LegalMatch: Real Estate

Dakota Access Pipeline to Halt Construction

Things may begin to quiet down now in North Dakota with regard to the protests against the Dakota Access Pipeline (DAPL). On Tuesday, a judge granted a temporary order requiring the company building the pipeline to halt construction on the portion of the pipeline that traverses underneath the Missouri River.

The Standing Rock Sioux Tribe brought a lawsuit against the Army Corps of Engineers, the federal entity who granted the permits for the multi-state pipeline, for allegedly not sufficiently consulting with the tribe before granting the permits to Dakota Access. As a result of the lack of proper consultation, the pipeline threatens to violate sacred sites that are located outside of the tribe’s reservation on private land belonging to others. It may also pose a health hazard by crossing the river, as the Missouri River is the main water source for everyone living on the reservation.

Water Rights

While the tribe is seeking to ultimately gain a permanent injunction against the pipeline as a whole, the judge is currently only focusing on the portion of the pipeline affecting the river and the tribe’s riparian rights. Anyone who possesses land that contains access to a navigable body of water, such as a large lake or a river, has the right to use water from that body of water. Other people cannot significantly interfere with a landowner’s preexisting use of water, especially if that use of water is for domestic purposes. This means that another person cannot negatively impact the quantity and, perhaps more importantly, the quality of water to which a landowner is accustomed.

The Standing Rock Sioux Tribe has been using the Missouri River, which runs along the border of its reservation, as a source of water since the tribe was relocated to a reservation there in the 1860s. Eventually, the river became the tribe’s only source of water for both commercial and domestic purposes. As a result, the Standing Rock Sioux Tribe has a right to access the water in the river at the same quantity and quality in the future as it does now.

The construction for the pipeline and even the pipeline itself may interfere with the quantity and the quality of the water due to its location upstream from the reservation. If the construction can be done in a manner that will not significantly impact the tribe’s access to water from the Missouri River, then the construction will not interfere with the tribe’s riparian rights to the river.

A Looming Threat

However, DAPL’s existence under the riverbed itself may also pose an unacceptable threat to the tribe’s riparian rights. As previously mentioned, a landowner with riparian rights has the right to water that is of the same quality in the future as it is now without that quality being significantly changed by another person. If the placement of the pipeline creates a threat to the quality of the water present in the river, then the pipeline is impermissible. Oil pipelines have been known to burst and cause irreparable damage to the environment, such as the Exxon Mobil pipeline burst that happened near Mayflower, Arkansas in 2013. For weeks following the Mayflower oil spill, the residents of Mayflower showed signs of exposure to harmful chemicals that were a result of the pipeline burst.

If the proposed DAPL were to burst and cause an oil spill in the Missouri River, then it would significantly harm the quality of the water that the Standing Rock Sioux Tribe depends upon for domestic purposes. If the court finds that the Army Corps of Engineers failed to properly consult with the tribe over its use of and dependency on the water of the Missouri River in light of the potential risk, then the court may side with the tribe and issue a permanent injunction against the construction against the pipeline.

The court may also halt the construction of the Dakota Access pipeline if it determines that the Army Corps of Engineers did not properly evaluate the risk posed by the pipeline before issuing the permits that the company needs in order to lay the pipeline under the riverbed. Alternatively, the court may find that the Army Corps of Engineers did all that was required of it to ensure that the pipeline did not pose an unacceptable risk to the tribe’s riparian rights and that there is nothing wrong with the issuance of the permits.

Any major construction project and the resulting product can impact the rights of nearby landowners to access of clean air and clean water. Thus, it is important for governments to ensure that these rights are not severely impacted through only issuing permits when they have made sure that riparian and air rights are not going to be seriously impacted. If you are concerned that your access to clean air or clean water is being put at risk by a new construction project, contact a real estate lawyer right now.

Authored by Kristen Johnson, LegalMatch Legal Writer

Millennium Tower: Leaning Tower of San Francisco?

What do Joe Montana and Hunter Pence have in common? Other than having professional careers in athletics for San Francisco teams (former hall of fame quarterback for San Francisco 49ers and current all-star outfielder for San Francisco Giants), they both have been residents of the luxury condominium complex in San Francisco known as Millennium Towers.

Millennium Tower is a 60-story luxury building located on Mission Street in San Francisco’s financial district/South of Market (SoMa). It currently holds a spot as one of the top 10 residential buildings in the world according to Worth magazine. Condos sell for anywhere from $1.6 million to north of $10 million.

But now residents are thinking they “sunk” money into a bad investment, because the building is sinking. And not just a little – it’s sunk 16 inches and tilted 2 inches since its opening in 2008. The reason? It’s built on landfill that is prone to liquefying.

While the fact that it’s sinking is certainly cause for concern, Stanford’s seismic center says that there is no actual risk that it will fall over, at least at this time. “The settlement has not significantly affected the seismic performance of the building, and does not represent a safety risk.”

What, if any, legal recourse do the residents of Millennium Tower have?

Depreciation of Home Values

One of the main concerns of the residents at Millennium Tower, as it should be, is whether the value of their luxury condos have depreciated in value. It’s a valid concern. With all the bad press that Millennium Tower is receiving, it is unlikely people are jumping at the opportunity to live in the sinking building, even if experts claim the sinking will not cause the building to topple over. The only hope residents have of selling their luxury condos at this point is at deeply discounted prices to speculators. The condos are not exactly carrying the equity homeowners once believed would make home ownership in Millennium Towers a wise investment.

While a claim that property damage to the building is effectively depreciating the value of their homes, sinking home values in and of itself is not a valid legal claim. It is an unfortunate effect of faulty construction.

Construction Defect

Millennium Tower’s Homeowners Association (HOA) states that they expected the building to settle a maximum of 12 inches over the life of the building. It’s alarming that the building settled four more inches than expected in just eight years.

Geologists are saying that the building is settling because it was built on landfill that has liquefied. In other words, the building was built on dense sand, not bedrock. Additionally, construction for the new Transbay Transit Center next door to the tower is being blamed for movement, but they deny liability.

Construction defect is a legal cause of action that alleges some type of faulty or defective work that occurred during construction that leads to damages. On a project like the Millennium Tower, anybody who had anything to do with the building will be sued. This includes the developer, architect, and construction company that built the tower. All of the parties associated with the project could be personally liable for the damage and any subsequent damage to individual owners. If the construction company, architect, and developer have insurance, the insurance can also be on the hook for damages.

On behalf of all the over 400 homeowners of Millennium Tower, a class action was filed recently against Millennium Partners and the Transbay Joint Powers Authority. Both have denied all liability. The lawsuit cites uneven floors and interior cracks, among other problems caused by improper design and construction defects, causing the building to sink into the landfill beneath it and lean to the northwest. The result of these catastrophic defects is diminution of value to all the units in the building. The lawsuit seeks at least $500 million in damages for the class, which amounts to an average of $1.25 Million for each homeowner.

This is the first step in a legal battle that could last years and will cost millions to resolve. Nevertheless, these cases typically settle. Moreover, the cost of ongoing litigation, which can reach into the hundreds of thousands or even millions in this case, deter many plaintiffs from continuing to litigate. Homeowners of Millennium Tower have relatively deep pockets themselves, so they likely won’t be deterred by mounting legal expenses required to continue to litigate this lawsuit.

Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law

Can a Landlord Demand a Tenant Remove His Pride Flag?

With the recent Orlando mass-shooting in a gay nightclub, many people from the LGBTQ community have wanted to express their solidarity with the families and victims of this horrific event. One Arizona resident, Nano Rodriguez, started flying a rainbow flag at his Tempe rental. He claims that flying the flag gave him comfort and made him feel that he could show his support to the families and victims of the mass shooting.

His landlord was less than pleased by Rodriguez’s display and asked him to take the flag down almost immediately. In a letter addressed to Rodriguez, the landlord stated:

“As stated in [the] terms of your lease…the property is to be kept clean, safe and carefully maintained. I realize this does not refer specifically to flags, so I would like to clarify. In managing this property I have a responsibility for the safety of all tenants and property. The nature of the flag you are displaying could unfortunately promote negative reactions and possibly harmful retaliation to tenants and property.”

Can the Landlord Require Flag Removal?

Most residential leases contain a term which requires the tenant maintain a clean, undamaged rental unit. A tenant who doesn’t comply with the terms of the lease may be found to have breached an essential term and can therefore be evicted if they don’t cure the defect. In other words, if the tenant is notified about a term of the lease which is breached, but does not fix the problem within a specified time period, the tenant can be evicted.

In this case, the landlord is requesting Rodriguez remove the flag because of possible negative reactions. There is no evidence that the flag has caused any mayhem or retaliatory actions by the community. Because the landlord is asking for the flag removal based on anticipated backlash instead of any evidence of actual negative response, Rodriguez should be able to continue flying his pride flag.

Does the Landlord’s Request Violate Tempe’s Anti-Discrimination Ordinance?

The City of Tempe has an anti-discrimination ordinance. The ordinance makes it illegal to discriminate against anyone on the basis of race, age, color, national origin, religion, disability, U.S. Military Veteran status, familial status, gender, sexual orientation, or gender identity. City employees from the Diversity Office investigate complaints of discrimination in employment, public accommodations, and housing. Any person claiming a violation can file a complaint within 45 days from the alleged violation, at which point the Diversity Office will investigate the claim.

Although the anti-discrimination ordinance covers discrimination in housing, it primarily protects housing providers (i.e. landlords). For this reason, it is unlikely the Tempe ordinance will provide much protection to Rodriguez as the tenant.

Landlord’s Action a Violation of Free Expression?

People often believe that a person infringes on their Constitutional right to Free Speech when the person stifles their speech. This is a misnomer.

While it’s true that the First Amendment of the U.S. Constitution guarantees freedom of expression, a person only has a cause of action if their speech is censored or restrained by a government entity. For example, a student who is told by his school that he cannot wear a black armband to protest the war has a valid free speech claim against the school. However, that same person cannot sue his parents for free speech violation if they forbid him from wearing the armband.

Because the landlord is a person, not a government entity, Rodriguez would have no claim against the landlord for violation of his right to free speech.

Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law

Does Affordable Housing Negatively Impact Real Estate?

If you live in a big city, you may have noticed an affordable housing crisis. New York and San Francisco are among the most expensive cities to reside, and the gap between the wealthy and the middle and lower classes is substantial. Many cities that struggle with affordable housing have created affordable housing programs to help bridge the gap between the upper, middle and lower classes.

Baltimore County, for instance, announced plans that will expand affordable rental homes in prosperous neighborhoods with the hope that they will eliminate discriminatory housing policies and decades of segregation.

While most agree that affordable housing is a great concept, they are also hesitant about the effects of affordable housing on the surrounding neighborhood. It’s a real “Not in My Back Yard” mentality.

What is Affordable Housing?

According to the U.S. Department of Housing and Urban Development (HUD), families who pay more than 30 percent of their income for housing are considered “cost burdened.” Because so much of their income goes towards housing, they may have difficulty affording necessities like food, clothing, medical care and transportation. Affordable housing is used to describe housing, either rental or owner-occupied, that is made affordable no matter one’s income.

Affordable housing is a government program paid by taxpayers’ dollars. In that regard, many do not want to fund affordable housing since there’s a perception that such housing detrimentally impacts the neighborhood where they reside. While the concerns are vast, research shows that most are unsubstantiated.

Do Surrounding Property Values Plummet?

One of the main concerns about affordable housing is that it will depreciate the values of surrounding properties. However, repeated research shows that affordable housing has no negative impact on the price or frequency of sales of neighboring homes. To the contrary, a recent study demonstrates that affordable housing can have a positive impact on surrounding property values. A Wisconsin study concluded that property values surrounding low income developments rose, even if they were in relatively affluent areas. Moreover, numerous studies around the country show property values hold steady despite the close proximity to affordable housing developments.

School Standards

Another concern regarding affordable housing is that it adversely impacts local schools. The need for affordable housing in a low-income child’s education is obvious. Without affordable housing, many families are forced to move frequently in the middle of the school year. Students whose families move during the school year attend school less often and score lower on standardized tests than those who stay in one place throughout the school year.

Research demonstrates it is a misnomer that affordable housing reduces school standards. Montgomery County, Maryland, has one of the most extensive ordinances that sets aside affordable housing in residential developments. As a result, the community has become economically integrated. The county also has one of the nation’s best school systems. Based on this finding, affordable housing may even contribute to school quality.

Many also believe affordable housing will bring large families to the community, thereby increasing the burden on schools and roads. Notwithstanding, a study found that affordable housing did not increase school costs. Moreover, affordable housing helps reduce the number of cars on the road by allowing working people to live near their jobs. Affordable housing residents own fewer cars and drive less often than residents of market-rate homes, so the burden on roads is not substantial.

Affordable Housing and Crime

The notion that affordable housing will increase crime and bring undesirables into the neighborhood is unsubstantiated. Most assume that by opening their neighborhood to people of a lower income level, crime will follow.

Nevertheless, there is no evidence that affordable housing brings crime to a neighborhood. Whether a development will negatively impact a community more often depends on management practices, such as careful screening, security measures, and regular upkeep.

Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law

Legal Marijuana and Its Impact on Real Estate

Medical marijuana is legal in twenty three states and the District of Colombia.  Eleven states have laws permitting limited possession and use, while four states permit the sale of marijuana for recreational use. Despite this change at the state level, federal law prohibits the use, possession, or sale of marijuana for medical or any other use.

With the federal law incongruent with a growing number of states, what are the implications for residential and commercial real estate?

Real Estate Financing of Cannabis Dispensaries

Marijuana dispensaries are popping up all over states where marijuana has been legalized, but any business related to marijuana needs money to start.

While most businesses have the opportunity to go to a bank for a business loan, the federal government does not allow any bank to loan funds to any business related to marijuana, either medical or recreational. Properties accepting federal funds are regulated by federal policy and laws. Since marijuana is still illegal at the federal level, producing or consuming marijuana on properties with federal backing are inherently illegal under federal law.

Moreover, many landlords whose properties have preexisting leases with marijuana businesses are not offered new loans by large banks because of the illegality of marijuana at the federal level. This causes a number of commercial landlords to discontinue their leases with marijuana dispensaries. It may also mean that landlords are reluctant to rent their space to medical marijuana dispensaries.

If a marijuana dispensary is lucky enough to find space that will rent to them, where can they get financing? A number of private investors back marijuana businesses in the absence of bank loans. These include venture capital and private equity funds, wealthy investors, marijuana business consulting firms that manage private funds, and private providers of high-interest loans.

Can Landlords Ban Drugs?

Even though medical marijuana is permitted in many states, the use of marijuana can cause problems for landlords where marijuana is recognized as legal in some form.

If you live in a state that permits medical marijuana and you own property or are a property manager, you might have already noticed a growing number of tenants claiming they have a medical condition that requires the use of medical marijuana. If your rental lease prohibits smoking on the property, you don’t need to specifically amend it to prohibit the smoking of marijuana, unless you specify tobacco in the lease. If your lease prohibits illegal drug activity and you want to prohibit marijuana use in your building, you should specify that illegal drug activity as recognized by federal, not state, law is prohibited.

Considering that many states do not penalize the use of marijuana, can a landlord evict a tenant for using marijuana?

The law is in flux but housing experts believe state courts are likely to conclude a landlord cannot evict a tenant for legal use of marijuana. While no state explicitly requires landlords to accommodate tenants that use marijuana at home, many states prohibit landlords from discriminating against medical marijuana users.

Evicting Marijuana Users

Even if it appears landlords cannot evict marijuana users for smoking marijuana on their property, they may still evict marijuana users for other related reasons.

For instance, let’s say you own a no-smoking rental building with numerous apartments. One of your tenants has a legal right to smoke medical marijuana, but his neighboring tenant, who has a newborn baby, complains that the smell of marijuana is affecting her and her newborn child. If the tenant is notified that his smoking is disturbing his neighbor and he continues to do it, the tenant may be causing a nuisance which could be grounds for eviction.

Disclosure Requirements

Colorado is expected to be the first state to include a disclosure requirement for pot-friendly properties in its residential purchase contracts. The disclosure could require real estate agents to inform buyers about residential homes and condos in or near buildings where marijuana is allowed.

While there is no disclosure requirement in place yet, it could have an impact on the desirability of buildings where marijuana was allowed. Fifteen states allow growing marijuana for personal use. Growing marijuana requires water, heat, and humidity, which often creates mold. Mold is ubiquitous but most molds are harmless. Nevertheless, buyers are often so fearful of the presence of mold that any sign of it, harmless or no, is an automatic deterrent.

Authored by Erin Chan-Adams, Legal Match Legal Writer and Attorney at Law

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"Drone Slayer" Free of Charges

Look up. It’s a bird, it’s a plane—you know the rest. No, it’s not Superman. The newest version ends with the word drone. Well, one Kentucky man didn’t like the fact that a drone flew over his property. Mr. Merideth, now nicknamed the “Drone Slayer,” was arrested after shooting a drone he claimed was flying over his property. Merideth’s defense was that the drone was invading his property.

Physical invasion of a neighbor’s property happens when a landowner uses his property to deprive another property owner of enjoying his property. It’s akin to trespassing. Invasion of property is typically a term associated with tort law, not a criminal defense.

According to Merideth, he was at his home outside of Louisville on July 26. His daughter told him a drone was flying over his house. He admitted to loading his 12-gauge, short-barreled shotgun with a birdshot, then shooting the drone from his back porch. Merideth was charged with first degree criminal mischief. 

Criminal mischief occurs when someone damages property. The property generally has some particular dollar amount. Criminal mischief requires an individual to intend to damage other’s property when he didn’t have permission to do it.

The drone’s owner, John David Boggs, wasn’t happy about the destroyed drone. Boggs maintained that the drone wasn’t hovering over Merideth’s property. He actually place the footage of the drone’s final flight on social media.

It’s Not Illegal to Fly a Drone in Kentucky

A lot of states have passed laws restricting or prohibiting recreational drones. States have also passed a law to prevent people from being harassed by someone flying a drone. Kentucky doesn’t specifically regulate or prohibit private drones.

However, a Kentucky judge determined Merideth wasn’t guilty of criminal mischief. According to the judge, the testimony in the case seemed credible. It was an invasion of privacy because the drone was hovering up to three times a day over people’s property. Thus, the defendant had a right to shoot the drone. He should’ve never been charged.

The Prosecutor Should Have Charged Boggs with Criminal Trespass

Criminal trespass is the unlawful entry into another person’s property. What makes it unlawful is the defendant enters the property without permission or authority to do so. An individual can be charged with criminal trespass if he interferes with another person’s use of his property too. Another way to commit criminal trespass is to intentionally enter or remain on the property of another without consent.

In fact, in most criminal trespass cases only two elements are needed to convict:

1. There was an unlawful entry onto the land of another
2. The defendant knew he was not permitted on the owner’s land

Looking at the facts of the case, it is clear Boggs should’ve been the one arrested. Bogg’s made an unlawful entry onto the property of another person. According to court testimony, Boggs’ drone flew into Merideth’s property. Property extends to the airspace surrounding the property. Although Boggs didn’t physically enter onto the property, he used his drone to do so.

Boggs knowingly flew his drone over Merideth’s land. Boggs controlled the drone and commanded it to fly over several properties, including Merideth’s. At no time did Merideth give Boggs permission to fly over or hover over his property. Thus, Boggs knew he was no allowed on Merideth’s property.

By using his drone to fly over or hover over property, he prohibited the Merideths from enjoying the backyard. Merideth’s daughter went into the house and told him that the drone was over their property. Merideth also said this wasn’t the first time the drone was flew over his property. He complained to police, but they didn’t stop Boggs.

Merideth Shouldn’t Have Shot the Drone, but Boggs Trespassed

Of course, people shouldn’t take the law into their own hands. It’s important to let the police handle things such as drones flying over their property. However, it’s also important for people who fly drones to know the law. It is trespassing on a person’s property when flying a drone. People have a right to privacy and enjoyment of their privacy.

To have a drone hovering over a home—and filming—sets up a dangerous precedent. It means that someone can’t step onto property without being charged with criminal trespassing. However, he could use a drone to trespass onto property and not get charged. Imagine if he was filming some private moment on the back porch of the Merideth house. It wouldn’t be fair. It wouldn’t be right. It would be the criminal act trespassing.

Authored by Taelonnda Sewell, LegalMatch Legal Writer

The Future of Short-Term Rentals

Airbnb just had a major victory in San Francisco, defeating a proposition that would have restricted short-term rentals to 75 nights a year and placed several other conditions on property owner “hosts.” One of Airbnb’s most persuasive arguments was that the law was too invasive and tried to control what people did in their own homes.

Airbnb also argued that short-term rentals are good for property owners, tourists, and the cities themselves. The company advocates the idea that short-term rental companies can and should collect hotel tax revenues. In a city like New York, those revenues could be tens of millions of dollars. In San Francisco, California Airbnb has reportedly paid several millions of dollars in taxes, and used this as an argument to stay.

However, major tourist cities such as New York, New Orleans, Barcelona, and Berlin have all taken action to discourage short-term rentals. In Austin, Texas, a Type II permit is required to rent an owner-unoccupied home or duplex to someone for fewer than 30 days. Until at least 2017, no additional Type II permits will be issued. City officials took this action in response to complaints about residences turning into “party houses,” causing excessive noise and safety concerns for families. 

All cities with short-term rentals (whether legal or not) have had major problems with such rentals, making the road forward potentially more difficult. The future of short-term rentals will require better cooperation with communities and more regulation. If nothing changes, more cities will act.

These are the three main things short-term rental companies should do to stay in business:  

1.    Make Sure That Hosts Are Following Local Laws

New York City has long had short-term rental restrictions on the books, and violations can sometimes result in heavy fines or other legal action. Last year, New York’s Attorney General found that around 75% of the properties advertised for rent on the site violated the city’s ordinances. Far from encouraging short-term rental companies to stay in business, the city has formed a task force to crack down on illegal hotels.

Portland, Oregon wants to tax and regulate short-term rentals. As part of getting a rental license, the city will inspect properties to make sure that they are safe for guests. When this law went into effect though, Portland area hosts did not immediately comply. In February 2015, the city had to threaten Airbnb to make its hosts get permits.

Short-term rental companies should ensure compliance before authorities must act.

2.    End Conflicts With Neighbors

Complaints by neighbors are central to many rental conflicts.  Many short-term hosts leave town and don’t exert enough control over their guests. In areas where property values are the most lucrative, homeowners are often now permanent neighbors of unruly strangers.

When apartments and houses become imitation hotels, problems follow. Tourists often travel in groups, and make no distinction between work nights and the weekend. They are notorious for getting drunk, making too much noise, and forgetting that other people are around. In a worst-case scenario, guests may violate noise ordinances or other local laws while renting.

Close neighbors should be able to contact short-term rental hosts. Ideally, though, neighbors should be totally unharmed by noise or other problems caused by short-term rentals.

3.    Address Safety Concerns

While most short-term rental experiences are likely positive, there are many reasons why arrangements with unregulated strangers can go bad. Even the quickest internet search will reveal stories of these arrangements gone wrong.  Unsuspecting hosts may face property vandalism or theft. There are rarer stories of host-on-guest or guest-on-host violent crime.

For guests, there are also safety concerns with the condition of homes. Hotels are regulated and undergo safety inspections. People’s private homes are generally not inspected before rental. In 2014, The Telegraph reported a story about a man who had to sleep in a room with a host’s pet rabbit, who bit him on the finger. More tragically, a father recently died at a Texas Airbnb rental after using a dangerous rope swing on the property. There was also a carbon monoxide death linked to the company, which now requires hosts to put detectors in rental properties.

Landlords (even short-term ones) may be liable for guest injuries, and their homeowner’s insurance often do not cover commercial rental. Airbnb has started offering secondary insurance coverage for hosts, but not all short-term rental sites do this. Property inspections, like the ones done in Portland, may be important in making this industry safer.

Authored by Alexis Watts, LegalMatch Legal Writer

Nuisance and Trespass Claims Against Energy Companies

Recently, there have been a number of nuisance and trespass claims filed by homeowners and cities against energy companies. State courts have ruled that the allegations are not overruled by federal environmental laws and state Clean Air Acts. For instance, a Texas court found that a city and homeowners have the right to allege state nuisance and trespass claims against five energy companies, all of whom are accused of polluting private property.

The U.S. Supreme Court decided not to review a ruling made by the Iowa Supreme Court, which found that state law class actions are not preempted by the federal Clean Air Act. This ruling, which was made in December 2014, was appealed by a corn company in Iowa that was alleged by homeowners to have caused harmful odors and perilous pollution in the vicinity of one of its milling facilities. The United States Supreme Court decided not to hear the appeal.

There appears to be a trend of rulings by courts that state nuisance claims are not subject to preemption by federal statutes. However, courts also seem reluctant to allow class action lawsuits to proceed. For instance, in the Third Circuit class action, when the case was remanded, the district court removed the proposed class action plaintiffs because their damages lacked specificity.  

A private nuisance is an activity or conduct that interferes with the rights of private landowners; it interferes with one’s quiet enjoyment of the land without including trespass. A public nuisance is where such conduct interferes with the general public’s rights in that it can have an adverse effect on the health and safety of the public.

In a class action, plaintiffs are required to show harm and causation, which are issues that tend to be unique to each individual. In other words, homeowners are more likely to succeed based on claims that they were individually harmed rather than by bringing class action lawsuits on behalf of the entire neighborhood. However, the amount of money collected by each plaintiff was smaller than they would have received had they filed together. The individual suits were only based on the amount by which the value of the property was reduced.

Due to the increasing prevalence of facilities that are closer in proximity to residential areas than in prior years, it is within the right of plaintiffs to file a nuisance claim if they are being harmed by the energy companies’ operations. For instance, there has been a rise in such industries as hydraulic fracturing, and oil and gas exploration, near people’s homes, thereby causing tensions between residents and energy companies.

In order to maintain a cooperative relationship with homeowners and other business owners, energy companies have a responsibility to be conscious of their environment and the people who may be affected by their operations.

Seeking Legal Advice

If someone is interfering with the quiet enjoyment of your home or business, and thus, creating a nuisance, you should consult a nuisance attorney who will help you obtain an injunction against the wrongdoer and secure damages for any injuries you may have suffered.

Authored by Roxanne Minott, LegalMatch Legal Writer and Attorney at Law

Investigation into Balcony Collapse Could Result in Stronger Building Codes

An investigation has been under way into the balcony collapse that occurred in a Berkeley, California apartment building during the early hours of Tuesday, June 16, 2015. The collapse caused the deaths of six people and injured seven more. Of those killed, five were Irish nationals, and one was a woman from Rohnert Park, California who held dual citizenship with the U.S. and Ireland. The accident occurred during a party for a visiting Ireland student celebrating his 21^st birthday.

According to experts who viewed the damage to the balcony, the balcony collapsed because rainwater had seeped through the wood structure of the balcony, resulting in dry rot. This process can occur in just a few years. The five-story complex, called the Library Gardens, consists of four residential floors above a retail level, and was only built in 2007.

Berkeley Mayor Tom Bates stated that the balcony was not structurally sound to support the people who were standing on it. Under city and state codes, the balconies are expected to hold a minimum of 60 pounds per square foot. According to city officials, the dimensions of the balcony that collapsed were 8 feet 10 inches long and 4 feet 5 inches wide. Therefore, it should have had the capacity to hold approximately 2,100 pounds. At the time of the collapse, 13 people were standing on the balcony.

Due to this tragic accident, the city of Berkeley may have to strengthen its building codes in order to prevent similar accidents from occurring in the future. Segue Construction is a firm that may not be meeting presenting codes. It appears that this is not the first time Segue has allowed “water penetration” problems in its building constructions. Court filings reveal that Segue Construction, the company that built Liberty Gardens, paid $3 million in 2014 in settlement of a lawsuit regarding “water penetration” problems on several balconies in an apartment complex in San Jose.

In a similar case in 2013, Segue paid $3.5 million in settlement of a case filed by the owners of a condominium complex with 109 units that had been constructed in 2010 in Millbrae on El Camino Real. According to Thomas Miller, the plaintiffs’ attorney, the balconies collapsed because of the same reasons. Water seeped into the structural wood of the balconies, causing dry rot. Thirty-six balconies were determined to be unsafe, and are being re-constructed.

Preventing More Injuries

As Mayor Bates suggests, the laws controlling balconies are not sufficiently stringent. The regulations governing balconies in California are based on standards established by the International Code Council, which offers the bare minimum level needed to conform to the standards of public safety and occupancy.

As a preventive measure, it would be best to strengthen the building codes in the city of Berkeley, just as the city of Chicago did over 10 years ago after a porch collapsed, killing 13 people, and injuring several others. The accident took place in June 2003, at a home in the stylish Lincoln Park neighborhood of Chicago with 75 guests. Not long after midnight, a back porch located on the third floor collapsed and fell into the basement. The litigation in that case just concluded in June 2013 with a settlement of $16.6 million. An architect determined that the porch had not been constructed in accordance with city code. Following this tragic accident, the city of Chicago strengthened its building code as well as its enforcement procedures.

It would certainly be proactive if all cities nationwide didn’t wait for such a tragic accident to occur but would try to ascertain whether all of their buildings were in compliance with the city code, and determine whether their building codes need to be stronger.

Authored by Roxanne Minott, LegalMatch Legal Writer and Attorney at Law