News & Analysis as of

Sixth Circuit Rejects Clean Air Act Preemption of State Common Law Claims: Four Things to Know

In two decisions released on November 2, 2015, Merrick, et al. v. Diageo Americas Supply, Inc. and Little et al. v. Louisville Gas & Electric Company; PPL Corporation, the U. S. Court of Appeals for the Sixth Circuit...more

Surplus Proceeds Available for Foreclosure Purchasers Who Face "Holdover" Homeowners

Surplus proceeds resulting from a residential foreclosure sale are rare. By nature, homeowners facing foreclosure are generally underwater on their mortgage, and have not been able (or willing) to achieve a short sale. But...more

New Jersey Supreme Court Reaffirms Restatement Approach to Nuisance, Trespass

In a ruling that further delineates the threshold for maintaining private nuisance and trespass claims in New Jersey, the state’s highest court held that defendant landowners were not liable for contamination to neighboring...more

Drone users to lawmakers: ‘Should I stay or should I go?’

California Governor Jerry Brown has just vetoed drone legislation passed by the California legislature that relates to a matter of significant interest to the real estate sector: Flight-level restrictions....more

Declaring War on Drones Part Deux: Is a Drone Operator/Owner Liable for Trespassing?

Last month Tilting discussed whether Daisy Duke and her Uncle Jesse faced civil or criminal liability for shooting down Boss Hogg’s drone trespassing over their property. To recap: Daisy Duke was sunbathing by her Uncle...more

It’s Not Their Fault: New Jersey Supreme Court Upholds Dismissal of Nuisance and Trespass Claims in Environmental Context

The New Jersey Supreme Court recently clarified the elements needed to sustain a claim for nuisance and trespass in the environmental context. Generally, plaintiffs assert claims under common law such as nuisance and...more

Criminal Defense for Burlgary

And To Think the “Hamburglar” Looks So Harmless - As a criminal defense attorney in Arizona I have found that modern burglary statutes are some of the least-understood crimes on the books. Potential clients commonly ask...more

California Senate Sends Bill To Governor Restricting Use Of Drones On Private Property

The California Senate has sent a bill to Governor Brown that, if signed, would create trespass liability for those flying unmanned aircraft systems (“UAS”), more commonly known as drones, lower than 350 feet above private...more

You Own the Oil. Do You Own the Rock?

Riddle: What’s the difference between a hydrocarbon molecule and the underground structure which the molecule inhabits? Answer: In Texas, you can own one and not the other, according to Lightning Oil Co. v. Anadarko E&P...more

Texas Anti-SLAPP Law: The Expanding Scope of the Texas Citizen’s Participation Act – Part 5 (the conclusion)

To conclude the series, we look at one more opinion — Serafine v. Blunt, No. 03-12-00726-CV, 2015 WL 2061922 (Tex. App.—Austin May 1, 2015). This case dealt with a property dispute, but the real interest comes from the...more

Declaring War on Drones: Is it a Crime to Shoot Down a Drone over Your Property?

Trying to avoid the sweltering heat, “Uncle Jesse” Duke was in the garage working on his moonshine operation when he heard a loud shriek in the backyard. He ran to the back to find his niece, Daisy, sunbathing by the pool....more

New Jersey Supreme Court Rejects Broad Expansion of Private Nuisance and Trespass

Action Item: On August 6, 2015, the Supreme Court of New Jersey in Ross v. Lowitz, et al., No. A-101-13 (N.J. Aug. 6, 2015), held that property owners could not prove claims for private nuisance and trespass against the...more

Dust in the Wind

Delta Blue Blueberries filed suit in California against Wilbur-Ellis Company, Semi-Tropic Water Storage District, and Alpine Helicopter Service Inc. for negligence and trespass. (Case No. 39-2015-0032670-CU-NP-STK in the...more

Ninth Circuit Reverses Dismissal of Damages Claim in San Diego Contamination Suit

In a decision that may reopen the door to significant damages in a California soil and groundwater contamination suit, the Ninth Circuit reversed a trial court’s dismissal of the City of San Diego’s restoration and real...more

DuPont Wins Partial Summary Judgment in Drinking Water MDL

An Ohio federal district court gave E.I. DuPont de Nemours and Co. a partial victory in litigation over ammonium perfluorooctanoate (“C-8”) drinking water contamination in Ohio and West Virginia by granting partial summary...more

(US) Limiting the Sky: Is There Space for Drones in Real Estate Law?

Real property is generally conceived of as tangible and two dimensional. We acquire land described by courses and distances in a deed, depicted by lines on a survey. The laws respecting that land are well-formed; most in the...more

Real Property – Court’s Power to Issue Equitable Easements

Lilli Shoen v. Juliet Zacarias - Court of Appeal, Second Appellate District (May 22, 2015) - A trial court has the power to issue an equitable easement authorizing a trespasser to continue her trespass in...more

Real Property, Financial Services & Title Insurance Update: Weeks Ending June 5 & 12, 2015

REAL PROPERTY UPDATE - Lien Priority: claimant’s judgment lien related back to recording of lis pendens and therefore took priority over competing judgment lien obtained after lis pendens but before entry of claimant’s...more

Texas Supreme Court Avoids Answering a Fundamental Question in a Wastewater Disposal Case

One year ago, in the May 2014 issue of the Energy Newsletter, we highlighted the case of Environmental Processing Systems, L.C. v. FPL Farming Ltd., (2015 WL 496336) an important environmental trespass case pending before the...more

Trespass And Other Claims: Ever Wonder If Litigation Is Worth It?

Flyboy Aviation Properties, LLC v. Franck (In re Flyboy Aviation Properties, LLC), 525 B.R. 510 (Bankr. N.D. Ga. 2015) – A chapter 11 debtor operated a small private airport. The debtor and an adjacent landowner had a...more

Texas Supreme Court Holds Plaintiffs Must Prove Lack of Consent in Trespass Suits

Potentially making it more difficult for plaintiffs to prevail on trespass claims in Texas, the Supreme Court of Texas held for the first time that a plaintiff bears the burden of proving the lack of consent in a suit for...more

When Trespasser Becomes Plaintiff

The family of a 9-year-old California boy who survived a fall through a school’s skylight reportedly claims the school district should be held liable for his injuries because it was too easy to get on the school’s roof and...more

Property Owners Denied Class Certification in Halliburton Contamination Suit

Earlier this month, a federal district court in Oklahoma denied class certification to a group of property owners living near a contaminated research facility owned by Halliburton Energy Services, Inc. in Duncan, Oklahoma,...more

Locke Lord QuickStudy: What’s Underground Is Still Up For Grabs in Texas

Since the first oilman drilled the first water disposal well, cases have come through the courts in the U.S. trying to determine what rights each estate owner has, as well as the potential liability attributable to using...more

Injunctive Relief for Building Encroachment. Do I Have to Move the House?

When a land owner mistakenly builds a house or other building or structure that encroaches on a neighbor’s property, what is the remedy? Does the offending land owner have to physically remove the structure from the...more

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