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Posts Tagged ‘property’

Unit Owners Denied Easement To Access Community Dock

Posted on: February 22nd, 2018

By: Michael G. Kouskoutis

In Goldman v. Lustig, a Florida townhome unit owner (Lustig) sought an injunction to prohibit neighboring unit owners from crossing his yard to access a dock located behind his unit.  The unit owners had rights to the dock pursuant to an assignment between Lustig and the Association, in which Lustig severed his riparian rights for the benefit of neighboring unit owners.  Lustig conceded that portions of the dock belonged to all unit owners and that the only means to access the shared dock was by a pier located in his backyard, yet still argued that unit owners had no right to enter his property.

The unit owners urged the court to recognize an implied easement by necessity, which grants an easement over another’s land “where there is no other reasonable and practicable way of egress, or ingress” to shared property.  In siding with Lustig, the court stated that “an easement by necessity requires a showing of an absolute necessity.”  The court reasoned that, since the unit owners live on waterfront property, “they can find an alternate means of accessing the dock, such as by constructing their own access pier, which would be a ‘reasonable and practicable way of egress, or ingress.’”

Community associations should be careful not to overlook issues of access when providing shared property, and should be mindful of the onerous burden courts may impose prior to granting implied easements.

If you have any questions or would like more information, please contact Michael Kouskoutis at [email protected].

Temporary Flooding May Give Rise to a Takings Claim

Posted on: January 2nd, 2013

By: Ali Sabzevari

A fundamental part of our Takings Clause jurisprudence holds that when the Government physically takes possession of an interest in property for some public purpose, it has a duty to compensate the former owner.  There is a multitude of ways in which government actions or regulations may give rise to Takings Clause liability.  Recently, however, the United States Supreme Court directly addressed the issue of whether government-caused temporary flooding might amount to a compensable taking.

On December 4, 2012, the United States Supreme Court issued a decision, Arkansas Game & Fish Comm’n v. United States, which instructed lower courts not to be deterred from finding that government-caused temporary flooding may result in a taking under the Fifth Amendment of the U.S. Constitution.

The Supreme Court held that “government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.”  By doing so, the Court reversed a Federal Circuit decision which had found that flood conditions needed to be “permanent or inevitably recurring” before the resulting damage would constitute a taking under the Fifth Amendment.

Although Supreme Court precedent had already established that government-induced flooding could constitute a taking, and that a taking need not be permanent to be compensable, under the guise of Arkansas Game & Fish Comm’n, government-caused recurrent floodings, even if of limited duration, may give rise to Takings Clause liability.

Despite ultimately remanding the case to determine whether a taking had occurred, the Supreme Court, in emphasizing the case-by-case approach required to complete this task, highlighted several relevant factors to consider:

1)      Time or duration;

2)      Severity of the government interference;

3)      The degree to which the intrusion is intended or is the foreseeable result of authorized  governmental action;

4)      The character of the land at issue; and

5)      The owner’s reasonable investment-backed expectations regarding the land’s use.

Looking ahead, local governments should be cognizant that a temporary government-caused flooding may give rise to Takings Clause liability.

Georgia Supreme Court Expands Diminution in Value Analysis to All Property Damage Claims

Posted on: July 9th, 2012

By: Seth Kirby

For the last decade, Georgia auto insurers have been required to compensate accident victims for the inherent loss in value that a car suffers when it has been in an accident.  This loss is known as diminution in value.  Essentially, it is a recognition that a car that has been in an accident, even if it has been expertly repaired, suffers from a stigma that will affect its value on resale.  Georgia courts determined that the law requires an accident victim to be made whole, so it was not sufficient to simply pay for the repairs necessitated by an accident. 

In the context of an automobile, the logic of this rule is easy to understand.  If presented with two used cars that were identical in features, mileage and overall condition, but one had previously been in an accident while the other had not, any rational consumer would purchase the pristine car.  The only way to overcome this damage stigma, would be a reduction in price for the repaired vehicle. 

In Royal Capital Development LLC, v. Maryland Casualty Company, The Georgia Supreme Court recently announced that diminution in value must be considered in the adjustment of all property damage claims.  As a result, insurers must now conduct an analysis to determine whether any type of property damage results in a stigma to the property which would require compensation in addition to repair costs to make the property owner whole. 

Unlike automobiles, it does not appear that every property damage claim will result in additional compensation for diminution in value.  For instance, hail damage that results in the total replacement of a 20-year-old roof should be viewed as a benefit to the insured as the roof was nearing the end of its normal life.  In contrast, however, water or fire damage repairs could conceivably create a stigma that negatively impacts the value of the property.  In any event, Royal Capital presents a significant new requirement in the adjustment of property claims.