process exception in Section 1002-A requires notice of the date, even if the General Assembly otherwise mandated the mailing date as the start of the appeal period. (June 7, 2013)

In Plainville Asphalt Corp. v. Town of Plainville, the Appeals Court of Massachusetts addressed whether a town bylaw amendment that expanded the reasons for discontinuation of nonconforming uses prohibited the plaintiff corporation from continuing the use of its property as a bituminous concrete operation. The court concluded that the company lost its grandfathered status through disuse when it ceased its non-conforming use from 2003-2009. (June 6, 2013)

In Morgan v. Brennan Title Company, the Supreme Court of Delaware addressed a condominium owner’s appeal from an award of damages arising from a title company’s negligence in performing a title search.  The owner sued his title company and its attorney after the purchaser’s title search revealed an unrecorded ground lease assignment and the contract was terminated.   The court refused to enlarge the damage award, finding that the owner failed to mitigate damages because he did not attempt to rent the property while the matter was pending for four years and he did not relist the property at the original sale price. (May 20, 2013)

In City of Worcester v. College Hill Properties, the Supreme Judicial Court of Massachusetts addressed whether an apartment, occupied by four unrelated adult students, met the definition of "lodging house" under the Lodging House Act. Examining the difference between "lodgings" and apartments in terms of the differing legal interests of a lodger (who holds only a contractual interest) and a tenant (who holds a property interest) in the property he or she occupies, the court concluded that the landlord had not violated the Lodging House Act. (May 15, 2013)

In Ferrick v. Bianchini, the Superior Court of Pennsylvania addressed the validity of a cognovit clause entitling a landlord to confess judgment in the case of default without notice or any opportunity to defend. The court found that cognovit clauses, “perhaps the most powerful and drastic document known to civil law,” are required to be explicit, in writing, and signed by the person to be bound by it. Because all elements were satisfied in the instant case, the appellant exhibited the clear manifestation of consent required to sustain the validity of the cognovit clause. (May 14, 2013)

In Northgate Condominium Association, Inc. v. Borough of Hillsdale Planning Board, the Supreme Court of New Jersey considered whether the lot designations contained in the notice of public hearings on an application for a conditional use approval sufficiently complied with the provisions of the Municipal Land Use Law (MLUL) to confer jurisdiction on the Planning Board, and whether the project design of the internal roadway complied with requirements of the Residential Site Improvement Standards (RSIS). The court held that the developer’s notice of public hearings, although using lot numbers that were not included on the official tax map, did not thereby misidentify the lot to be developed, complied with the provisions of the Municipal Land Use Law, and conferred jurisdiction on the Planning Board. The court noted that Northgate failed to point to anything in the record supporting its claim that the project design of the internal roadway did not comply with density requirements under the Residential Site Improvement Standards. (May 13, 2013)

In 275 Washington Street Corp. v. Hudson River International, LLC, the Supreme Judicial Court of Massachusetts addressed whether an indemnification clause in a lease allowed a landlord to recover before the end of the lease term the present value of lost future rent once the landlord re-lets the property to another tenant for the duration of the lease.  The court determined that a landlord may not sue for indemnification prior to the end of the lease period unless the indemnification clause specifically provides that damages may be recovered earlier. (April 30, 2013)

In Mahwah Realty Associates v. Township of Mahwah, the Superior Court of New Jersey, Appellate Division, addressed whether “additional identification requirements” set forth in the notice provision of the Municipal Land Use Law, apply only to boundary changes which would be effectuated by a proposed zoning ordinance. The court found that the requirements only apply to boundary changes and thus the notice provided by the Township, which included the full text of the proposed ordinance, was sufficient. (April 15, 2013)

In Scion Breckenridge v. ASB Allegiance Real Estate Fund, the Supreme Court of Delaware addressed whether three real estate joint venture agreements could be reformed on the basis of unilateral mistake and known silence by the other party. The court held that reformation of the agreements was warranted and adopted the standard set forth in the Restatement (Second) of Contracts §157. The court further held that the attorneys’ fees and costs awarded based on the contractual fee-shifting provisions of the agreements were improperly awarded and remanded for further consideration. (May 9, 2013)

In Walston v. Deutsche Bank National Trust Co., the Supreme Court of Delaware addressed whether a Motion for Reconsideration of the Superior Court Commissioner’s decision was properly denied, with respect to the court’s discretion to set aside a sheriff’s sale. The court held that the motion was properly denied and that the competing valuations of the property in question were properly considered. (May 9, 2013)

In SFG Venture, LLC v. 34-10 Development, LLC, et al., the New York Supreme Court, Appellate Division, 1st Department, addressed the issue of whether a bank can establish prima facie entitlement to summary judgment by producing the mortgage, note, and guaranty executed by defendants in a mortgage foreclosure action. The court held that bank’s production shows that no material fact exists in this matter. Thus, the bank was entitled to summary judgment. (May 9, 2013)

In Bibbo v. 31-30, LLC, the New York Supreme Court, Appellate Division addressed whether the defendant improperly conveyed a proportional share of development rights in the plaintiffs’ property to an adjoining property. The court held that because the “intent and purpose” of the contract did not include conveyance of any development rights together with the property, the defendant could not be required to execute an instrument or take any other action to convey such rights to the plaintiff. (April 16, 2013)

In Northampton Area School District, Metrotek Electrical Services, Co. v. Zoning Hearing Board, the Commonwealth Court of Pennsylvania addressed a school district’s desire to construct a solar energy field on its property as an “accessory use” for its principal purpose. The court determined that the Zoning Hearing Board (and common pleas court) unnecessarily considered argument on whether the solar array was “customarily incidental” to the school when the plain reading of the Zoning Ordinance expressly permitted solar energy units as “accessory uses” in every Zoning District. (April 9, 2013)

In DeWolfe v. Hingham Centre, Ltd., the Supreme Judicial Court of Massachusetts addressed whether a real estate broker was liable for negligent misrepresentation for advertising a property as zoned for business that was in fact zoned residential, and whether a contract provision “that the BUYER has not been influenced to enter into this transaction nor has he relied upon any warranties or representations not set forth or incorporated in this agreement or previously made in writing” protected the broker from liability.  The court concluded that these facts could support a claim for negligent misrepresentation if the broker had failed to exercise reasonable care in making representations to prospective buyers.  The court further concluded that the contract provision did not protect the broker, because its plain text indicated that the buyer was in fact entitled to rely on the written advertisement. (April 11, 2013)

In E & J Properties v. Medas, the Supreme Judicial Court of Massachusetts determined whether a variance granted by the zoning board permitting a building to be demolished and the land subdivided into 20 lots required any condition that the work be completed in a reasonable time.  The court held that, where the zoning board had not expressly imposed a time condition in granting the variance, it was not unreasonable to conclude that there was no time condition. (March 19, 2013)

In Mahajan v. Department of Environmental Protection, the Supreme Judicial Court of Massachusetts determined whether land on Long Wharf in Boston taken by the Boston Redevelopment Authority (BRA) as part of an urban renewal plan was taken for the purpose of creating parkland, which would subject it to the requirements of Article 97 of the Amendments to the Massachusetts Constitution, which provides that parkland may not be disposed of or used for other purposes except by a two-thirds vote of the legislature.  The court determined that, given the overarching purpose of the urban renewal plan, the retention of certain open spaces did not give rise to Article 97 protections. (March 15, 2013)

In Northwest Wissahickon Conservancy, Inc. v. Philadelphia City Planning Commission, the Commonwealth Court of Pennsylvania addressed whether approvals of real estate development plans by the City of Philadelphia Planning Commission were appealable “adjudications” under the Local Agency Law, 2 Pa. C.S. § 752.  The court held that because the Planning Commission’s approvals were not “final order[s], decree[s], decision[s], determination[s] or ruling[s],” but were instead merely “recommendations” requiring approval by the city council, they were not appealable adjudications under the Local Agency Law. (March 5, 2013)

In 612 Associates, L.L.C. v. North Bergen Municipal Utilities Authority, the Supreme Court of New Jersey addressed whether a sewage authority that treats sewage through a direct or indirect connection could charge a connection fee that was statutorily authorized for entities that owned and operated the sewer lines.  The court held that it was consistent with the language of N.J.S.A. 40:14A-8 and N.J.S.A. 40:14B-22 for each sewage authority that handles and treats sewage, whether through a direct or indirect connection, to charge a non-duplicative connection fee that proportionately reflects the use of its system and contributes towards the system’s cost. (March 7, 2013)

In Mauri v. Zoning Board of Appeals of Newton, the Appeals Court of Massachusetts addressed whether the longstanding rule that considers adjoining undersized lots held in common ownership as one lot for zoning purposes, where a local zoning ordinance had been interpreted to provide protection from such merger.  The court acknowledged that a city would be free to create a grandfather provision that protects non-conforming adjacent lots from merger; the plain language of the local zoning ordinance exempting certain lots from merger did not clearly apply to a lot that contained a garage rather than a dwelling. (February 22, 2013)

In Bradley v. Zoning Hearing Board, the Commonwealth Court of Pennsylvania addressed the definition of a “person aggrieved” who has standing to appeal a zoning board’s decision.  The court found that the complaining party did not own property near the property at issue and he therefore lacked standing.  The court rejected the argument that he had standing due to his ownership interest in a corporation that owned land near the parcel which was granted the variance. (February 25, 2013)

In Latson v. Plaza Home Mortgage, the United States Court of Appeals for the First Circuit addressed whether a couple who bought a three-family home in March 2006 financed entirely by two mortgages could bring suit against the mortgage lender under the Massachusetts Consumer Protection Statute and under a theory of breach of the covenant of good faith and fair dealing.  The court held that the homeowners had no remedy: the breach of the covenant of good faith and fair dealing could not be based on conduct that preceded the entry into the contract, and the four-year statute of limitations for the Massachusetts Consumer Protection Statute had passed. (February 27, 2013)

In White v. Hartigan, the Supreme Judicial Court of Massachusetts addressed the rights of neighbors in a strip of beach on Martha’s Vineyard, and whether one neighbor’s fractional interest in the beach shifts upland with the northerly migration of the beach due to erosion, or is limited to the portion of former beach now submerged in the ocean. The court noted that although a littoral property contains a moveable shoreline boundary, its other boundaries ordinarily are fixed.  As the beach had eroded past the landward boundary in the deed that gave rise to the title interest in the beach, the neighbor asserting a fractional interest in the beach had no interest in the beach in its current location. (February 8, 2013)

In Interstate Outdoor Advertising v. Zoning Board of the Township of Mount Laurel, the United States Court of Appeals for the Third Circuit upheld a zoning ordinance that barred nine billboards from sites along Interstate 295 in the township. The advertising company had argued the ban violated its right to commercial speech. The court, which upheld a lower court decision in the municipality’s favor, said the zoning ordinance reflected reasonable concerns over the township’s aesthetics and traffic safety. (February 11, 2013)

In CoActiv Capital Partners Inc. v. Englewood Housing Authority, the New Jersey Superior Court, Appellate Division, addressed an appeal involving a complaint seeking to recover damages arising out of defendant's alleged breach of a leasing agreement. The court held that the agreement, which was signed by EHA’s executive without notice to its governing body, was void because it is subject to the Local Public Contracts Law and does not fall within an exception to the public bidding requirement.  The court held that the plaintiff was not an innocent party who fell victim to the fraud of a third party, and defendant could invoke the Local Public Contracts Law notwithstanding its having made payments under the lease agreement. (February 13, 2013)

In Graziano v. Riley, the Appeals Court of Massachusetts addressed whether a 40-year-old stone and earthen berm that blocked the path of a deeded drainage easement had to be removed under a theory of nuisance (the deeded easement having been extinguished after 20 years). At the time of the construction of the berm, Massachusetts followed the “common enemy” approach to surface water problems, which permitted an owner to grade land for a lawful purpose even if the result diverted surface water onto a neighbor’s land, and the berm would not have constituted a common-law nuisance. Although Massachusetts adopted a “reasonable use” standard in 1978 for future applications, the adoption was reserved for prospective application. As a result, the court concluded that the berm need not be removed. (February 14, 2013)

In Hunt v. Zoning Hearing Board of Conewago Township, the Commonwealth Court of Pennsylvania addressed the validity of a zoning ordinance that prohibits the development of landlocked property.  Finding the ordinance confiscatory because it applies to all principal uses, the court granted validity variances to property owners lacking frontage on a public roadway.  The court further determined that property with legal access to a roadway, such as an easement, should not be deemed landlocked under the ordinance. (February 1, 2013)

In Borough of Merchantville v. Malik & Son, LLC, the Superior Court of New Jersey, Appellate Division, addressed whether a borough had a duty to engage in bona fide negotiations with a lien holder of a property subject to condemnation.  The court held that a condemning authority satisfies its obligation by engaging in negotiations with the property owner, and is not obligated under N.J.S.A. 20:3-6 to negotiate with the assignee of a mortgage which has obtained a final judgment of foreclosure on the property. (February 5, 2013)

In Sherzer v. Homestar Mortgage Services, the United States Court of Appeals for the Third Circuit addressed whether the Truth in Lending Act, 15 U.S.C. § 1635(f), which provides that an obligor’s right to rescind a loan expires three years after the date of consummation of the transaction, or upon sale of the property, whichever occurs first, requires the filing of a lawsuit within the three-year period.  The court held that the statutory language only requires an obligor to send valid written notice of rescission before the expiration of the three-year period. (February 5, 2013)

In DeGiorgis v. 3G’s Contracting Inc., the Superior Court of Pennsylvania addressed whether a claimant’s attempt to obtain relief under the sheriff’s interpleader procedure set forth in Pa.R.C.P. 3201-16 was improper.  The claimant alleged that he was the sole owner of a promissory note and mortgage that was claimed to be the property of another person in a mortgage foreclosure action.  The court found that the relief sought by the claimant was outside the scope of the sheriff interpleader procedure outlined in Rule 3201-16 because an interest in a mortgage and note is not “tangible personal property.” (February 7, 2013)

In City of Reading v. Zeiber, the Commonwealth Court of Pennsylvania considered the required statutory notice of a sheriff’s sale was proper when the sheriff failed to give proper notice of the sale, which was postponed as a result of flooding.  The court held that having satisfied the statutory notice requirements prior to the original date, the city was not required to do so again prior to the postponement date.  However, the court held that when it is necessary to continue a sheriff’s sale, the public announcement of the continuation must include the new date of sale, which was not done. (January 29, 2013)

In Duffy v. Zoning Hearing Board of Upper Chichester Twp., the Commonwealth Court of Pennsylvania addressed the issue of use of property for a recycling facility.  The court held that under the local ordinance, the use of the property for a recycling facility does not require a “conditional use” exception, but rather, is permitted by right.  This matter is specific to the town ordinances of Upper Chichester Township. (January 30, 2013)

In Glatfelter Pulpwood Co. v. Commonwealth of Pennsylvania, the Supreme Court of Pennsylvania held that gains from the sale of a tract of timberland in Delaware were properly characterized as “business income” subject to taxation in Pennsylvania because: (1) the sale constituted an integral part of the company’s regular business operations; and (2) the company’s Delaware business was integrally related to its business activities in Pennsylvania. The court also held that neither the Due Process Clause nor the Commerce Clause was violated despite the fact that there was double taxation, because the total income from the sale was apportioned in Pennsylvania. (January 22, 2013)

In Macys v. Board of Property Assessment, the Commonwealth Court of Pennsylvania held that, when a tax assessment is appealed, fixing the fair market value of the real property on the date of the appeal is proper. The court also held that if the Board deviates from an assessment provided by uncontradicted expert testimony in a case, it must provide the reasons for not following the expert. (January 22, 2013)

In CMR D.N. Corporation and Marina Towers LTD v. The City of Philadelphia., the United States Court of Appeals for the Third Circuit concluded that the City of Philadelphia’s decision to remove a height restriction mooted the plaintiffs’ constitutional claims, and as a result, granted summary judgment in favor of the City of Philadelphia.  The court further held that a plaintiff challenging a zoning ordinance, under a theory that the enactment of the law harmed the plaintiff, cannot recover compensatory or nominal damages unless the plaintiff was actually denied a permit under the offending statute.   Additionally, the court concluded that the trial court did not abuse its discretion in denying the plaintiff’s motion to amend the complaint since the plaintiff was unable to explain its delay in seeking to amend the complaint. (January 14, 2013)

In Todaro v. Real Estate Recovery Fund, the Commonwealth Court of Pennsylvania addressed whether the purchaser of real estate could recover from the Real Estate Recovery Fund for damages resulting from fraudulent conduct by the seller. The court held that, because the purchaser had not obtained a final judgment against the seller, the action against the Fund was premature. (January 4, 2013)

In Duquesne Light Co. v. Longue Vue Club, the Superior Court of Pennsylvania addressed whether the trial court erred in granting Duquesne a preliminary injunction preventing a property owner from interfering with its attempt to upgrade an electrical transmission system which passed through the owner's property.  The court concluded that the power company established the potential for irreparable harm because it provided evidence that the system would overload and cause power outages, demonstrated that a preliminary injunction was necessary to maintain the status quo (whereby the property owner had previously allowed the power company access to its system by entering the property owner’s property), and established that it was likely to prevail on its argument that the easement agreements included right-of-way access and did not limit the height or type of electrical pole erected. (January 15, 2013)

In Friends of Pennsylvania Leadership Charter School v. Chester County Board of Assessment Appeals, the Commonwealth Court of Pennsylvania addressed whether an exemption from real estate taxes for entities that lease property to charter and cyber charter schools applied retroactively.  The court held that once the obligation to pay real estate taxes on a property had accrued, the government had a vested right in the tax monies.  Accordingly, the retroactive application of the real estate tax exemption for entities that lease property to charter and cyber charter schools violated Article I, Section 11 of the Pennsylvania Constitution. (January 16, 2013)

In Zoning Board of Appeals of Sunderland v. Sugarbush Meadow, LLC, the Supreme Judicial Court of Massachusetts addressed whether the Massachusetts comprehensive permit act (sometimes referred to as the anti-snob zoning act) permits consideration of only government-subsidized rental units or should include also low-cost, unsubsidized, market-rate rental units, in assessing whether there is sufficient low-income housing in a town.  The court concluded that only government-subsidized units should be counted, as market-rate rental units could be the product of a depressed market or could reflect student housing, neither of which could be relied upon to house low-income families. (January 14, 2013)

In Watts Residential Associates v. The Board of Supervisors of Watts Township, the Commonwealth Court of Pennsylvania held that approval of a developer’s subdivision plan was properly conditioned on completion of a connecting road into a separate subdivision in order to comply with the township’s development ordinance against dead-end streets. The court rejected the developer’s contention that the mere intent of the third-party to connect the street was sufficient to warrant approval of the plan. (January 8, 2013)

In Zoning Board of Appeals of Lunenburg v. Housing Appeals Committee, the Supreme Judicial Court of Massachusetts addressed whether the determination of whether there is sufficient affordable housing under the Comprehensive Permit Act should include only government-subsidized housing or also include low-cost, unsubsidized, market-rate housing. The court determined that only government-subsidized housing should be counted for two reasons: 1) the plain text of the act so ordered and, 2) the purpose of the act to provide safe, decent housing could not be effectuated by counting low-cost, market-rate housing, because market-rate housing may be affordable only because it is neither decent nor safe. (January 8, 2013)

In Buccaneer Development, Inc. v. Zoning Board of Appeals of Lenox, the Appeals Court of Massachusetts addressed whether the Housing Court had subject matter jurisdiction over an appeal from a denial of a permit application for a retirement community.  The court concluded that, in establishing a permit session in the Land Court, the Legislature clearly gave original jurisdiction over permit-based zoning appeals to the Land Court and the Superior Court, not to the Housing Court. (December 28, 2012)

In Deutsche Bank National Trust Company v. Russo, the Superior Court of New Jersey, Appellate Division, considered whether the plaintiff’s lack of standing at the time of filing a mortgage foreclosure complaint constitutes a meritorious defense under R. 4:50-1 to a judgment of foreclosure. The court held that, because of the defendant’s delay in asserting the plaintiff’s lack of standing, the dismissal of the complaint was not appropriate. The court explained that standing is not a jurisdictional issue in New Jersey state court and, therefore, a foreclosure judgment obtained by a party that lacked standing is not “void” within the meaning of R. 4:50-1(d). (November 14, 2012)

In Salahuddin v. Zoning Hearing Board of West Chester, the Commonwealth Court of Pennsylvania addressed the issue of abandonment of a nonconforming use. The court held that abandonment of a nonconforming use requires: (1) intent to abandon and (2) actual abandonment. According to the court, a lack of occupancy of the nonconforming use for the prescribed period of time in a municipality with a discontinuation ordinance creates a presumption of abandonment which is rebuttable only with evidence of intent contrary to abandonment. (November 14, 2012)

In Hoagland v. City of Long Branch, the Superior Court of New Jersey, Appellate Division, addressed whether the mere filing of a condemnation action by a municipality constituted a “temporary taking” of property. The court held that, pursuant to the Eminent Domain Act, a taking had not occurred because the municipality had never filed a “declaration of taking” and the property owner could not factually demonstrate a taking under general constitutional principles. (October 16, 2012)

In Pacific Employers Insurance Company v. Global Reinsurance Corporation of America, the United States Court of Appeals for the Third Circuit analyzed the following sentence in a certificate of reinsurance that Pacific Employers Insurance Company (PEIC) purchased from Constitution Reinsurance Corporation, the predecessor of Global Reinsurance Corporation of America: “As a condition precedent, the Company shall promptly provide the Reinsurer with a definitive statement of loss on any claim or occurrence reported to the Company and brought under this Certificate which involves a death, serious injury or lawsuit.”  The court interpreted this sentence to mean that PEIC must provide Global with a definitive statement of loss on a subset of claims or occurrences, specifically those that involve a death, serious injury, or lawsuit, promptly after someone reports such a claim or occurrence to it.  Further, PEIC’s compliance with this provision is a condition precedent to Global’s duty to reinsure, and not merely its duty to make such payments promptly. (September 7, 2012)

In Martin v. Simmons Properties, LLC, the Appeals Court of Massachusetts addressed whether a right of way must be maintained in its original width, or whether the servient owner may encroach into the easement if the encroachments do not unreasonably interfere with the use of the easement for its intended purpose. The court held that reservation of the easement is absolute, and the easement must be maintained for its full width without consideration of whether the easement holder could “go around” the encroaching structure. (September 11, 2012)

In Zuk v. Zuk, the Superior Court of Pennsylvania addressed the requirements of the Statute of Frauds for the sale of real property.  The court held that a letter satisfied the Statute of Frauds because it adequately described the property, recited the amount to be paid, and was signed by the prospective buyer.  The court alternatively held that the buyer’s possession of the property, partial payment for the land, and improvement of the land met the partial performance exception to the Statute of Frauds. (September 5, 2012)

In White  v. Conestoga Title Insurance Co, the Supreme Court of Pennsylvania addressed whether claims against an insurance company for money had and received and for unjust enrichment may be brought as common law claims.  Here, plaintiff alleged the insurance company charged rates in excess of what was permitted under the Title Insurance Act (TIA). The court held that because the TIA provides a statutory remedy, the procedure described must be pursued to the exclusion of other claims. (August 20, 2012)

In In re Appeal of Costco, the Commonwealth Court of Pennsylvania addressed whether a wholesale club could install a gas station adjacent to its retail store. The court determined that since the zoning ordinance specifically allowed indoor retail facilities, outdoor retail facilities such as a gas station were not permitted. Because gas stations were not permitted as of right, they could not be permitted as an accessory use. (July 31, 2012)

In Garrity v. Conservation Commission of Hingham, the Supreme Judicial Court of Massachusetts addressed whether the 21-day deadline for issuing a decision on a requested order of conditions under the Wetlands Protection Act can be waived. The court concluded that an applicant may waive the deadline if the waiver is voluntary, the duration of the extension is defined and reasonable in length, and notice of the waiver's duration is a matter of public record. (July 16, 2012)

In Leahy v. Graveline, the Appeals Court of Massachusetts addressed whether owners of non-waterfront lots in a subdivision have an implied easement allowing them to use the beach adjoining a waterfront property. The Court determined that the original subdivision plans anticipated beach access for all properties in the subdivision, and that that implied easement had not been abandoned or extinguished. (July 12, 2012)

In Taylor v. Beaudry, the Appeals Court of Massachusetts addressed whether a judge properly determined the date a tenant vacated the premises for purposes of calculating damages for failure to return a security deposit. The Court held that a prior small claims matter for unpaid rent had collateral estoppel effect and that the judge was bound by the earlier finding. (July 9, 2012)

In Denver Street LLC v. Town of Saugus, the Supreme Judicial Court of Massachusetts considered whether a monetary charge imposed on developers for access to a town sewer system was a permissible fee or an impermissible tax. Because the developer received a benefit not shared by society at large, and because the charge compensated the town for expenses rather than raising revenue, the payment was a permissible fee. (June 29, 2012)

In Berwick Area Landlord Association v. Borough of Berwick, the Commonwealth Court of Pennsylvania addressed whether, under the doctrine of conflict preemption, a local landlord registration ordinance, which provides that rental units must be licensed, maintained and registered, imposed liability on landlords in conflict with the Landlord Tenant Act. The court held that, because the ordinance  expressly disclaimed “impos[ition] [of] any additional civil/criminal liability upon owners than that which is imposed by existing law,” the ordinance was not preempted. (June 27, 2012)

In Pocono Summit Reality, LLC v. Ahmad Amer LLC, the Superior Court of Pennsylvania addressed whether a restrictive covenant encumbering subdivided real property, which prohibits the operation of a grocery store, prohibited an owner from using its property as a parking lot and storm water control for a grocery store situated on an adjoining lot. The court found that a strict yet "common sense" reading of the clause prohibiting the "operation of a . . . grocery store" contemplates parking and other utilities necessary to a grocery store's lawful operation. (June 22, 2012)

In City of Philadelphia v. Urban Market Development, Inc.,  the Commonwealth Court of Pennsylvania addressed a property owner’s challenge to the demolition of a building pursuant to the Philadelphia Property Maintenance Code. Rejecting the challenge, the court held that adequate notice was given to the owner that, unless repairs were made, the city would eliminate the unsafe condition by demolition. (June 22, 2012)

In Eaton v. Federal National Mortgage Association, the Supreme Judicial Court of Massachusetts addressed the propriety of a foreclosure by sale by a mortgage holder who did not hold the underlying note. The court concluded that, prospectively, a foreclosure by sale may be made only by holders of both the mortgage and the note. (June 22, 2012)

In Cater v. Bednarek, the Supreme Judicial Court of Massachusetts addressed the problem of an unspecified easement over a parcel that had since been subdivided and built on. The court concluded that the owner of the dominant estate's silence about the easement during the subdivision process did not extinguish the easement by estoppel, and that the easement remained valid. (June 15, 2012)

In Mazdabrook Commons Homeowners’ Association v. Khan, the New Jersey Supreme Court decided the constitutionality of a homeowners’ association’s policy which prohibited the placement of all signs in units aside from “For Sale” signs. The unit owner in question was running for town council and had placed two candidacy signs on his property. The association requested that he remove the signs pursuant to the policy prohibiting all signs. In considering the constitutionality of the association’s rule, the court analyzed (1) the nature, purpose and use of the property; (2) the extent and nature of the public’s invitation to use that property; and (3) the purpose of the expressional activity in relation to the property’s public/private use. Finding these factors to weigh in favor of the defendant’s right to free speech and finding little to no interference with the property, the Supreme Court held that the association’s overly restrictive policy violated the free speech clause of New Jersey’s constitution. (June 13, 2012)

In MetroClub Condominium Assoc. v. 201-59 N. Eighth Street Assoc., L.P., the Superior Court of Pennsylvania addressed whether there was a conflict between the declaration of condominium and the Pennsylvania Uniform Condominium Act, which prohibited a declarant from controlling a limited common element of the condominium after the declarant ceased control of the condominium’s executive board. The court determined that while the declaration of condominium does not constitute a contract, it was appropriate to apply the theories of contract law in interpreting the document. The court proceeded to apply the theories of contract law and statutory interpretation principles to determine that the Pennsylvania Uniform Condominium Act did not preclude the declarant from controlling a limited common element after it ceased control of the executive board when such control was specifically permitted by declaration of condominium. (June 12, 2012)

In Richardson v. Board of Appeals of Chilmark, the Appeals Court of Massachusetts considered the priority of a challenge to a building permit issued in violation of a zoning by-law. The court concluded that the appeal period to challenge the permit had passed because the homeowner had constructive notice of the permit when it was first issued. (June 11, 2012)

In Plamondon v. Outcepts Management & Consulting, LLC, the Appeals Court of Massachusetts addressed what constitutes an area of business character for purposes of erecting a billboard. The court determined that an area must contain two separate businesses and also not be predominantly residential when viewed from the highway that the billboard is intended to face. (June 11, 2012)

In River Park House Owners Ass’n v. W. Crumley, the Commonwealth Court of Pennsylvania addressed whether cable television can be considered a “common expense” within the meaning of the Pennsylvania Uniform Condominium Act, 68 Pa. C.S. §§3101-3414 (the “Act”), and the condominium homeowners’ Association’s by-laws.  A unit owner refused to pay the added assessment for cable television when the Association’s executive committee signed a new contract that required all units to carry cable. The court held that, although the Act’s definition of common expenses did not preclude the Association from entering into a bulk-fee contract for cable television, the Association’s by-laws gave a more narrow definition for which cable television was not deemed to be a common expense. (June 7, 2012)

In G.W. Horton v. Washington County Tax Claim Bureau, the Commonwealth Court of Pennsylvania addressed whether a county Tax Claim Bureau (Bureau) failed to satisfy the notice requirements of section 602(e)(2) of the Real Estate Tax Sale Law. The court held that the Bureau failed to provide proof of mailing of notices sent and granted the plaintiffs’ Petition to Open/Set Aside the Upset Tax Sale. (May 21, 2012)

In One Pie Investments LLC v. Toni Jackson, the Supreme Court of Delaware held that an act of redemption pursuant to Wilmington Code 4-148 for property sold at a Sheriff’s sale was proper when the amount owed plus a 20% fine was paid to the sheriff rather than to the purchaser directly. Because the purchaser received its winning bid back plus a 20% premium, the Court found that the purchaser was made whole and that the property was redeemed by its original owner. (April 24, 2012)

In Borough of Harvey Cedars v. Harvey Karan, the Superior Court of New Jersey, Appellate Division considered whether the construction of a dune, which significantly blocked a landowner’s beachfront view but provided extra storm protection, provided a special benefit or a general benefit in a condemnation action. The Appellate Division held that this was a classic example of a general benefit which could not be used to offset compensation owed to the landowner for any decrease in their property’s value. (April 4, 2012)

In Investors Savings Bank v. Keybank National Association, the Superior Court of New Jersey – Appellate Division recently issued a decision regarding the doctrine of equitable subrogation of mortgages. Specifically, the court addressed whether the holder of a mortgage used to discharge a prior mortgage is equitably subrogated to the rights of the prior mortgagee, thus taking priority over the lien of a judgment creditor that recorded its judgment before the new mortgage was placed on the property. The Appellate Division concluded and held that such a refinancing mortgagee is ordinarily entitled to the same priority as the original mortgagee, even though it negligently failed to discover the lien of the intervening judgment creditor prior to closing. (March 12, 2012)

In American Dream at Marlboro, L.L.C. v. The Planning Board of the Township of Marlboro, the Supreme Court of New Jersey outlined the appropriate mechanism and quantum of proofs needed for the removal of a deed restriction based on changed circumstances. Under New Jersey law, a deed restriction is eliminated due to changed circumstances where its purpose can no longer be accomplished.  The court held that, in making such a determination, a trial court may consider 1) alternate reasons for the imposition of a deed restriction that it finds applicable; and 2) an argument that the allegedly changed circumstances are due to a party’s own unclean hands. (February 16, 2012)

In Shipley Fuels Marketing, LLC v. Medrow, the Superior Court of Pennsylvania addressed the priority of a lien based on a confession of judgment relating to an interest in real property. The court held that, because the confession of judgment had not been indexed properly prior to the transfer of title, the lien could not be entered against the property. (February 13, 2012)

In Re: Appeal of Sullivan from the Decision of the Board of Assessment Appeals of Delaware County, the Commonwealth Court of Pennsylvania addressed whether the common level ratio (CLR), established by the State Tax Equalization Board (STEB), multiplied by the fair market value is the proper assessment tool to determine property tax rather than a ratio of assessment of similar properties of the same nature in their neighborhood. The court determined there was insufficient evidence to show lack of uniformity in the property assessment “having like characteristics and qualities in the same area” where the trial court determined there was no county wide analysis presented nor sufficient evidence to show willful discrimination.  The court held that the property’s assessment should conform to the CLR prevailing in the tax district. (January 11, 2012)

In Hawk v. City of Pittsburgh Zoning Board of Adjustment, the Commonwealth Court of Pennsylvania upheld the denial of a variance from setback requirements sought after the applicant renovated two, multi-unit residential buildings. The court held that the Board’s findings were supported by substantial evidence and it did not abuse its discretion by refusing to grant a de minimis variance. (January 5, 2012)

In Salt & Light Company, Inc. v. Helmer, the Superior Court of New Jersey, Appellate Division addressed the applicability of the “special reasons” requirement of New Jersey’s Use Variance statute (N.J.S.A. 40:55D-70(d)).  In denying the plaintiff’s application for a use variance to build a duplex in an area zoned for single family homes, the court held that even where a plaintiff has an “inherently beneficial” reason for seeking a variance, it must still satisfy the “negative criteria” for the grant of a use variance.   To make this determination, the court conducted a balancing test by (1) identifying the public interest at stake; (2) identifying the detrimental effect that would ensue from the grant of a use variance; and (3) weighing the positive and negative criteria and determined whether on balance, the grant of the variance would cause a substantial detriment to the good. (December 19, 2011)

In R&J Holding Co. v. Redevelopment Authority of County of Montgomery, the United States Court of Appeals for the Third Circuit addressed whether a property-owner’s claim  for “just compensation” was barred by the doctrine of claim preclusion after the property-owner unsuccessfully attempted to obtain inverse-condemnation under the Eminent Domain Code in a state court action.  In the state court action, the property-owner had invoked its right under Supreme Court precedent to reserve its federal claims for federal court. The court refused to find the claim precluded because the Authority raised no objections to the splitting of the state and federal claims in the state court action. (December 9, 2011)

In Michael Singer v. Philadelphia Zoning Board, the Commonwealth Court of Pennsylvania addressed the requirements for a dimensional variance relating to a mixed-use building on Walnut Street in Philadelphia.  The court held that a dimensional variance was not appropriate because the applicant did not meet its burden of demonstrating that a hardship unique to the property prevented the reasonable use of the property in conformance with the ordinance.  The court held that an applicant must demonstrate something more than a mere desire to develop a property as it wishes or that it will be financially burdened if the variance is not granted. (September 30, 2011)

In Indian Rocks Property Owners Association, Inc. of Ledgedale v. Glatfelter, the Supreme Court of Pennsylvania addressed whether the Pennsylvania Construction Code Act (“the Act”) preempts a homeowners’ association from precluding the building of a certain type of structure.  The court found that such a reading of the Act was too broad, and held that a homeowners’ association is not preempted from refusing a structure for subjective reasons, such as harmony with other structures. (September 29, 2011)

In Butler v. Charles Powers Estate, the Pennsylvania Superior Court considered a chain of title to ownership of a land parcel and the Marcellus shale gas found under the land. The Court reversed the trial court’s decision that the language in the deed reserving the rights to “minerals” found under the land did not apply to the Marcellus shale gas.  The Court remanded for expert testimony on the issue of whether Marcellus shale constitutes a type of mineral such that the gas in it falls within the deed’s “minerals” reservation. (September 7, 2011)

In National City Mortgage Company v. Brian and Elaine Stephen, the United States Court of Appeals for the Third Circuit addressed whether a federal court retained jurisdiction in a mortgage foreclosure action when an issue arose with the marshall's sale of a property following entry of a default judgment. The court held that the district court should have retained jurisdiction when the mortgage company attempted to set aside its own marshall's sale when it failed to give proper notice of the pending sale to a junior lien holder. Even though the issue concerned state law, the district court had a duty to retain jurisdiction to address all issues relating to the case, including the marshall's sale. (July 22, 2011)

In Simmsparris v. Countrywide Financial Corp. the United States Court of Appeals for the Third Circuit addressed the procedural requirements of the Fair Credit Reporting Act relating to claims for false information supplied to credit rating companies. The court held that a consumer must first alert the credit reporting agency of the alleged misinformation, that has been reported, the credit agency must then notify the entity that furnished the alleged misinformation and the entity must then fail to undertake a reasonable investigation before liability can attach. (July 28, 2011)

In Wagner v. Landisville Camp Meeting Assn., the Superior Court of Pennsylvania addressed the interpretation of a residential deed. Plaintiffs argued that they held title to property purchased within the Landisville Camp Meeting Association in fee simple absolute while the Association maintained that the deeds were conveyed subject to the condition that plaintiffs' abide by the Association's by-laws, and that a failure to do so permitted the Association to retake control of the property. The court held that the deeds were unambiguous and clearly imposed this condition upon the plaintiffs' ownership of the property and the Association retained an ownership interest in the plaintiffs' property. (June 1, 2011)

In Prime Accounting Dept. v. Township of Carney's Point, the New Jersey Superior Court considered what determines timely filing under N.J.S.A. 54:3-21 so as to confer jurisdiction upon the Tax Court to review assessments on real property. The Court held that the statutory time periods for filing a complaint are jurisdictional and must be adhered to strictly, and that the Tax Court does not have discretion to relax the time requirements. Moreover, the statute mandates that a complaint challenging a tax assessment must be filed in the name of true party in interest, without exception. (May 9, 2011)

In Financial Freedom, SFC v. Cooper, the Pennsylvania Superior Court considered a petition to intervene in a mortgage foreclosure action brought by an individual who subsequently purchased the subject property at a tax sale. The Court held that (1) a petition to intervene must be filed during the pendency of an action; (2) once a foreclosure has commenced, any person who subsequently acquires an interest in the property need not be joined in the foreclosure action because the commencement of the action put the buyer on constructive notice; and (3) the holding in Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983), that a mortgagee must receive actual notice of a foreclosure sale does not apply to buyers who purchase the property at a tax sale and are not mortgagees. (May 9, 2011)

In Home Savings and Loan Co. of Youngstown v. Irongate Ventures, LLC, the Superior Court of Pennsylvania addressed the applicability of the Deficiency Judgment Act (42 Pa.C.S.A. § 8103) in the context of foreclosure actions. The court held that the Act required a petition to fix fair market value to be filed as a supplementary proceeding when the real property was sold to the judgment creditor in execution proceedings. (April 11, 2011) 

In Jennings v. Borough of Highlands, et al., the Superior Court of New Jersey, Appellate Division, addressed whether individual condominium unit owners may oppose zoning amendments through a protest petition. The court held that individual condominium unit owners do not enjoy the same measure of protest participation afforded other land owners, and a petition containing the signatures of unit owners does not make the proposed zoning amendment subject to an enhanced voting threshold. (March 14, 2011)

In Showalter v. Pantaleo, the Superior Court of Pennsylvania discussed whether the trial court erred in finding that the plaintiffs could not prove the continuity element of their adverse possession claim because the landowner filed for bankruptcy before the expiration of the 21 year period of occupancy. Affirming the trial court's decision, the Superior Court held that the plaintiffs could not establish that they possessed the subject property for 21 continuous years because, when the landowner filed for bankruptcy and the subject property became a part of the bankruptcy estate, their possession was interrupted. (November 18, 2010)

In Wells Fargo Bank v. Lupori, the Superior Court of Pennsylvania addressed whether a petition to strike a default judgment should be granted and a sheriff's sale set aside in a case where the bank's complaint failed to allege that the bank was the owner of the subject mortgage or that there was a pending assignment of the mortgage. The court held that the petition should be granted because the complaint was facially deficient as it did not establish that the bank was a real party in interest with standing to prosecute the foreclosure action. (November 12, 2010)

In In the Matter of: Opening of a Private Road for the Benefit of Timothy P. O'Reilly, the Supreme Court of Pennsylvania addressed whether the Pennsylvania Private Road Act effects an unconstitutional taking of private property. The Act allows the owner of a landlocked property who desires a private road leading to a public thoroughfare to petition for a panel review of the necessity and feasibility of the construction of such a road. The appellee here filed a petition under the Act to open a private road, which was opposed by the property owners on whose land the road would be built. The property owners argued that the Act facilitates an unconstitutional taking of private property for a private purpose in violation of the Fifth Amendment. The trial court overruled these objections, citing a history of case law in which the Act was found to be constitutional. A divided Commonwealth Court affirmed, finding, sua sponte, that all land in Pennsylvania is subject to an incorporeal burden. The Supreme Court rejected the reasoning of both courts, and, suggesting that the opening of a private road for a private purpose may be an unconstitutional taking, remanded to the trial court for further review of the property owner's objections. (September 30, 2010)

In Anderson v. Wachovia Mortgage Corporation, the United States Court of Appeals for the Third Circuit identified, as a matter of first impression, the elements of a prima facie case of lending discrimination under § 1981. At the outset, the court held that the direct evidence test and burden-shifting framework regularly applicable to employment discrimination claims also apply to lending discrimination claims. The court then held that, under the burden-shifting analysis, a plaintiff must show that: 1) he belongs to a protected class; 2) he applied and was qualified for credit that was available from the defendant; 3) his application was denied or that its approval was made subject to unreasonable or overly burdensome conditions; and 4) some additional evidence exists that establishes a causal nexus between the harm suffered and the plaintiff's membership in a protected class. (September 13, 2010)

In US Bank, N.A. v. Nikia Hough, Et Al., the Superior Court of New Jersey, Appellate Division, addressed the question of whether a commercial lender, who makes a loan secured by a mortgage on an affordable housing unit in excess of the amount permitted by N.J.A.C. 5:80-26.8(b), is prohibited from seeking to foreclose on that mortgage. The court answered in the affirmative, holding that the mortgage was void as against public policy. (September 14, 2010)

In Klumpp v. Borough of Avalon, the New Jersey Supreme Court considered the relief available to a property holder from a governmental taking that did not adhere to the requirements of the Eminent Domain Act some 45 years after the fact. The Court held that there was a physical taking of the plaintiff's property when the Borough of Avalon built a dune on the property in 1965, and that in the years that followed, the Borough skirted its responsibility to answer for its actions. The Court concluded that, on the unique facts of this case, equity demanded that the plaintiff be permitted to add a claim for inverse condemnation to pursue valuation of the property at the time of the taking, despite being outside the six-year statute of limitations period under N.J.S.A. 2A:14-1. The Court also held although a physical taking of property should be sufficient notice to the property owner, a government should also provide some other form of notice before or after the taking. (June 22, 2010)

In Campus Associates LLC v. Zoning Bd. of Adj. of the Township of Hillsborough, the New Jersey Superior Court, Appellate Division considered whether a landowner has standing to appeal the denial of a use variance for its property, when the variance application was made by a contract purchaser for the property. Factually, the landowner and contract purchaser entered into a contract for sale-the contract purchaser intended to construct affordable housing on the property. As a result, the contract purchaser applied for a use variance, which was denied by the Zoning Board of Adjustment. The landowner, still intent on pursuing the project, appealed the denial of the use variance. The trial court dismissed the complaint, holding the landowner did not have standing to bring the appeal. On appeal, however, the Court reversed and held the landowner may appeal the denial provided the application depended on property specific proofs and not factors unique to the applicant. The Court reasoned that the landowner was directly affected by the variance application such that he suffered real adverseness when it was denied. The court noted that the variance would run with the land. As a result, the Appellate Division found that the landowner had standing to appeal. (June 4, 2010)

In Trowbridge v. McCaigue, the Superior Court of Pennsylvania addressed whether the plaintiff was entitled to the specific performance of a contract for the sale of real estate. In particular, the court addressed whether the agreement at issue contained all of the essential terms for a contract for the sale of real estate, or the agreement was simply an agreement to come to an agreement at a later time. The Superior Court found that the plaintiff alleged the essential terms of a contract for the sale of real estate. Looking to Pennsylvania's Statute of Frauds, which requires that certain contracts be written and include certain terms, the Court found that a contract for the sale of land need only include an adequate description of the property, a recital of the consideration, and the signature of the selling party. Because the parties had agreed to all of the terms material to the contract, the Court found that the only future occurrence contemplated by the agreement was the execution of the sales agreement. Thus, the Superior Court reversed the trial court's decision granting the defendant's motion for judgment on the pleadings. (March 26, 2010) 

In In re Erie Golf Course, the Supreme Court of Pennsylvania addressed whether the Donated or Dedicated Property Act (DDPA) applies to the formal sale of a municipal golf course and park, and, if so, how much deference should be paid to a municipality's decision to halt continuation of the original use of a property. Erie Golf Course had been conveyed to the City of Erie by a recorded deed including a restrictive covenant memorializing the City's commitment to preserve the property indefinitely as a golf course and park. In 2006, however, the City closed the golf course due to cost concerns. It then filed a petition under the DDPA, which generally allows a political subdivision to apply to Orphans' Court to seek relief from maintaining a property for a purpose it no longer deems practicable. The Supreme Court held that the DDPA applies to all donated or dedicated property, but that it is uniquely within the discretion of the Orphans' Court to determine whether a land's purpose is still practicable. (March 25, 2010)

In Estate of Osborn v. Kemp, the Supreme Court of Delaware evaluated the standards for granting specific performance in the sale of property. Defendant had contracted with decedent for the sale of her beach home contingent upon years of rental and utility payments. The contract was in writing and specified that, after 20 years of payment, defendant could purchase the home for $50,000. Upon decedent's death, her estate disputed the contract. At the conclusion of trial, the vice chancellor ordered specific performance of the contract. Under Delaware law, a party seeking specific performance must show: 1) that a valid contract exists; 2) that he is ready, willing, and able to perform; and 3) that the balance of equities tips in favor of the party seeking performance. The Supreme Court affirmed, holding that all three elements were satisfied. (March 25, 2010)

In Key Properties Group, LLC v. City of Milford, the Supreme Court of Delaware addressed whether a condemnation order associated with an easement related to the use of water and sewer facilities was for a proper purpose, and whether the city violated the Real Property Acquisition Act (RPAA). Citing the Delaware and United States Constitutions, Key Properties argued that the condemnation was for a private party, rather than for a valid public purpose. The court rejected this argument, noting that a "taking" that provides a substantial benefit to private interests may still be for a "public use" where an underlying public purpose is served. As to the RPAA, the court agreed with the lower court that even though the city had not complied with the RPAA's requirements, its failure was excused because compliance would have been futile given that Key Properties' issue was not with the amount of compensation awarded, but rather the condemnation itself. (March 11, 2010) 

In Powell v. Emigrant Mortgage Co., Inc., the Supreme Court of Pennsylvania granted allocatur, agreeing to decide the following question: "Did the Superior Court misapply Pennsylvania law in holding that a mortgage lender's interest in property subject to a lis pendens, due to pending litigation involving title to the property, is controlled by the outcome of that litigation?" The court denied allocatur as to all remaining issues. (February 3, 2010)
 
In U.S. Bank National Assoc. v. Powers, the Superior Court of Pennsylvania addressed whether a party who owned property near another property and maintained the other property for seven years was a "party in interest" under Pa. R.C.P. 3132, with standing to petition to set aside a sheriff's sale of that other property. The court held that the neighboring party was not a "party in interest" because she did not show any relationship to the owner of the other property, and did not show any tenancy or other right to reside on the other property. (December 7, 2009)

In Osoria v. West New York Rent Control Board, et al., the Superior Court of New Jersey, Appellate Division addressed an issue involving rent control. The plaintiff's rent had been controlled by the West New York rent leveling ordinance. The defendant purchased the plaintiff's building and converted it to an owner-occupied, four-residence dwelling, which exempted it from the rent leveling ordinance. The plaintiff refused to pay the defendant's increased rent and filed suit. The trial court dismissed the action, holding that the defendant had properly made the building exempt from the rent leveling ordinance. The plaintiff appealed, arguing that the ordinance still applied because the building was converted from one that was subject to rent control to one that is exempt. The Superior Court rejected this argument and affirmed, holding that a tenant has no pre-conversion vested rights under either the rent leveling ordinance, or New Jersey's Anti-Eviction Act. (November 16, 2009) 

In Alston v. Countrywide Financial Corporation, et al., the United States Court of Appeals for the Third Circuit addressed whether class action plaintiffs had standing to bring an action under section 8(d)(2) of the Real Estate Settlement Procedures Act of 1974 (RESPA). The plaintiffs alleged that their private mortgage insurance premiums were channeled into a kickback scheme operated by their lender and its reinsurer. Although the plaintiffs were not overcharged, they alleged that they had Article III standing because they had suffered an injury-in-fact when the defendants violated their right to a settlement free from unlawful kickbacks. In overturning the District Court’s dismissal of the action, the Third Circuit held that when Congress enacted section 8 of RESPA, it created a private right of action for homebuyers in this circumstance, without requiring an allegation that they were overcharged. (October 28, 2009)   

In Embreeville Redevelopment L.P. v. The Board of Supervisors of West Bradford Township, the Commonwealth Court of Pennsylvania addressed whether West Bradford Township’s Zoning Ordinance 2013-6 was valid, whether the ordinance constituted a curative text amendment or zoning map change, and whether the township fulfilled proper notice requirements under Section 609(b) of the Municipalities Planning Code. The court held that the ordinance added a new use to the township’s I-Industrial District, a zoning map change, requiring notice of a hearing in accordance with the Municipalities Planning Code, which was not done in this case. (March 2, 2016)

In the Matter of Village of Haverstraw v. Ray River Company, Inc., the New York Supreme Court, Appellate Division, 2d Department, determined whether Ray River Co. could extend their time to file a notice of appearance pursuant to EDPL 503(B) in an eminent domain proceeding. Pursuant to the judgment in the Village’s condemnation petition, Ray River Co. was to file a written claim for damages or notice of appearance pursuant to EDPL 503(B) on or before March 31, 2009. The court noted that the timing requirement was neither a statute of limitations nor a condition precedent to compensation, and may be extended upon good cause shown. Because Ray River Co. established “good cause” the court granted their move for an extension of time to file a notice of appearance. (March 2, 2016)

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