Why the Biden Administration Was Right Earlier This Week to Change Course in the Obamacare Challenge Pending Before the Court

VIKRAM DAVID AMAR

Illinois Law Dean Vikram David Amar comments on an unusual move by the U.S. Solicitor General’s office, sending a letter to the U.S. Supreme Court amending the position of the federal government in a case currently pending before the Court challenging the Affordable Care Act. Dean Amar explains why the arrival of a new administration should generally not trigger such position reversals, but he argues that the unusual circumstances—specifically the “exceptional implausibility” of the government’s prior filings—may justify the government’s action in this instance.

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Clayland Farm Enterprises, LLC v. Talbot County

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-2102

Opinion Date: February 8, 2021

Judge: Floyd

Areas of Law: Constitutional Law, Real Estate & Property Law, Zoning, Planning & Land Use

The Fourth Circuit affirmed the district court's ruling that three local zoning ordinances are constitutional under the Takings Clause and the Due Process Clause, and that Clayland's equitable claims are moot. In this case, Bill No. 1214 reduced the permissible density of residential properties from four units per acre to one unit per two acres and prohibited subdividing any existing parcel into more than one additional lot. Bill No. 1229 established seven tier classifications related to "the type of subdivision and the kind of wastewater treatment system planned for each subdivision type." Bill No. 1257 extended Bill No. 1214's restrictions on Village Center zones (including the decreased density of residential units and the limitations on new subdivisions) until Talbot County "adopt[ed] . . . comprehensive rezoning and land use regulations regarding density . . . pursuant to the County's comprehensive plan." The court concluded that Bill Nos. 1214 and 1257 do not constitute a taking where the balance of the Penn Central factors ultimately favors the County. The court explained that Bill Nos. 1214 and 1257 were public-benefit regulations that did not deprive Clayland of all development potential and—most significantly, and perhaps even decisively—did not divest Clayland of any vested rights. The court also concluded that Bill Nos. 1214, 1257, and 1229 do not constitute a substantive due process violation. Finally, the court concluded that Clayland's equitable claims are moot.

Wirtz v. Specialized Loan Servicing, LLC

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-1084

Opinion Date: February 11, 2021

Judge: Steven M. Colloton

Areas of Law: Real Estate & Property Law

Plaintiff filed suit against Specialized, alleging violations of the Real Estate Settlement Procedures Act (RESPA) and the Minnesota Mortgage Originator and Servicer Licensing Act (MOSLA). The Eighth Circuit previously held that plaintiff failed to establish an essential element of his claim under RESPA, and remanded the case for further proceedings on his claim under the Minnesota statute. On remand, the district court granted summary judgment in favor of Specialized. The Eighth Circuit affirmed the district court's judgment, holding that plaintiff did not present sufficient evidence that he was injured by Specialized's conduct, and thus did not create a genuine dispute of material fact on an element of his state-law claim.

U.S. Bank, N.A. v. White Horse Estates Homeowners Ass'n

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-17033

Opinion Date: February 8, 2021

Judge: Susan Graber

Areas of Law: Banking, Real Estate & Property Law

The Ninth Circuit affirmed the district courts' grants of summary judgment in favor of the HOA in an action brought by the Bank, seeking to set aside the HOA's foreclosure sale of real property in Nevada. The district court held that, because the mortgage savings clause in the applicable covenants, conditions, and restrictions (CC&Rs) did not affect the sale, the sale could not be set aside. Therefore, title vested with SFR Investments, the purchaser at the HOA sale. The panel predicted that the Nevada Supreme Court would adhere to its unpublished decisions, and hold that a mortgage-savings clause, by itself, did not constitute unfairness that affects a sale. The panel held that the clause was void as a matter of Nevada law, because it plainly conflicted with Nev. Rev. Stat. 116.3116(2), which required liens for unpaid assessments to have superpriority status, and Nev. Rev. Stat. 116.1104, which provided that the priorities cannot be modified by agreement. The panel also held that the mortgage-savings clause was void under the terms of the CC&Rs themselves. The panel explained that the Bank did not introduce any evidence whatsoever in this case that the mortgage-savings clause affected this sale. The panel rejected the Bank's remaining arguments and concluded that no unfairness arose from the HOA's processing of payments. Finally, the notice at issue did not violate due process.

Sharifi v. United States

Court: US Court of Appeals for the Federal Circuit

Docket: 19-2382

Opinion Date: February 10, 2021

Judge: O'Malley

Areas of Law: Constitutional Law, International Law, Military Law, Real Estate & Property Law

Sharifi alleges the U.S. Army took his land when it built Combat Outpost Millet in Afghanistan in 2010. The government asserted that Sharifi’s Fifth Amendment complaint was “vague and ambiguous” because it did not specifically identify the property interest that the government allegedly took, that Sharifi had not provided a legal description of the land, a deed, or other documents that would allow the government to identify the location. The Claims Court instructed Sharifi to file an amended complaint. Sharifi alleged that government records, verified by the District Governor of Arghandab, showed that his grandfather owned the land on which the Army built COP Millet: Ownership of the land passed to Sharifi and his siblings, who subdivided the land by a 2004 inheritance agreement. The government submitted six declarations, including several witness declarations and an expert declaration on Afghan law. The Claims Court dismissed Sharifi’s amended complaint for failure to show a cognizable property interest. The Federal Circuit affirmed. The government records attached to Sharifi’s amended complaint and the 2004 inheritance agreement do not constitute proof of land ownership under the laws of Afghanistan. Even accepting as true all factual allegations in Sharifi’s amended complaint, the amended complaint does not contain sufficient facts to state a plausible takings claim.

Asher v. McMillan

Court: Idaho Supreme Court - Civil

Docket: 47684

Opinion Date: February 9, 2021

Judge: Brody

Areas of Law: Contracts, Landlord - Tenant, Real Estate & Property Law

Lester McMillan bought a dilapidated house that Terry Asher and Pamela Kitchens (“the Ashers”) planned to repair. The parties orally agreed that the Ashers would perform certain repairs to make the house livable, rent the house from McMillan for five years, and then buy the house from McMillan. For reasons that were disputed, the sale was never consummated. However, the Ashers continued to live in the house, make improvements to the property, and pay monthly rent to McMillan. After relations between the parties soured, McMillan sued to evict the Ashers. The Ashers then sued McMillan for specific performance of the oral contract to convey or, in the alternative, restitution for the value of the improvements. The district court found the oral contract was unenforceable, but awarded the Ashers restitution for certain improvements. McMillan appealed, alleging the district court erred in determining that he was unjustly enriched and in determining the amount of restitution. The Idaho Supreme Court found the district court did not err, except for a minor miscalculation of the amount of restitution.

Moore v. Robinson Environmental, Inc.

Court: Minnesota Supreme Court

Docket: A19-0668

Opinion Date: February 3, 2021

Judge: Lorie Skjerven Gildea

Areas of Law: Personal Injury, Real Estate & Property Law

The Supreme Court affirmed the judgment of the district court dismissing Plaintiff's complaint alleging that he witnessed Defendant's workers violate safety protocols resulting in contamination of his home, holding that Minn. Stat. 541.051 barred Plaintiff's claims. Plaintiff hired Defendant to remove a broken boiler that was insulated with asbestos and his asbestos pipe insulation. On March 12, 2014, a report confirmed Plaintiff's allegation that Defendant's workers tracked asbestos through Plaintiff's home. Plaintiff, however, did not sue Defendant until April 20, 2018. The district court dismissed the complaint on the grounds that the two-year statute of limitations in section 541.051 barred Plaintiff's claims. The court of appeals affirmed. The Supreme Court affirmed, holding that Plaintiff's damages arose out of the defective and unsafe condition of an improvement to real property, and therefore, the two-year statute of limitations in section 541.051, subdivision 1(a) barred Plaintiff's claims.

Bank of New York Mellon Trust Co. v. Sulejmanagic

Court: Oregon Supreme Court

Docket: S067155

Opinion Date: February 11, 2021

Judge: Nelson

Areas of Law: Real Estate & Property Law

Plaintiff Bank of New York Mellon Trust Company (bank) held a deed of trust to the a condominium unit, while defendant Tanglewood Hills Condominium Association (Tanglewood) had a lien for condominium assessments that had not been paid by the owner. Although the bank’s lien would ordinarily take priority, Tanglewood contended that its lien gained priority under ORS 100.450(7), because the bank “ha[d] not initiated” a foreclosure action during a 90-day notice period prescribed by that statute. The trial court rejected Tanglewood’s argument and granted summary judgment for the bank. The Court of Appeals affirmed. The Oregon Supreme Court agreed with Tanglewood that a condominium association’s notice under ORS 100.450(7)(a) triggered an obligation on a first lienholder to act within 90 days, or the condominium association’s lien will take priority. In this case, the bank did not act before the 90 days expired. Nor could the bank rely on its previously filed foreclosure action, as that action had been dismissed by general judgment prior to the notice, and it remained dismissed throughout the entire 90-day period. Once the 90 days elapsed without the case being reopened or a new foreclosure action being filed, Tanglewood was granted priority over the bank’s interest by operation of ORS 100.450(7). The decision of the Court of Appeals was reversed. The judgment of the circuit court was reversed, and the case was remanded to the circuit court for further proceedings.

Hamen v. Hamlin County

Court: South Dakota Supreme Court

Citation: 2021 S.D. 7

Opinion Date: February 10, 2021

Judge: Jensen

Areas of Law: Real Estate & Property Law

The Supreme Court reversed the decision of the circuit court denying summary judgment on Plaintiffs' inverse condemnation claim and directed the entry of summary judgment dismissing this the Hamlin County Sheriff and Hamlin County, and, as to Plaintiffs' 42 U.S.C. 1983 claims, reversed the circuit court's denial of summary judgment on the Sheriff's qualified immunity on the excessive force claim, holding that the circuit court erred in part. Plaintiffs filed a complaint against the County, Sheriff, and other deputies after their mobile home was damaged during the arrest of their son. Plaintiffs sought compensation from the defendants for inverse condemnation and filed a separate claim for deprivation of constitutional rights under section 1983. The circuit court granted summary judgment to the County but denied the other summary judgment motions. The Supreme Court reversed in part, holding (1) damage caused by law enforcement during the arrest of an alleged fleeing felon is not a compensable taking under S.D. Const. art. VI, 13; and (2) the Sheriff was entitled to qualified immunity on Plaintiffs' section 1983 claim.

Holborn v. Deuel County Board of Adjustment

Court: South Dakota Supreme Court

Citation: 2021 S.D. 6

Opinion Date: February 10, 2021

Judge: Jensen

Areas of Law: Environmental Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

The Supreme Court affirmed in part and reversed in part the judgment of the circuit court reversing the decision of the Deuel County Board of Adjustment granting special exception permits (SEP) to Deuel Harvest Wind Energy, LLC and Deuel Harvest Wind Energy South, LLC (Deuel Harvest) to develop two wind energy systems in the County, holding that the circuit court erred by invalidating the votes of two Board members. Following a public hearing, the Board unanimously approved the SEPs. Appellees, several residents of Deuel County and neighboring counties, petitioned for a writ of certiorari, asserting that several Board members had interests or biases disqualifying them from considering the permits. The circuit court invalidated the votes of two Board members due to disqualifying interests and overturned the Board's approval of the SEPs. The Supreme Court reversed in part and reinstated the Board's unanimous vote in approving the SEPs, holding that the circuit court erred in disqualifying the two members from voting on the SEPs.

Wings As Eagles Ministries, Inc. v. Oglala Lakota County

Court: South Dakota Supreme Court

Citation: INC. v. OGLALA LAKOTA COUNTY, 2021 S.D. 8

Opinion Date: February 10, 2021

Judge: Salter

Areas of Law: Government & Administrative Law, Real Estate & Property Law, Tax Law

The Supreme Court affirmed the decision of the circuit court affirming the decision of the Oglala Lakota County Commission denying Wings as Eagles Ministries, Inc.'s petition seeking an abatement of its property taxes for 2014 and 2015, holding that the circuit court did not err. Wings applied for property tax exempt status for the 2014 and 2015 tax years. The applications were denied and became final determinations of the property's exempt status for those years. Wings then filed its abatement petition, which the Commission denied. The circuit court affirmed, concluding that Wings was unable to meet the threshold eligibility element for an abatement because the final determinations denying exempt status conclusively established that Wings was not exempt for the 2014 and 2015 tax years. The Supreme Court affirmed, holding (1) the circuit court did not err when it concluded that Wings did not qualify for an abatement under S.D. Codified Laws 10-18-1(3); and (2) Wings' estoppel argument was unreviewable on appeal.

Brumley v. McDuff

Court: Supreme Court of Texas

Docket: 19-0365

Opinion Date: February 5, 2021

Judge: Bland

Areas of Law: Real Estate & Property Law

In this property dispute between neighboring landowners, the Supreme Court reversed the decision of the court of appeals reversing the judgment of the trial court finding that Plaintiffs held peaceful and adverse possession of the disputed property for the requisite time, holding that Plaintiffs' pleading alleged a claim of trespass to try title by adverse possession. In reversing, the court of appeals ruled that the pleadings did not support the judgment because Plaintiffs described their claim as a quiet title action rather than a trespass to try title action. The Supreme Court reversed, holding (1) Plaintiffs' pleadings supported the submission of adverse possession to the jury; and (2) in substance and effect, Plaintiffs sued for title to the disputed property, and in denominated their claim as an "action to quiet title," Plaintiffs did not nullify the substance of their adverse-possession actions.