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Showing 37 posts from 2015.
AAA Revises Construction Arbitration Rules
The American Arbitration Association (“AAA”) revised its Construction Industry Arbitration Rules and Mediation Procedures (“Rules”) as of July 1, 2015. Many of the changes are designed to streamline the arbitration process, making it more efficient and cost-effective. While there were many noteworthy changes in the rules, we summarize the most significant and far-reaching revised and new rules below. It is important to note that not all the revised or new rules will apply to contracts in effect before the rules took effect, so the following provisions may or may not apply to existing claims. More >
Where the First Amendment and Land Use Meet: Planet Aid v. City of St. Johns
Generally speaking, land use regulations and zoning laws arise from practical and aesthetic concerns and considerations, and are driven by state and local law. However, sometimes a community’s desire to regulate a seemingly minor issue can implicate our most fundamental rights under the Constitution. Last month, we discussed the Supreme Court’s decision in Reed v. Town of Gilbert, which involved an analysis of the First Amendment’s applicability to local sign ordinances. Finding that restricting signage based on the content of the sign was impermissible under the First Amendment, the Supreme Court struck down Gilbert’s ordinance. Commentators have since described this as the “sleeper case” of the Supreme Court’s term, representing a substantial shift in First Amendment jurisprudence. The case has since been used to justify striking down local and state bans on political “robocalls” and panhandling, and could possibly extend to call in to question laws aimed at consumer protection and securities law. Indeed, Reed and the reaches of the First Amendment are currently in the forefront of controversies involving everything from soda labelling, to the rights of topless performers operating in Times Square. More >
Debtors May Want To Take It All Off, But The Supreme Court Says Junior Liens Can’t Be Stripped
It’s not an uncommon sight, especially in light of the burst of the housing bubble in recent years: a debtor in bankruptcy has two mortgages on a property with a fair market value of less than the amount of the senior mortgage. The junior mortgage lien is then wholly underwater, so that creditor would receive nothing from the sale of the property. The question then becomes, can the debtor void those liens in a Chapter 7 bankruptcy proceeding? The Supreme Court, in an increasingly rare show of unanimity, said “No.” More >
Public Improvement Liens on Government-Owned Projects
While prior blog posts have discussed the basics of mechanics liens as they relate to private construction projects, this post addresses public improvement liens on property owned by the state, a subdivision or agency thereof, or by any city, county, urban-county, or charter county government (hereafter collectively “Government Entity”).[1] As one may imagine, while the principle purpose behind the filing of public improvement liens and private mechanics liens is the same (i.e. to ensure payment for labor, materials and/or supplies furnished on the project), perfection and enforcement of public improvement liens on property owned by a Government Entity differs significantly from the perfection and enforcement of mechanic’s liens against privately owned property. More >
Disparate Impact Claims Fair Game under the Fair Housing Act
The United States Supreme Court, in a five-to-four decision in June, brought housing discrimination law ever-so-slightly more in line with Title VII of the Civil Rights Act of 1964 (“Title VII”) by holding that claims of disparate impact are cognizable under the Fair Housing Act (“FHA”). The court took great pains, however, to limit the impact of the holding as well as putting a substantial onus on a plaintiff to prove causal connections between challenged policies and alleged disparities. More >
Inverse Condemnation
Inverse condemnation is a far more complex subject than it may seem at the outset. While condemnation proceedings are initiated by the government to acquire property and pay the owner just compensation, the general rule regarding inverse condemnation is that the owner of the property, and not a government entity, seeks to recover damages for a loss in value of the property as a result of governmental action. There are several avenues from which this type of action can arise, as there are multiple ways property can be affected by government activity. Rather than there being a cut and dried standard for what inverse condemnation looks like, each case involving it arises is based on a set of unique factual circumstances. More >
The Obergefell Decision and Property Considerations for Married Same-Sex Couples
In Obergefell v. Hodges, the United States Supreme Court, in a 5-4 opinion, determined that prohibitions on same-sex marriage are an unconstitutional infringement of Fourteenth Amendment rights. This decision throws the doors open for same-sex marriages, affording same-sex married couples the same rights and privileges only enjoyed by opposite-sex couples until recently. This expansion of marriage allows same-sex couples to take advantage of certain legal benefits, and property law is no exception. Same-sex married couples may now hold property in a tenancy by the entirety, a form of title available exclusively to married couples owning together. More >
The Newest Sign for Some Sign Ordinances: Stop
Sign ordinances and regulations are a fixture of city and county zoning and land use regulations, designed to prevent unattractive clutter from obstructing the public view. In creating these regulations, however, local governments run the risk of infringing some of the most basic constitutional rights. Signs inherently include a component of speech, and regulation of the former may unintentionally interfere with the latter. The town of Gilbert, Arizona, learned this lesson the hard way in the recent U.S. Supreme Court decision of Reed v. Town of Gilbert. More >
Beyond the Commercials: Understanding Reverse Mortgages
You have likely seen the commercials for reverse mortgages. While the advertisements urge viewers to “call now to secure you reverse mortgage today” and make them seem risk-free, obtaining a mortgage of this type is a serious decision that should not be made without fully understanding its pros and cons. More >
Bonding off a Private Mechanic’s Lien In Kentucky
In my previous post, I discussed the basics of filing a private mechanic’s lien in Kentucky. Today, the subject will turn to the release of a private mechanic’s lien by execution of a bond. Execution of a bond for release of lien (the “Bond”) provides the owner of property against which a mechanic’s lien has been asserted, or the contractor who contracted with the owner for the provision of labor and/or materials for improvement of the property, an avenue of relief whereby the owner or contractor can have a mechanic’s lien filed against the property released. Utilization of a Bond is particularly helpful when a dispute arises regarding the validity of an asserted mechanic’s lien. More >
