August 2014

Given the title of this blog and our usual inclinations in takings cases, you would be forgiven for assuming that we’d have a negative review of the Second Circuit’s opinion in 1256 Hurtel Avenue Associates, LLC v. Bulan, No. 12-1603-bk (Aug. 1, 2014), which held that a legislative increase in the size of the homestead exemption — which had the effect of wiping out an existing judgment lien — was not a taking. But before you jump to that conclusion, read on, since we have a couple of nice things to say about the opinion.  

In 2005, the New York legislature increased the homestead exemption — which exempts a certain amount from being used to satisfy money judgments — from $10,000 to $50,000. Five years later, the legislature raised it again to $75,000. Good for homeowners, not so good for those to whom homeowners owe money. But these…

Continue Reading 2d Cir: New York’s Wipeout Of Judgment Lien Is “Legislative Tinkering,” Not A Lucas Or Penn Central Taking

The Texas Supreme Court has agreed to review Texas v. Clear Channel Outdoor, Inc., a decision in which the Court of Appeals held that the owner of billboards was entitled to compensation when the land on which the billboards were located was condemned.  

Texas needed to widen the freeway, and condemned the land on which the billboards were located. It refused to pay just compensation on the grounds that the billboards were personal property and not “realty,” and thus the owner could simply move them. The State issued a removal order. In response, the owner filed an inverse condemnation action to recover just compensation for the billboard takings.

The court concluded the billboards are not moveable property, but are fixed to the ground, and that the state should have condemned and paid for them. It also overruled the state’s objection to the method of determining just compensation, which …

Continue Reading Texas Supreme Court To Consider: Are Billboards Movable Property?

Check this out, an opinion from the Appellate Division of the New York Supreme Court in a tax assessment case, Jacobowitz v. Bd of Assessors, Town of Cornwall, No. D39807 (July 30, 2014. The court held that the Fourth Amendment’s prohibition on warrantless searches and seizures means that a property owner did not have to let the Town’s appraiser into her home to “conduct an interior appraisal inspection” related to her property tax assessment. Slip op. at 1.

It’s a quick read, so we won’t spell it all out in detail, just focus on a couple of the best points. The court held that it is the government’s burden to show entitlement to entry of a home, and not the property owner’s burden to show why it should not. And the property owner’s challenge to the tax assessment did not waive her rights:

Contrary to the Town respondents’ contention…

Continue Reading NY App Div: Town Needs A Warrant For Inspection Related To Property Valuation

Yes, it’s our old favorite, the Australian eminent domain comedy, The Castle (our review herefirst Law Film Festival, and were in good company: Ebert also loved the movie).

The most recent edition of the ABA Journal, features “12 pivotal movie scenes with lessons for lawyers.” The lesson we learn from the “one of the most painfully awkward courtroom scenes put on film,” where inept solicitor Dennis Denuto tries to argue his way around the Australian Constitution’s version of the Takings Clause at a public use hearing: 

There are times when lawyers can reach beyond their limited experience, rise to the occasion and snatch victory for the little guy. There are also times when you know yourself to be outmatched. Potential clients may have complete faith in you, but they probably do not understand the law and the challenges they may face. If you know that…

Continue Reading ABA Journal Zeros In On Our Favorite Courtroom Scene In A Legal Film