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Quote of the Day - No one is going to expropriate your property.
Louisiana Begins Its Way Toward Recovery Through CondemndationNew London, Connecticut condemned a private home on private property and gave it to a commercial developer to build a commercial hotel and retail development, as part of the city's attempt to stem the tide of blighted property within its borders. After a series of challenges, the United States Supreme Court approved the condemnation in Kelo v. New London. Now, New Orleans, Louisiana is attempting to do something similar, but after the state adopted a series of "Kelo amendments" to its Constitution to prevent what at least a majority of Louisianians saw as abuse of the government's power of eminent domain, called "expropriation" in the French-based Napoleonic Code Louisiana uses for its style of government (no matter what it's called, expropriation still requires just compensation, despite what Wikipedia incorrectly says). Those three amendments, named Amendments 4, 5 and 6 limit the state's condemnation power. The first reduces the level of compensation paid for taking private property for hurricane protection projects, but carves out an exception for buildings in a president-declared emergency area, allowing higher compensation for the three years following. Amendment 5 prohibits the taking of private property "for the predominant use" by another private person or business. The final Amendment 5 - the one relevant to this discussion - forces the government to either hold the property in public trust for 30 years or offer seized property back to the original owner or his heirs before trying to sell it on the open market. With that backdrop, let's get to the facts. Joseph Burgess Jr. and his wife Kittoria Johnson apparently owned two vacant lots on Clouet Street in New Orleans, within the area devastated by Hurricane Katrina. Mr. Burgess is dead, but his wife is alive. Their son stands to inheirit the properties. The New Orleans Redevelopment Authority earlier demolished what was left of the homes on the property for public safety reasons, not an issue today. The problem now arises from Amendment 6. The two properties have outstanding tax liens of some $37,500 (more than their fair market value) that have remained unpaid for years, three health violations and ten citations for high grass, all in violation of city ordinances. The NOLA Redevelopment Authority moved to expropriate the land, wipe out the tax leins, cure the violations and citations and then it transferred the property to Habitat for Humanity. The NOLARA did not offer the property to either Mrs. Johnson or their son, arguing that to do so was not required where the condemnation was based on blight and in any event, futile since they have not paid the taxes or cured the code enforcement problems. This case is the first challenge to the Amendments, and there are some 1,500 other properties in the city awaiting similar treatment. The New Orleans Civil Court appointed an attorney for Mr. Burgess the third, but the record is not clear whether Mrs. Johnson has a property interest or was represented by an attorney. In any event, the Redevelopment Agency was represented by counsel, and the two attorneys argued the pros and cons of the situation. The Redevelopment Agency attorneys argued that Louisiana lawmakers never intended for the latter amendment to apply to blight takings. They claimed it would be an "absurd" proposition to offer the property back to owners who let the property fester. Judge Madeleine Landrieu sided with the Redevelopment Agency. Local law professors disagree over whether the judge was right, but one thing is certain: the law won't be settled until the Louisana Supreme Court steps in to clarify the law, which will likely take several years. In the meantime, one legislator is introducing another Amendment to get to the point first. Senator Edwin Murray, D-New Orleans, seeks to change Amendment 5 so it would not require the right of first refusal to the prior owner in blighted situations. The orginal amendment's drafter, Peppi Bruneau, a former legislator, said the Amendment already deals with that issue and should not stand in the way of blight remediation. He simply tried to prevent Kelo-style takings. "This was for economic development, not for blighted property or anything," Bruneau said. "That was not the purpose at all. It really just dealt with government taking property and flipping it to someone else who wanted to do business there." Either way, the legislators and voters or the courts will have to weigh in and resolve the inevitable appeal from the good judge's decision. Meanwhile, recovery in New Orleans gets one more roadblock. In A Commercial Lease Transaction, Brokers Owe No Cross Duty To DiscloseWhen you're leasing commercial property, it's helpful to know who's on your side. Especially when it comes to leasing agents, as we just found out in the case of Blickman Turkus, LP v. MF Downtown Sunnydale, LLC. Handspring wanted to rent space, and perhaps not surprising, MF Downtown Sunnydale had commercial space available. Blickman was Handspring's leasing agent. MF Sunnydale owned the land, and apparently contracted with Mozart Development to construct rentable space on the property on a "build to suit" basis for two buildings. Mozart was represented in the lease transaction by a leasing agent, Commercial Property Services. CPS was to be paid its commission by Mozart in two halves: first when the lease was signed and the other half when the rent started. Before we get much further, let me point out one particular word above: "commercial." Quite unlike residential leasing, the law considers that commercial leases do not deserve the same type of protection that consumer leases need. In fact, the law in California considers commercial landlords and tenants sophisticated and knowledgeable. I also need to add a couple of other facts. No contractual relationship existed between Blickman, on the one hand, and either CPS or Mozart, on the other hand. So, then, with that warning and information, perhaps the result of the case won't surprise you. Apparently the tenant Handspring came to the landlord Mozart through a leasing agent, Blickman Turkus, who negotiated the lease. Handspring signed the leases, and Mozart started building. Mozart paid the first half of the commission due to both CPS and Blickman. Mozart received and reviewed Handspring's financial data, and satisfied, started construction on the two buildings. During the lease negotiations, Blickman became aware that Handspring's financial condition was precarious and the two considered Handspring's exit strategies to get out of the leases. Blickman, however, never told either CPS, Mozart or MF Downtown Sunnydale of Handspring's financial problems. Ultimately, Handspring was not able to move in, never paid rent and then terminated the leases. Mozart refused to pay the second half of the commission to either CPS or Blickman. Mozart also sought repayment of the $850,873.22 it paid Blickman for the first half of the commission for procuring the lease with Handspring. In the case, Mozart argued that Blickman had a duty to disclose Handspring's precarious financial condition, which Blickman denied and argued it had no obligation to do since it was not Mozart's agent, but instead was Handspring's agent. The appellate court agreed with Blickman's position, ruling that without a direct agency relationship between Blickman and Mozart, Blickman owed no duty to disclose Handspring's financial condition. The court agreed with Mozart that since Handspring never paid rent, the second half of the rent never came due to Blickman. The court also refused to award either side its attorneys fees and costs. While the result of the case was a wash, there's at least one worthwhile lesson to take from it. Contrary to the obligations of real estate brokers in residential transactions, a commercial broker for a party on one side of a transaction does not owe a duty to disclose to the other party. A Lesson Contractors Still Need To Learn: You Must Have A License To WorkSooner or later, courts and contractors are going to get a clue. First, there's California Business and Professions Code section 7031, which requires contractors to be licensed at all times when engaged in, surprising enough, construction. As if that requirement weren't enough, there's an older California Supreme Court case that ruled when a contractor isn't licensed, it can't collect payment. That case, Hydrotech Systems, Ltd. v. Oasis Waterpark, came out in 1991, just a few years after I started to practice. It must have made a big impression on me at the time, because I've never forgotten it. I was surprised that the court would deny a contractor recovery of more than $1 million it spent building a wave machine in the waterpark out in the desert. The court, however, saw its ruling as upholding the legislature's licensing requirement to protect citizens of California. It was a harsh result meant to teach a lesson, apparently one that still hasn't hit some corners of California. Take, for example, the recent case of Great West Contractors v. WSS Industrial Construction. WSS Industrial applied for a contractor's license in August 2001 and then submitted a subcontract bid to Great West. In October, it sent to Great West the first of two invoices. Finally, in December 2001, the California Contractor's License Board approved WSS Industrial's contractor's license. Great West however, didn't pay WSS Industrial's invoices for $91,000. WSS sued, and the trial court ruled that WSS had substantially complied with the state's contracting laws, and the jury awarded a verdict in favor of WSS and against Great West for the $91,000. Great West appealed. The appellate court reversed the ruling on the basis that WSS had not complied with California's Construction Services Licensing Law, and barred any recovery by WSS. The court said, "For the past 50 years, it has been held that 'courts may not resort to equitable considerations in defiance of section 7031.' [citations omitted] That is because the statute 'represents a legislative determination that the importance of deterring unlicensed persons from engaging in the contracting business outweighs any harshness between the parties ... .' " It's been 50 years, and we're apparently still working on this concept. Sooner or later, you'd think we'd get it. When Grandma Goes To CourtAn Apocryphal Tale To Demonstrate Why An Attorney Won't Ask A Question Without First Knowing The AnswerIn a trial, a Southern small-town prosecuting attorney called his first witness, an elderly woman to the stand. He approached her and asked, "Mrs. Jones, do you know me?" She responded, "Why, yes, I do know you, Mr. Williams. I've known you since you were a boy, and frankly, you've been a big dissapointment to me. You lie, you cheat on your wife, and you manipulate people and talk about them behind their backs. You think you're a big shot when you haven't the brains to realize you'll never amount to anything more than a two-bit paper pusher. Yes, I know you." The lawyer was stunned. Not knowing what else to do, he pointed across the room and asked, "Mrs. Jones, do you know the defense attorney?" She again replied, "Why yes I do. I've known Mr. Bradley since he was a youngster. too. He's lazy, bigoted, and he has a drinking problem. He can't build a normal relationship with anyone, and his law practice is one of the worst in the entire state. Not to mention he cheated on his wife with three different women. One of them was your wife. Yes, I know him." The defense attorney nearly died. The judge asked both counselors to approach the bench and in a very quiet voice said, "If either of you idiots ask her if she knows me, I'll send you both to the electric chair." Hat tip to my son, Michel Ayer, who forwarded this joke to me. Lawyer 2 Lawyer Internet Radio Discusses Free Case LawThe legal publishing market is a nearly $5 billion business. Apart from the main players, others have taken case law into the public domain, calling it free case law, which allows attorneys, legal scholars, and the general public to have access to decisions for state & federal courts and the U.S. Supreme Court. Please join me and my fellow Law.com blogger, Bob Ambrogi, as we discuss this hot topic with the experts: Professor Thomas F. Bruce, Director of the Legal Information Institute at Cornell University Law School, Carl Malamud, founder of Public.Resouce.org and Andy Martens, Senior Vice President of New Product Development, from Thomson West. Please join us as we explore the controvesry over who is entitled to access these public records and at what cost. 
Downstream Landowners Battle Upstream Landowners For Water RightsWater is a precious resource in California, as it is in most western states. We guard it fiercely, and range wars have started over it. Where anarchy once existed, the Water Commission Act resolved - for the most part. Water law in California is mostly settled, but there was one remaining question answered earlier this month that may likely see one more appeal to the California Supreme Court. Can a downstream landowner obtain a prescriptive rights to water superior to the upstream owner? Before I relate the answer to that question, it would be helpful to first understand the context of the question. In eastern Fresno County, the Brewers bought land in 1979, which was serviced by a spring a mile away on other property owned by the Murphys. Later in 2001, the State Regional Water Quality Control Board issued a permit allowing the Brewers to appropriate the water from the Murphy spring. Those who follow water law quickly picked up on the year of purchase and the year the permit was granted. Both are post-1913. A pre-1914 water appropriation is usually the only way Californians can establish water rights. Until now. Given this court opinion, Californians can obtain prescriptive water rights through adverse possession. To establish this right, the person making the claim must show that that the use of the water is (1) actual, (2) open and notorious, (3) hostile and adverse to the original owner, (4) continuous and uninterrupted, (5) under a claim of right, (6) for the statutory period of five years. Here, the Brewers met all five requirements. They established point number five by reason of the SWRCB permit. Note, however, that you cannot make a claim for adverse possession against the government. This method of appropriating water without a pre-1914 existing water right applies only between private parties on both sides. Just Call Me Mr. NovemberThere are calendars for firefighters and calendars for pin-ups. And just in time for my birthday today, there are calendars for James Madison University, where they featured yours truly as Mr. November. Don't worry, though, that last link is safe to open at work, and just about anywhere else.Remembering Marilyn HamptonAt my Mother's memorial service, my youngest brother Scott gave the following rememberance, which I thought was worth posting for those that know any member of our family: First, on behalf of my family, I would like to extend our sincere appreciation to each of you for your kindness, thoughts and prayers, and for being here today to remember and celebrate the life of our mother and grandmother, Marilyn Hampton. We would also like to thank Father Angelica, Reverend Lederhouse, the organist, Bruce Lederhouse, Mr. Lewis Masson for playing the bagpipes, the women of the church for making possible the reception after the service today, as well as the entire Church of the Holy Spirit family. On a personal note, I would also like to take this opportunity to thank my wife JoAnn and my daughters, Sarah and Jennifer for their love, help and incredible support during this time. For those of you who do not know me, I am Scott Williams, Marilyn's youngest son. My two older brothers, Todd and Craig are also here with their families. For those of you who knew my mother well, you already know who we are, where we live, what we do for a living, and most likely our favorite foods and colors! I say that in jest, but that is really a reflection of a very, very important part of my mother's life... her family. She was an extremely proud mother and grandmother whose love of family was second only to her very strong faith and unwavering belief in God and his son, Jesus Christ as our lord and savior. We have many, many fond memories of our mother growing up. She always made sure that we had new clothes for school as well as for church and Sunday school. What you may not know is that, although we sincerely appreciated that, the trip to the department store was a dreaded event as it meant that my mother might see someone that she knew there, and an hour of shopping could easily turn into 2 hours once she was done visiting. Although we may not have realized or appreciated it when we were young, this was another very important and admirable quality of my mother - her many friendships and unending ability and the joy she took in making time to talk or correspond with family and friends over the years. This is something that we could all learn from in this day of fast paced, hectic and busy lives with what can seem to be little time for what are often the most important things in life once you slow down to realize it. Another fond memory we have is the traditions that were so important to my mother, especially birthdays and holidays. She loved to tastefully decorate our home for each holiday and to celebrate and recognize these occasions with many family traditions including, for example, allowing me to dress up in a cowboy outfit for my birthday party - I believe it was my 16th birthday, decorating the Christmas tree with special ornaments that we had made or were passed down in our family, going to see fireworks with my grandfather on the 4th of July, which was also his birthday, and receiving or giving special hand selected cards for any occasion. As many of you may know, my mother did not drink, smoke, gamble, or surf the web although she did have a couple significant vices - talking and buying or cards and stationery. She did not own a computer or a cell phone, so the greatest invention of the modern era for my mother was the introduction of unlimited long distance calling at one low price. Although I believe the rising cost of stamps may have offset some of her savings. She loved to send cards, notes on special stationary and write letters to friends and family just to let them know that she was thinking of them or to recognize their birthday, anniversary, or other special occasions. Many of you I am sure have received such letters, cards or special notes like that from my mother. No matter what the holiday, though, my mother made sure that the true meaning of the holiday was clear, understood and appropriately celebrated. By this I mean that we while would participate in an Easter egg hunt, or exchange presents and receive toys on Christmas morning, we were taught the true meaning and significance of Easter as the resurrection and ascension of our lord Jesus Christ, or Christmas as the birth of Jesus. Not only were we in church on Easter Sunday or Christmas Eve, but my mother instilled in each of us a strong religious foundation as Christians and a belief in God. She taught us the importance of worshipping in Church, and we participated in Sunday school, church choirs and youth groups. This was an aspect that I believe truly defined my mother as her faith, work as a Sunday school teacher, member and director of choirs, love of music and singing particularly in church choirs, solos or duets with her father, work in women's ministry and organizations, role as a church secretary and many other roles were an extremely important part of her life and gave her great joy. This also served to strengthen her faith as a Christian and what ultimately allowed her to make her decisions in the end without any fear and with an undeniable belief that she would leave her earthly body, but have everlasting life in heaven and I have no doubt whatsoever that she is looking down on us today, signing along with the hymns, and once again healthy and reunited with family and friends who have gone before. As I thought about what to say today and how I could adequately and appropriately reflect on our mother's and grandmother's life and how much we loved, admired, respected and appreciated her, it occurred to me that what better way than to send her one last special card to let here know how we feel, although there is nothing that I am going to say here today that I did not tell her when she was alive. When we were born, you were so proud to be our mother and grandmother, You took care of us, taught us right from wrong and saw to our every need. Could I have chosen the most wonderful mom, I could think of no other. Our values and morals are all reflections of the things in which you so strongly believed. You were a woman of strong faith who took time to appreciate the little things in life. I want to thank you again for your guidance, support, encouragement, advice and love You were a wonderful daughter, mother, grandmother, friend, and loving wife. And I know today that you are joyfully and peacefully looking down upon us from above. Today we are all gathered here to remember and celebrate your life with both joy and some tears You have fought a long and hard battle, but today victory is yours and the battle has been won One day I hope to be able to approach things they way you did, with such peace and without fear But I want you to know that I have always been and will always be proud to be called your son. I love you with all my heart, Your son, Scott
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