2022

Well, that was quick. Last month, as we reported here, the a Ninth Circuit panel held that the City of Oakland, California, could require property owners to pay thousands of dollars in what is branded “relocation fee” to their tenants as a precondition of the owner moving into their own property. This isn’t an “exaction” subject to the nexus and rough proportionality requirements applicable to such demands when they are in land use permits. This was merely a regulation of the landlord-tenant relationship.

Now, our colleagues Dave Breemer and Brian Hodges (the team responsible for Knick v. Township of Scott) have produced this cert petition.

As this is a case in which our firm has an active part, we won’t be doing much more here than posting the petition, and the Question Presented. You can read the petition yourself and get the idea of what the issues …

Continue Reading New Cert Petition: Are Generally-Applicable Requirements Subject To Nollan-Dollan Analysis?

Screenshot 2022-03-07 at 14-43-08 Burling to Receive William Mary Law School’s 2022 Brigham-Kanner Property Rights Prize

Some good news: our Pacific Legal Foundation colleague Jim Burling is slated to receive the 2022 Brigham-Kanner Property Rights Prize in September.

Check out the media release, with more details:

James Burling, Vice President of Legal Affairs at Pacific Legal Foundation, will receive the 2022 Brigham-Kanner Property Rights Prize at William & Mary Law School’s 19th annual Brigham-Kanner Property Rights Conference on September 29-30 sponsored by the William & Mary Property Rights Project.

The Property Rights Project presents the award each year to an individual whose scholarly work and accomplishments affirm that property rights are fundamental to protecting individual and civil rights.

“James Burling is among the foremost students of the relationship between citizens and their government in contemporary America,” said Steven J. Eagle, Professor Emeritus of Law at George Mason University’s Antonin Scalia Law School and the 2019 Brigham-Kanner Prize winner.

Congratulations, Mr. Burling.

Please mark your calendars…

Continue Reading Burling to Receive William & Mary Law School’s 2022 Brigham-Kanner Property Rights Prize

We gotta be honest here: when the substantive portion of an opinion (even an opinion about takings and exactions) begins with, “Congress created the Enterprises to, inter alia, provide liquidity to the mortgage market…” our eyes kind of glaze over. It’s going to be one of those opinions.

But we soldiered on, and slogged through the Federal Circuit’s opinion in Washington Federal v. United States, No. 20-2190 (Feb. 22, 2022). The case is about the 2008 federal takeover of Freddie Mac and Fannie Mae. We won’t go into the details, but the basic allegations in the complaint are that the fed takeover of the entities was an exaction, and a taking.

The Federal Circuit affirmed the Court of Federal Claims’ dismissal, although for other reasons. The CFC thought the plaintiffs missed the 30-day statute of repose applicable to challenging the appointment of a conservator. The Federal Circuit disagreed…

Continue Reading CAFED: Fed Takeover Of Fannie Mae & Freddie Mac Not An “Exaction,” Not A Taking

Lately, we’ve been zeroing in on one of the lesser known parts of the Supreme Court’s takings canon, Yee v. City of Escondido, 503 U.S. 519 (1992), where the Court concluded that a city ordinance that limited the amount a property owner could charge a tenant for rent was not a physical invasion taking.

In Yee, the Court held that the ordinance did not intrude on the owner’s right to exclude because the owners had invited their tenants to intrude on their property when they let them become tenants. Yeah, that invitation and resulting intrusion was conditioned on the tenant paying each month a specific amount of rent and the ordinance effectively rewrote that agreement, but the plaintiff raised only a facial categorical takings claim (and thus the question of whether the city-mandated lower rent prohibited a fair return to the owner was an issue that the owners could…

Continue Reading Wash App: No Taking Of Right To Exclude Because Eviction Moratorium Merely Lets Tenants Remain

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Thank you to the editors over at The Practical Real Estate Lawyer for publishing my missive on Cedar Point Nursery v. Hassid, the U.S. Supreme Court’s recent blockbuster regulatory takings decision (and for letting me post a copy of the article here so it is available even if you are not a PREL subscriber). And you know this, but I’m going to disclose it again: my law firm represented the property owner in that case, so yes, I do have a viewpoint; take that into account while reading. 

By the way, you might consider becoming a subscriber. The journal publishes just what the title suggests it does – practice-oriented articles about dirt lawyering. Good stuff.

Thomas, Common Sense and Common Law: Defining “Property” in Cedar Point v. Hassid, 38 Prac. Real Estate Law…

Continue Reading New Article: Common Sense and Common Law: Defining “Property” in Cedar Point v. Hassid

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Sorry about the headline, but come on, man! We have to use clickbaity headlines every now and then to get your attention. Here’s the latest in a case we’ve been following.

Yesterday, the Supreme Court of Canada heard oral arguments in Annapolis Group Inc v. Halifax Regional Municipality, a case involving “de facto expropriation,” or what we in the U.S. might think of as a regulatory taking.

We watched the livestream (along with a few of our northern colleagues), and if you missed it, the recording of the (2-hours and 30-minutes!) arguments can be found here — in English, with simultaneous French translation, if you want to have some extra fun.

Screenshot 2022-02-17 at 07-50-43 Supreme Court of Canada - SCC Case Information - Webcast of the Hearing on 2022-02-16 - 3[...]

Yes, there really are that many Justices
and lawyers on the argument

The Supreme Court is considering whether Halifax’s refusal to approve Annapolis Group’s development applications (consistent with its residential zoning, more specifically “future serviced development”) on …

Continue Reading Important Developments In Canada (No, Not That!): Supreme Court Hears Argument In “Takings” Case

Screenshot 2022-02-15 at 07-42-11 Eminent Domain Reports - Publications IRWA

Check this out: the International Right of Way Association’s Real Estate Law Committee produces twice-a-year reports “which contain summaries of eminent domain decisions and legislation within the United States.” (This is the “international” right of way association, so that last qualifier is important.)

And what is really nice is that they make the report available. 

We’re posting it here because we’re one of the co-authors. The laboring oars on this are really Brad Kuhn and Jullian Friess Leivas (both from the Nossaman firm), but they were kind enough to ask me for some input.

Brad and Jillian wrote up more at the California Eminent Domain Report.

The report is short, and doesn’t have a lot of fluff. Just what you wanted.Continue Reading IRWA’s Summary Of Major Eminent Domain Cases & Legislation (June-Dec 2021)

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After a two-year absence in which we went remote, in the last week of last month (our usual spot on the calendar, between the playoffs and Super Bowl), we once again met in-person for the American Law Institute-CLE Eminent Domain and Land Valuation Litigation Conference.

Approximately 200 lawyers, judges, legal scholars, appraisers, law students, right-of-way agents, relocation experts, property owners, and other related professionals gathered in-person–yes, in-person–at the Scottsdale (Arizona) Resort at McCormick Ranch, to get reacquainted, learn stuff, and renew ties last made in-person in Nashville in 2020. In addition to the live attendance, we also welcomed about 50 remote colleagues, who joined the live webstream.

This was the 39th edition of the Conference, one of the most-established and successful conferences in the ALI-CLE stable of programs.

To those who joined us – thank you. This conference reminded us of why this program is so…

Continue Reading 2022 ALI-CLE Eminent Domain And Land Valuation Litigation Conference, Scottsdale: You Should Have Been There!

Before we go further into the Ninth Circuit’s opinion in Ballinger v. City of Oakland, No. 19-16-550 (Feb. 2, 2022), this disclosure: this is a case in which our law firm represents the property owners. So take that into account as you read our take on the case.

The Ballingers own a home in Oakland, California, and were called away for a year while on active duty with the military. They rented their home with a one-year lease. Oakland makes property owners who want to move back into their own homes at the expiration of a lease to pay tenants a “relocation fee.” The Ballingers paid $6.5k to the tenant for the relocation fee, and sued the city for, inter alia, a physical taking of their money, and for an unconstitutional exaction of their home. The district court dismissed for failure to state a claim because the …

Continue Reading CA9: We Reject Legislative/Administrative Distinction In Exactions, But City Requirement That Owners Pay Tenant To Move Back Into Their Home Isn’t A Taking

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As usual, Michael Berger and Jim Burling kept the room filled on a Saturday morning, and informed and entertained.

After their presentations, and the National Forum at which practitioners from around the country briefed us all about the issues in their respective jurisdictions, we wrapped up the 39th ALI-CLE Eminent Domain & Land Valuation Litigation Conference.

We’ll have a more in-depth after-action report on the Conference next week for those of you who could not attend in-person (we had a very successful meeting, but nonetheless missed you), but for now, we ask this: reserve the time on your 2023 calendars now. The date? The usual dates in late January or early February 2023, between the playoffs and Super Bowl. 

ALI-CLE is in the final stages of securing a venue, and when it becomes official we’ll announce it here and elsewhere.

Stay tuned.Continue Reading That’s A Wrap For The 39th ALI-CLE Eminent Domain & Land Valuation Litigation Conference. See You At The 40th In 2023 In 2023 In …