2007 DAILY DEVELOPMENT FILES

JANUARY

• 01/09 NY High Court affirms, modifies waiver of tenant default protects guarantor case
• 01/10 MERS Wins in New York - TKO or Crushing Victory In any event - of record nominees can execute discharges
• 01/11 Landlord's Right to Review Tenant's Construction Can Lead to Tort Liability to Third Party Plaintiffs
• 01/12 Where lender takes deed in lieu and dismisses foreclosure after judgment but before sheriff's sale, what does the sheriff get as a fee
• 01/16 Good faith duty of right of refusal grantor not to offer property on terms that artifically constrain right holder's option
• 01/17 Buyer broker's tail honored despite technical failure of broker to give proper notice
• 01/18 As Is vs_ implied warranties and remote purchasers of residential property_ The mud deepens
• 01/19 Liability for Intentional and non-intentional damages is not strict liability
• 01/22 Court will exclude parol evidence even without integration clause where court concludes contract is complete
• 01/23 No state jurisdiction over trustees holding securitized portfolios
• 01/24 Ohio Court holds that landlord has the duty to show reasonable efforts to mitigate
• 01/25 Constructive Eviction Claim for Wrongful Attempt to Evict?
• 01/29 Relative rights of Optionee and Lienor of Optioned Property
• 01/30 If agency condemns your utility project, can it deduct its prior contribution to the project's construction from the award?
• 01/31 For Priority and Title Geeks only - a veritable feast of priority and bankruptcy issues, all in one little case

FEBRUARY

• 02/01 Overstated request for extension may be deemed repudiation
• 02/02 Does Mutual Mistake Avoid Merger by Deed?
• 02/05 Are Public Agencies Restricted Generally in Their Discretion by Mount Laural Principles?
• 02/07 Contract to sell unlawfully subdivided property is void. Then what?
• 02/08 Lender's "loading on" of pass through fees a consumer fraud
• 02/12 Comply with specific performance order - your appeal is over
• 02/13 Shopping center landlords must deter murderers, says Texas court
• 02/14 No Valentine for this Borrower - court credits anti-waiver clause to uphold acceleration
• 02/15 Impact of Chapter 13 on Due On Sale Acceleration - Curable? How?
• 02/16 Does failure to register mortgage on Torrens property kill it vs. subsequent purchasers of the registered title, even after foreclosure of the mortgage?
• 02/19 Maryland High Court Will Undertake Greater Review Authority Over Urban Renewal Takings Than Kelo May Suggest
• 02/20 Condo unit owners generally cannot recover from fellow owners in tort based upon CC&R's, but if they do, and lose, attorney's fees may be payable
• 02/21 No wrong found when Texas county voids lease of tenant it has recognized for 55 years
• 02/22 MERS scores another win on foreclosing as nominee - Florida appeals court reverses broad trial court attack
• 02/23 Does timber contract turn timber into personalty and remove timber resource from lien of prior mortgage?
• 02/26 Do option rights "relate back" to exclude post option lessee rights?
• 02/27 Enfoceability of Form Arbitration Agreements - a Tryptich of Recent Decisions
• 02/28 Impact of Usurious Seller's Interest Rate on Option to Purchase on Seller Financing Basis

MARCH

• 03/02 Can seller NEVER rely on financing condition
• 03/05 Mississippi installment contract forfeiture case plays hardball
• 03/06 Fifty year old unaccepted dedication of park land from plat remains live but inchoate and will survive tax foreclosure sale by very agency to which it's dedicated
• 03/07 How long, after exercise, may a lease option remain unclosed
• 03/09 Another Case Holding that Parent's Control Over Decisions Destroys Liability Protection of LLC
• 03/12 Topic for discussion Is a collection action by a sold out junior a suit for deficiency Is it barred by statutory private foreclosure deficiency bars

JUNE

• 06/04 Time of Essence and Extensions of Mortgage Contingency Clauses
• 06/06 Estoppel by Deed Binds Subsequent Takers
• 06/07 Parallel right attorney's fee statutes and void contracts_ Can you match rights with a ghost
• 06/08 Supremes approve creditor attorney's fees in bankruptcy where contract permits
• 06/11 Threshold showing for RLUIPA - affirmative zoning action for religious activities - becomes easier
• 06/12 Can LL put a double rent holdover provision in lease
• 06/13 What is impact of prepayment premium on determination of debtor's equity in bankruptcy
• 06/14 Tenant Waste in Long Term Lease
• 06/18 Subdivision Developer's Imposition of Additional Burdens on Later-Sold Lots May Breach Implied Uniformity Principle
• 06/20 Status of Developer's Settlement in Zoning Dispute as an Avoidable Contract in Developer's Bankruptcy
• 06/21 When LL and T settle lease dispute with substantial T payment and cancellation of lease, what happens to Broker
• 06/22 Are trees part of the sold property so that seller can't cut them down pre closing
• 06/25 Builder's limited express warranty precludes implied warranties, but not breach of contract claims
• 06/26 Who pays for sidewalk injuries
• 06/27 Another "Residential Only" vs. Short Term Renting Case
• 06/28 Statute of Frauds and price term
• 06/29 Constructive notice effect of unindexed lis pendens

JULY

• 07/05 Federal Trial Court Upholds "Bad Boy Clause" - May be First Reported Case
• 07/06 Missouri Court Overanalyzes Mortgage Granting Clause - a Lesson for All
• 07/09 Can Buyer Agent submit bids on same property from two competing clients
• 07/10 GARAGES; Garages; Garages; garages;
• 07/12 Can City Contract for Joint Telecommunications Tower and Duck Its Own Zoning Requirements
• 07/13 Cheated Widows Always Win!!
• 07/16 New York High Court Endorses City's 'Bargain Sale' Covenant Restrictions
• 07/17 When is a successor liable to perform covenant breached by predecessor
• 07/18 Can City require homebuilders to hookup to City's internet service
• 07/19 Pa.Statewide Assessment Scheme Unconstitutional
• 07/20 Three Looks at Uncertain Conveyances
• 07/25 Is an elevator a 'common carrier' for liability purposes
• 07/27 Failure to disclose EPA investigation to buyer is fraud, notwithstanding 'as is' clause, and can earn punitive damages
• 07/31 New Jersey High Court decides 'free speech in homes association' case - sort of

AUGUST

• 08/01 Ohio case embraces "anti waiver" clause to protect lender in residential foreclosure
• 08/02 When is, and when ain't the index part of the record in New York? A snake with two heads?
• 08/04 Does LL have duty to reject juvenile gang members as tenants?
• 08/06 Can servient owner park in dominant right of way area?
• 08/07 Diamond Point on Review - Radius Clause protecting business "then being operated" on protected premises is not breached where tenant has gone dark lawfully on protected premises before operating another store.
• 08/08 How slippery are your entireties???
• 08/09 Subdivision leasing restriction violates Fair Housing Act(!!?)
• 08/10 Tenant vacates and place is trashed - Landlord still must go to court to evict.
• 08/13 Massachusetts Buys In to Rent Acceleration in Commercial Leases
• 08/14 Should court infer intent that parties intend restrictive deed covenant to benefit grantor's retained property?
• 08/15 Can mortgagee pile on new claims in foreclosure action after getting default judgment on note?
• 08/16 Statute of Limitations Defense Barred Following Unenjoined Foreclosure.
• 08/17 Uniform Residential LL/T Act No Basis for LL Tort Liability
• 08/20 Mechanic's lien for servient's work on easement will not attached to beneffitted parcel.
• 08/21 8% Note Rate, 30% Default Rate? Utah Says U Bet!
• 08/22 River East reversed!! Yield maintenance clause with Treasury Index not a penalty
• 08/23 Is it worth putting agreements to paper in Utah?
• 08/24 Gate across an easement dedicated to public. OK? Maybe
• 08/29 "Unity of Ownership" doctrine a useful eminent domain benefit for small business with multiple property owners

SEPTEMBER

• 09/04 Boundary by Acquiescence: An Endangered Species - But Still Out there
• 09/05 Whats the difference between a Riparian Right and a Riparian Grant?
• 09/11 "Subject to attorney approval by X date" does not require attorney to express any view by the given date. No approval - no contract, no matter when we find out
• 09/13 Can a sold out junior in nonjudicial sale recover on note when statute prohibits deficiencies following non judicial foreclosure?
• 09/19 "Turf state" broker regulation unconstitutional. Commission splitting with out of state licensees must be permitted
• 09/20 Texas dismantles Davidow. Implied warranties in commercial leases fully waivable
• 09/21 Prepayment fee in bankruptcy need not be "reasonable" if claim is against surplus in the estate
• 09/24 Court may realign priority among participating lenders to achieve equity
• 09/27 Granting of business license is not the effective amendment of zoning status of the business property
• 09/28 Dedication to trust may be inferred from grant to city for park purposes, and citizens can sue to prevent city from changing the use

OCTOBER

• 10/01 Subprime class action certified. Did collection lawyers inflate title costs in reinstatment demands?
• 10/02 Second hand smoke as a breach of warranty of habitability?
• 10/03 Is escrow collecting mortgagee a fiduciary of borrower - and what does that say about forced insurance?
• 10/15 Construction Statute of Repose Commences to Run When Individual Service Provider Completes Work?
• 10/16 "Pending legislation" exception to right to receive lawful building permit requires that land use change actually under consideration by legislative zoning authorities?
• 10/17 Can Lender collect 10% late fee on final balloon payment?
• 10/19 For purposes of determining notice obligation, consideration of zoning "reclassification" includes proposed changes in permitted development characteristics, even where use remains "residential."?
• 10/21 Can neighbors compel maintenance of shade trees on adjacent property? As against a pipeline easement holder in such property?
• 10/23 Can pipeline easement owners cut down trees to accommodate aerial surveillance of the lines?
• 10/24 Foreclosing creditor held up in traffic, and $6 million property sells for $2000 at foreclosure. Court refuses to undo sale?
• 10/25 Clean up those mortgage legal descriptions or get murdered in bankruptcy!!!?
• 10/26 Is judicial foreclosure purchaser liable under premises liability notions before sale is confirmed?
• 10/29 Third party purchase money lender will prime prior judgment lien against borrower (but not against seller)
• 10/30 Appraisal liability without privity? Not yet
• 10/31 Can life tenant and remainder each collect total insurance proceeds on separate policies for single loss?

NOVEMBER

• 11/01 Is Landlord liable when gun waving tenant actually fires?
• 11/02 Agency contributes cost of utility extension, but gets no credit for that if it later condemns the facility
• 11/05 Aren't you glad you didn't choose as controlling law a jurisdiction that invalidated your refusal right due to RAP (like these folks did)?
• 11/06 Editor and Jack Murray get into it on whether "value" exclusion bars foreclosure title coverage when court sets aside sale for "shocking" foreclosure price
• 11/07 Important D.C. Appeals decision provides end run around Kelo
• 11/08 Can authority evict tenant for crimes committed off premises?
• 11/09 Latest implied continuous operation decision rejects reliance on use clause to find implied covenant