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    Property Law Legal Research Blog

    Alistair D. Edwards

    Recent Posts

    Do Short-Term Vacation Rentals Violate Covenant Prohibiting Commercial Activity or Use?

    Posted by Alistair D. Edwards on Tue, Oct 16, 2018 @ 11:10 AM

    Alistair Edwards—Senior Attorney, National Legal Research Group

                Short-term vacation rentals have become increasingly popular and easier to obtain with the advent of websites such as Airbnb. Now, an owner can simply use such a website to attract potential renters and lease the property to vacationers on a very short-term basis. Some of these rentals can be as short as a one- or two-day rental. However, owners of residential properties that are subject to restrictive covenants are often prohibited from using their properties for commercial activities, uses, or purposes. Does this include renting the property to vacationers on a short-term basis?

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    Topics: property law, short-term vacation rental, commercial activity use, restrictive covenant

    Construction of Structure Blocking a Neighbor’s View Not a Nuisance

    Posted by Alistair D. Edwards on Fri, Feb 16, 2018 @ 16:02 PM

         The general rule is that a landowner has no common law right to an unobstructed view over an adjoining property. Thus, if a neighbor erects a structure on his property that blocks another neighbor’s view from his property, this likely does not constitute an actionable nuisance or give the neighbor any other type of claim. Absent an express easement or covenant, this right to an unobstructed view generally does not exist. "In the absence of statute, generally, a landowner may, by building on his or her own land, deprive the adjoining owner of the light, air, and view of which the owner was the recipient before the structure was erected without inflicting a legal injury by such obstruction." 2 C.J.S. Adjoining Landowners § 28 (Westlaw database updated December 2017). 

          For example, in Ceynar v. Barth, 2017 ND 286, 904 N.W.2d 469, the North Dakota Supreme Court recently considered a nuisance action brought by a homeowner against his neighbor (and the homeowner’s association) after the neighbor constructed a pool house on his property which obstructed the neighbor’s view. The pool house blocked the homeowner’s view of a golf course and very likely reduced the market value of the home. In affirming the trial court’s grant of summary judgment to the defendant neighbor, the court relied mainly on California precedent and stated that "[j]ust as traditional American property law fails to protect access to light over neighboring land, in the absence of an express easement or covenant, advantageous views are unprotected." Id. ¶ 26, 904 N.W.2d at 476. The court further explained:  "Because the Ceynars [plaintiffs] have no cognizable right to an unobstructed view from their property, Barth's [defendant] construction of the pool house as a matter of law did not unreasonably interfere with the Ceynars' use and enjoyment of their property." Id. ¶ 28, 904 N.W.2d at 478; see also Wolford v. Thomas, 190 Cal. App. 3d 347, 356, 235 Cal. Rptr. 422, 427 (1987) ("[A] building or structure does not constitute a nuisance merely because it obstructs the passage of light and air to the adjoining property or obstructs the view from the neighboring property, provided such building or structure does not otherwise constitute a nuisance.").

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    Topics: actionable nuisance, homeowner's association, lawful structure, adjoining landowners

    PROPERTY:   Realtor's Written Contract with a Co-Owner Binding on the Other Owners

    Posted by Alistair D. Edwards on Mon, May 8, 2017 @ 10:05 AM

    Alistair Edwards, Senior Attorney, National Legal Research Group

                A real estate owner's contract with a realtor may be required to be in writing and signed by the owner in order to satisfy the statute of frauds. As in many States, that is certainly the rule in California. As the California Supreme Court stated nearly 30 years ago, "[a] broker's real estate commissions agreement is invalid . . . unless the agreement or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by the party's agent." Phillippe v. Shapell Indus., 43 Cal. 3d 1247, 1258, 743 P.2d 1279, 1283 (1987) (internal quotation marks omitted).

                But, what happens when there is more than one owner of the property (co-owners) and only one of the owners signs the broker's contract? Is that contract biding on the nonsigning co-owner? Recently, in Jacobs v. Locatelli, 8 Cal. App. 5th 317, 213 Cal. Rptr. 3d 514 (2017), the court wrestled with this exact issue. In that case, only one of the co-owners of a parcel of vacant land signed the broker's listing agreement giving the broker the exclusive right to sell the property for one year and providing for a $200,000 commission. The other co-owners, and there may have been at least five other owners, did not sign the agreement.

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    Topics: written and signed requirements, real estate contract, signing co-owner binds other owners

    PROPERTY/MORTGAGES: Implied Duty of Good Faith: Impact of Loan Modification Request

    Posted by Alistair D. Edwards on Tue, Jan 17, 2017 @ 17:01 PM

    Alistair Edwards, Senior Attorney, National Legal Research Group

         It is not unusual for a borrower (mortgagor) who is facing foreclosure to attempt to obtain a loan modification from the lender (or the servicer acting for the lender). However, even if the borrower requests a loan modification, this does not automatically put the foreclosure process on hold. Nor does the lender (mortgagee) automatically violate some sort of duty owed to the borrower by proceeding with the foreclosure even though a loan modification has been requested.

          For example, in Afridi v. Residential Credit Solutions, Inc., No. CV 15-13632-NMG, 2016 WL 3017382 (D. Mass. May 24, 2016), the U.S. District Court for Massachusetts recently held that the lender (or the servicer acting for the lender) did not breach its implied duty of good faith by proceeding with a foreclosure sale while the borrower was attempting to obtain a loan modification. In that case, the servicer sought to foreclose, and in order to avoid that outcome, the borrower applied for a mortgage modification under the Home Affordable Modification Program ("HAMP"). The servicer initially denied the application as incomplete. The servicer ultimately provided a list of the missing documents and the borrower updated his application. However, the servicer scheduled a foreclosure sale without first rendering a decision on the borrower’s modification application. The servicer ultimately denied the application.

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    Topics: mortgages, property, loan modification, no breach of implied duty of good faith

    MORTGAGES: Mortgagor Entitled to Truth-in-Lending Disclosures Even if Not Personally Liable on Loan

    Posted by Alistair D. Edwards on Tue, Mar 15, 2016 @ 13:03 PM

    The Lawletter Vol 41, No 3

    Alistair Edwards, Senior Attorney, National Legal Research Group

         The Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601 et seq., requires a mortgage lender (a mortgagee) to provide certain disclosures to the borrower (mortgagor). If these disclosures are not made, the borrower may have the right to rescind. Under TILA, when a loan is secured by the borrower's principal dwelling, the borrower may rescind the loan agreement if the lender fails to deliver certain forms or to disclose important terms accurately. TILA requires creditors to provide borrowers with clear and accurate disclosures of terms dealing with things like finance charges, annual percentage rates of interest, and the borrower's rights. Failure by the lender to deliver these disclosures may permit a borrower to rescind the loan transaction.

          However, is a person who is not personally liable on the loan but who is the owner of the dwelling that is used to secure the loan entitled to the TILA disclosures and the right to rescind? Recently, in Lakeview Loan Servicing, LLC v. Pendleton, 2015 IL App (1st) 143114, ___ N.E.3d ___ (not yet released for publication), the Appellate Court of Illinois considered this exact issue.

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    Topics: TILA, Regulation Z, mortgages, Alistair D. Edwards, disclosure to owner of dwelling if not mortgagor, Lakeview Loan Servicing v. Pendleton

    PROPERTY: Duty of Mineral Rights Lessee/Purchaser to Inform Lessor/Vendor About Deal in Place to Resell Rights to Third Party for Much Higher Price

    Posted by Alistair D. Edwards on Mon, Dec 14, 2015 @ 11:12 AM

    The Lawletter Vol 40 No 11

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    Topics: property, Alistair D. Edwards, mineral rights

    PROPERTY: Stranger-to-the-Deed Rule Did Not Invalidate Right of First Refusal

    Posted by Alistair D. Edwards on Wed, Sep 9, 2015 @ 10:09 AM

    The Lawletter Vol 40 No 7

    Alistair Edwards, Senior Attorney, National Legal Research Group

         Under the stranger-to-the-deed rule, a deed with a reservation or exception by the grantor in favor of a third party, a so-called stranger to the deed, does not create a valid interest in favor of that third party. For example, a reservation in a deed purporting to create a life estate in a third party (a stranger) may very well be ineffective. Many jurisdictions still adhere to some form of the stranger-to-the-deed rule.

         What happens, though, when a grantor gives a deed containing a right of first refusal in favor of a third party or parties? In other words, the grantor did not create a right of first refusal in himself but in favor of a stranger to the transaction. The effect of a right of first refusal, also called a preemptive right, is to bind the selling party to not sell without first giving the person holding the right the opportunity to purchase the real property at the price specified. But does the stranger-to-the-deed rule invalidate a right of first refusal given to the third party/stranger?

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    Topics: Alistair Edwards, property, right of first refusal, reservation, The Lawletter Vol 40 No 7, stranger-to-the-deed rule

    LANDLORD-TENANT: Apartment Tenant May Have Claim for Breach of Implied Warranty of Habitability Based on Another Tenant's Harassing Behavior

    Posted by Alistair D. Edwards on Mon, Jul 6, 2015 @ 15:07 PM

    The Lawletter Vol 40 No 5

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    Topics: property, Alistair D. Edwards, habitability, breach of implied warranty, landlord-tenant, The Lawletter Vol 40 No 5

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