Recently in Property Law Category

The years of automatic rent payment increases may be over for landlords. With the last housing market collapse, landlords may be denied their annual rental payment increases for their Section 8 housing units. Even though their contract with MHA may state they will get these increases automatically every year, the contract may have a limitation clause within it that allows MHA to deny increases should it lead to a windfall for landlords.

This week, the U.S. Court of Appeals for the First Circuit has affirmed that MHA properly denied landlords their "otherwise-automatic" annual payment increases. It's all written in their housing assistance payment contracts with the landlord plaintiffs.

The First Circuit Court of Appeals has decided to move the Blackstone battle between the Environmental Protection Agency and the city of Worcester to mediation, forcing the two parties to sit down and possibly discuss a compromise.

The battle over the Blackstone River has been a long and contentious one. Federal environmental regulators initially stepped in when they became concerned with the levels of pollutant discharge from the Upper Blackstone Water Pollution Abatement District plant in Millbury. It claimed that the Blackstone River is one of the most polluted in the state and began implementing limits on pollutants discharged from the plant.

The First Circuit Court of Appeals recently upheld Mortgage Electronic Registration Systems, Inc.'s (MERS) power to assign a mortgage without having to possess a beneficial interest in the promissory note.

The plaintiff in the case contended that although the actual bank mortgagee had declared bankruptcy, MERS did not have the authority to act on behalf of a non-existent entity and assign the mortgage to another institution.

In a unanimous decision, the First Circuit agreed with a lower court that "legally MERS was holding the mortgage in trust," meaning it has the authority to foreclose and assign mortgages, even though it was acting as an agent for the new owners.

Free Press, a media reform advocacy group, filed a petition for review in the First Circuit Court of Appeals this week, challenging new Federal Communications Commission (FCC) net neutrality rules.

Washington insiders were expecting Verizon, which opposes net neutrality, to challenge the rules, reports AdWeek. The Free Press challenge is somewhat ironic, because Free Press actually supports net neutrality.

Bankruptcy Appellate Panel's affirmance of bankruptcy court order denying plaintiff's motion for relief from stay in a suit against a debtor affirmed

In re Handy, 09-9021, concerned a challenge to a Bankruptcy Appellate Panel's (BAP) decision affirming a bankruptcy court order denying plaintiff's motion for relief from stay of his suit against a debtor under the Uniform Fraudulent Transfer Act (UFTA).

Ly v. Holder, 09-2529, concerned a Cambodian citizen's petition for review of a final order of the BIA upholding an IJ's denial of his request for asylum and related relief.  In denying the petition, the court held that substantial evidence supported the BIA and IJ's findings that petitioner's fears of future harm were unrelated to a protected ground, and his remaining claims lack merit.

Aponte-Rosario v. Acevedo-Villa, 09-1200, concerned a challenge to the a grant of defendants' motion for summary judgment in plaintiffs' action against several officers of the Commonwealth of Puerto Rico, the Puerto Rico Public Housing Administration (PRPHA), and the Department of Housing and Urban Development (HUD), claiming that in preparing and approving an application for demolition of their housing project residents violated their statutory right to resident consultation under section 1437p of the U.S. Housing Act of 1937 and other claims.  In affirming the judgment, the court held that, there are no genuine issues of material fact as to PRPHA's compliance with resident consultation prior to filing an application for demolition with HUD, and district court's dismissal of plaintiffs' de facto demolition claim is affirmed as well.

Related Resources:

• Full text of Ly v. Holder
• Full text of Aponte-Rosario v. Acevedo-Villa

Real Estate Bar Ass'n for Massachusetts, Inc. v. Nat'l Real Estate Info. Serv., No. 09-1809, concerned the Real Estate Bar Association's suit against defendant for unauthorized practice of law.  First, the court vacated in part the judgment of the district court against plaintiff on its unauthorized practice of law claim, as in Massachusetts, the state judicial branch and the Supreme Judicial Court of Massachusetts (SJC) in particular, is solely responsible for defining what is the practice of law, and here, there is no controlling precedent which addresses whether the activities at issue constitute unauthorized practice of law.  Lastly, the court reversed and remanded as to the district court's judgment on defendant's dormant Commerce Clause counterclaim, as plaintiff is not a state actor, defendant has not stated a dormant Commerce Clause claim against plaintiff, and plaintiff's bringing of its suit against defendant under Mass. Gen. Laws ch. 221, section 46B is protected by the First Amendment.   

Rodriguez-Garcia v. Miranda-Marin, No. 08-2319, concerned a municipal employee's suit, claiming that she was transferred to another position in retaliation for testimony she gave before the Puerto Rico Government Ethics Office, in violation of her rights under the First Amendment and Puerto Rico law.  In affirming the judgment of the district court, the court held that the evidence presented at trial is sufficient to support the jury finding that plaintiff suffered an adverse employment action sufficient to support her section 1983 claim.  The court also ruled that the defendants would not have taken the same adverse employment action in the absence of her protected conduct, and as such, the mayor is personally liable for retaliation under section 1983, as is the municipality.  Also held that the court did not abuse its discretion in affirming the damages award in the amount of $350,000, and that the court's determination that plaintiff waived her law 115 claim, was not an abuse of discretion.   

Larios v. Holder, No. 09-1869, concerned a Guatemalan native's petition for review of a decision denying his application for asylum and related relief.  In denying the petition, the court held that the IJ's decision to deny petitioner's asylum claim was well-reasoned and supported by substantial evidence and controlling precedent.  

Related Resources:

• Full text of Real Estate Bar Ass'n for Massachusetts, Inc. v. Nat'l Real Estate Info. Serv
• Full text of Rodriguez-Garcia v. Miranda-Marin
• Full text of Larios v. Holder

In Maritimes & Northeast Pipeline, LLC v. ECHO Easement Corridor, LLC, No. 09-1607, the First Circuit faced a challenge to the district court's judgment in favor of the defendants in plaintiff's suit for a declaratory judgment, among other claims, that it possessed sufficient rights over an easement corridor to allow it to use the easement for the purposes of constructing, operating, and maintaining a natural gas compressor station on a property north of the easement.

As stated in the decision: "Though the Amended Easement grants ECHO broad rights over the use and placement of roads and utilities within the Easement Corridor, the fee holders carved out for themselves (and their assigns) the use of Stud Mill Road - the primary means of access to the adjacent property."

Thus, in affirming the district court's judgment in favor of the plaintiff, the court held that the language of the Amended Easement was unambiguous in reserving for plaintiff the right to use the road for the desired purposes.     

Related Resources:

• Full text of Maritimes & Northeast Pipeline, LLC v. ECHO Easement Corridor, LLC,

In Fideicomiso de la Tierra del Cano Martin Pena v. Fortuno, No. 09-2569, the Fourth Circuit dealt with plaintiff's Takings Clause claim, challenging a legislative amendment revoking the transfer of public agencies' lands to plaintiff and mandating return of the lands to public ownership through agencies of the Commonwealth and municipalities.

As stated in the decision: "Public policy disagreements about the best of several rational means to accomplish legitimate public purposes are not the grist of a Takings Clause claim.  When the legislature's purpose is legitimate and its means are not irrational, empirical debates over the wisdom of takings are not to be carried out in the federal courts."

Thus, the court dismissed the suit in concluding that a federal court cannot conclude Law 32 was an illegitimate means of advancing public purpose, not least because transfers of private property to public ownership have been upheld since the founding of the country. 

Related Resource:

• Fideicomiso de la Tierra del Cano Martin Pena v. Fortuno