2005 DAILY DEVELOPMENT FILES

JANUARY

• 1/3 Signature May Not be Required to Make Construction Contract Binding

• 1/4Capped Claims of Assignor When Bankrupt Assignee Terminates Lease

• 1/5 Federal Forfeiture of Cotenant's Interest - What About the Other Cotenant?

• 1/6 "Inattentive" Council Review Hearing Voids Variance Decision

• 1/7 Application of "Earmarking Doctrine" To Refinancing that Precede Bankruptcy Avoids Preference Problems

• 1/10 Judicial foreclosures are "debt collection under Fair Debt Collections Act, even when no judicial foreclosures are not.

• 1/11 The Other Shoe in the Fair Debt Case - Definition of "Debtor"

• 1/13 Tenant in Bankruptcy Can Reject Lease Retroactively, Even When It Has Not Surrendered Possession, and Dodge Rent

• 1/14 Associations Can Regulate Member Parking on Local Streets

• 1/17 Can Association Provide Background Information on Board Candidates?

• 1/18 Low Bankruptcy Valuation Does Not Cap Mortgagee's Right to Bid in Debt at Foreclosure and Avoid Paying Surplus

• 1/19 New Jersey court affirms broad "blight" designation supporting private redevelopment of public land.

• 1/20 Rejection of Lease by tenant in bankruptcy - is it a termination - or just a breach

• 1/21 Editor Ruminates on Rent Obligations in Context of Reversion Transfer

• 1/24 Court Will Permit Tax Sale to Stand in Face of Automatic Stay Violation Where Owners and Mortgagee Failed to Notify Tax Foreclosure Parties

• 1/25 Commission Payable in Quantum Meruit when Proposed Buyer Leases

• 1/26 Do Oral Conditions Void a Present Physical Deed Delivery?

• 1/27 Another "Earmarking" Case Surprises - Refinancing Loan a Preference

• 1/28 Troublesome "Moot ness Doctrine" Prevents Appeal on the Merits of a Judicial Deprivation of Landlord's 365 Protections

• 1/31 "Additional Insured" Coverage Available Even When Indemnity Agreement Fails

FEBRUARY

• 2/1 Landlord's Groundless Litigation vs. Tenant Can Amount to a Constructive Eviction.

• 2/2 Transfer by Husband to Self and Wife Assumed to be by Entireties

• 2/3 Mall Owner Not Liable for Injuries in Separately Owned Lot Where Patrons Park

• 2/4 Major New Good Faith Case - Optionor Can't Obfuscate Exercise Details, Even When Optionee Messes Up

• 2/7 Latest Mortgage Scam Uncovered - Too Late for Homeowner Victims

• 2/8 Can Construction Loan Draw Requests Satisfy Requirement for Writing to Support Mechanic's Lien?

• 2/09 No Light and Air Rights by Prescription - What About by Implication?

• 2/10 Developments in the Implied Warranty of Suitability in Commercial Leases

• 2/11 Escrowee/Lawyer's Duty to Select Safe Bank? No more.

• 2/14 Impact of Fraudulent Withholding on "As Is" Clause - When is Buyer Deterred from Inspecting?

• 2 /15 Does LL or T decide how much security is enough? Metal detectors in the Rainbow Room?

• 2/16 Does failure to pay a condo assessment postpetition give rise to a prepetition indebtedness? Hmmmm?

• 2/17 Constitution Requires Some Equality of Municipal Services for Mobile Home Parks

• 2/18 Is Home Office a Violation of "No Business" Restriction?

• 2/21 Does Owner Have Duty to Maintain Slope Supporting Filled Property on Neighboring Land?

• 2/22 Will Bkrtcy Permit Late Charge AND Default Interest?

• 2/23 Liquidated Damages Analysis of Prepayment Premium on Acceleration Works.

• 2/24 Equitable Servitudes Require Common Plan - Other Subdivision Covenants Do Not

• 2/25 Godzilla vs. King Kong - Rule Against Perpetuities vs. Statutorily Mandated Option Right

• 2/28 Disabilities Law and Elevator Requirements

MARCH

• 3/1 Is there still a lease if LL ousts unpermitted assignee?

• 3/2 Is Consideration Necessary to Support an Option?

• 3/3 Without Specific Time of Essence Agreement, Rescheduled Closing Time Can Linger and Linger

• 3/6 Closoing Attorney's Duty to File Extension of UCC Recording Five Years Later? Well . . . Maybe.

•  3/7 Criminal Statute re Deposit Turnover Enforceable by Successor Landlord

• 3/8 Can Premature Foreclosure Notice Spoil Sale?

• 3/9 Qualitech Countered - A Light Shines in Boston Courthouse

• 3/10 Implied Continuous Operation and Going Dark Aggressively.

•  3/11 Seller can set time of essence, but not if it's not willing to perform fully.

•  3/14 Statute of Repose Roused Again in Adverse Possession Context - Is Alabama Unique?

• 3/15 Blow the foreclosure? Does res judicata bar all future foreclosures - even on new defaults?

• 3/16 Is prohibition on feeding Bambi in your own background too far for government to go?

• 3/17 Can Enforcement of Private Covenant Abridge Religious Freedom?

• 3/18 Role of Subjective Intent in Determining Abandonment of Preexisting Non-Conforming Use

• 3/21 Does Subordinating Lender Subordinate to Dragnet Clause in Priming Mortgage?

• 3/22 Florida Rejects Traditional Easement by Implication Analysis

• 3/23 If one cotenant refuses to sell, others may dodge contract.

• 3/24 Anti-Deficiency Protection Does Not Preclude Million Dollar Award of Attorney's Fees.

• 3/25 Texas flip of burden of proof on mitigation duty helps landlords.

• 3/28 Another Waiver of Automatic Stay Case - OK - But Let's Think About It

•  3/29 Sixty years to establish a prescriptive easement??? Maybe.

• 3/30 Special Servicer Gets Slugged for Overraction to Borrower's Difficulties

APRIL

• 4/18 New Ruling on Chapter 13 Cram Down Protection for Claims Secured "Solely" by Mortgages on Personal Residence

• 4/25 Illinois Court Rejects Restatement's New Twist on Equitable Subrogation

• 4/27 If broker overstates square footage, but value is still there, does buyer get damages?

• 4/28 Illinois weighs in on unauthorized practice/conveyancing debate.

MAY

• 5/2 Two "quick hits" on commercial leasing issues: Waiver of Rent. "Additional Rent" Definition.

• 5/3 Backhanded Limit on Abstractor Liability Upheld

JUNE

• 6/13 Does Corporate Reorganization Trigger "Due on Transfer" Fee?

AUGUST

• 8/15 (We're back) Federal Usury Preemption Does Not Protect Mortgage Brokers

• 8/16 Implied Duty not to Relocate a Casino Boat Paying Percentage Rent?

• 8/17 Michigan Court Declares All Property to Ordinary High Water Mark Subject a Public Walking Trail.

• 8/17 Does a college owe a duty to inform a dormitory resident that his roommate earlier has been suspended for violence?

• 8/18 Does Title Theory Lender "Own" the Rents, Even When No Deficiency??

• 8/22 Single user public road created by eminent domain OK, notwithstanding Hathcock in Michigan

• 8/23 More Contract for Deed Woes - It's Not What Ya' Say, It's the Way That'cha Say It

• 8/24 Lis Pendens - Inquiry Notice - Inadequate Description - How to Resolve

• 8/25 City's failure to provide prior notice of curb cut closure supports permanent injunction against such closure

• 8/26 Does Seaside Subdivision Lot Own to the Water's Edge

• 8/29 Durrett Redux in Strict Foreclosure Setting

• 8/30 Easement Termination Case Explores All the Theories

• 8/31 Wife's Waiver of Claims to All Property in Which Husband Has an Interest Does Not Release Joint Tenancy w- Husband

SEPTEMBER

• 9/1 New Jersey Reduces Stress on Lot Merger Problems for Subdivisions

• 9/2 Transfer of Home Place to Kids in Exchange for Lifetime Support Must be Carefully Documented

• 9/6 Mistake in Tax Proration is Final - New Assessment Sticks Buyer

• 9/7 Technical Notarial Errors Foils Record Priority Under Ohio's Pure Race Notice Statute

• 9/8 Broker doesn't sign arbitration clause - still benefits from its terms

• 9/9 All Terrain Vehicles Over the Pipeline Easement Nope

• 9/12 Right of Refusal Must State Specifically a Match the Offer Term or It's Void

• 9/13 Builder's Tying Arrangement for Subdivision Lot Upheld

• 9/14 What Compulsory Counterclaims Are There to an Eviction Proceeding

• 9/15 No Nonconforming Use Status When All Permits Weren's Obtained, Even Though Statute of Limitations Has Run

• 9/16 MERS stubs its toe trying to foreclose as owner's rep in Florida trial court

• 9/19 Pennsylvania Resolve Recording Dispute - Index is NOT Part of the Record

• 9/20 Maryland Court Trims Sovereign Immunity Protection for Park Areas Near Sidewalks

• 9/21 Bombshell New York Opinion Permits Landlord Trespass - Needs Reversal

• 9/22 Non-Reliance Clause Useless if Not Specific

• 9/23 Under Uniform Gift to Minors Act, lenders on notice of custodian's self dealing from record of transfer to herself.

• 9/27 Statute of Repose Extended To Reach Unknown Designer

• 9/28 Mitigating Landlord need not be a bottom fisher

• 9/29 Is reasonableness of LL's consent to sublet measured by standards of original, or newest, LL

• 9/30 Can LL object to assignment based on assigning tenant's bkrptcy after assignment was made

OCTOBER

• 10/3 Requirement for immediate notice cancels required formalities elsewhere in lease

• 10/4 Federal Forfeiture and Torrens - Oh My!!!

• 10/5 Is Salt Lake City's 'Ecclesiastical Park' Unconstitutional When Only Mormons Can Promote Their Religion There

• 10/6 Fair Rental Value, not Landlord's Operating Profit, Is Appropriate Mitigation Credit for Abandoning Tenant

• 10/7 Ninth Circuit Adopts Mayan Rule - Letter of Credit Security Deposits Are Credits to Bankruptcy Cap

• 10/10 Is Possession of Note Necessary to Seek Relief from Stay on Foreclosure

• 10/11 Setting Aside Foreclosure Sale for Inadequate Bids Alaska sez yes.

• 10/12 When is a 'person' only a person Insurance case defines 'person' in wrongful eviction liability coverage.

• 10/13 Three in a pit - judgment lien, mortgage lien, homestead protection - which one wins in Bankruptcy

• 10/14 Does Egregiously Low Auction Price Deprive Foreclosure Purchaser of BFP Status

• 10/17 When Does Limitations Period Commence on Defective Construction Contract, closing, discovery

• 10/18 Installment Seller Buys Insurance; Installment Buyer Gets a Windfall!!

• 10/19 Choice of Law Permits Lender to Avoid Anti-Deficiency Laws in State Where Foreclosure Occurs

• 10/20 Payment of 75% of Debt Balance No Consideration for Mortgagee's Forbearance

• 10/21 Liquidated Damages clause re Earnest Money does not preclude separate recovery for pre closing rent

• 10/24 Neighboring townhouse owner is your landlord_ Do you live in owner-occupied building

• 10/25 All buildings, structures and improvements stay with landlord - what about trade fixtures

• 10/26 Material vs_ Not Insignificant Defaults in Lease - When Can LL Terminate

• 10/27 How fundamental does a religious practice have to be to require protection from zoning impact

• 10/28 Can state banish convicted (and punished) sex offenders from residing in its boundaries

NOVEMBER

• 11/01 Equally Scary - Six Year Limitations on Class Actions for Mortgagee's Late Satisfaction[Scanned]

• 11/02 Want Landlord's consent to sublease Show me the document!!!

• 11/03 Impact of Private Subdivision Covenants on Land Use Decisions

• 11/04 Honey, we bought the wrong house!! A comedy of errors in several parts

• 11/07 Implied easements require more than a preexisting use when documents suggest parties intended to abandon that use

• 11/08 Zoning estoppel permits calculated end run

• 11/09 Does Public Road Easement Include Private Access Roads

• 11/10 Broker forges seller's signature, but seller's knowing execution of subsequent disclosure documents ratifies

• 11/11 OK to use treasuries to compute prepayment premiums as liquidated damages for mortgage loan default

• 11/14 When will tenants enjoy implied waiver of subrogation for their negligently caused damage to landlord's premises

• 11/15 Is New York's Home Sale Disclosure Statute Unconstitutiona

• 11/16 Dispute growing over maintaining-expanding municipal roads built on federal land

• 11/18 Wal Mart, Oh Wal Mart!! Of what nature is thy sting

• 11/21 Can Condo Associations Prohibit Resale to Outsiders

• 11/22 For Medicaid qualification purposes, does equity stripping deed out have to be recorded

• 11/23 Can specific performance apply when seller takes ill

• 11/25 More Fire and Smoke re Letter of Credit Tenant Security Deposits and Bankruptcy Cap

• 11/28 If You Don't Know You Have Water Right Appurtenances Do You Transfer Them With the Land

• 11/30 CERCLA liability for utility placing underground lines in public easement Maybe

DECEMBER

• 12/01 Can state law dismiss judgment liens post discharge beyond bankruptcy impact

• 12/02 Exclusive Use Clause not an unreasonable restraint - takes a big bite

• 12/05 Lease Lacks Property Description - What Constitutes Part Performance

• 12/07 Can Broker Earn Commission on Sale to Self?