Tag: entirety

A New Twist On Who Gets The House When The Relationship Ends

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

House + money (pd)If you read this blog then you know that failed relationships often make for the most interesting cases. For example, if your would-be spouse calls off your wedding, then you are usually entitled to get the engagement ring back. But, if you cancel your wedding reception, you may not be entitled to a refund from the venue where it would have taken place. And, of course, if your ex-wife agreed to pay all "utilities" under a divorce settlement but fails to pay for water filtration services that remained in your name and you get sued by the water filtration company, your ex-wife will be required to reimburse you for those charges. Now, Burke v. Bernardini can be added to this list.

In Burke, plaintiff and defendant were involved in a "romantic relationship." (They had actually known each other for 25 years before they began dating.) While they were dating, plaintiff bought property on which he built a house where he and defendant lived together. He paid approximately $368,000 for the property and another $100,000 for improvements and additions. Both plaintiff and defendant contributed furnishings.

Before buying the property, the parties entered into an agreement that provided:

[Plaintiff] acknowledges and agrees that [defendant] has provided, and will continue to provide[,] companionship to him of an indefinite length. [Plaintiff] promises and represents that upon closing, the home shall be deeded and titled in the name of "[plaintiff] and [defendant], as joint tenants with the right of survivorship."

(As a side note, only in the hands of a lawyer does "'til death do us part" become "I agree to provide companionship of an indefinite length.") The agreement also provided that defendant would have no "financial obligations for the home, including, but not limited to, property taxes, homeowners association fees, and homeowners insurance."  

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Stop The Beach (Again): Supreme Court Agrees To Hear Another Potential Case On Judicial Takings

by:  Peter J. Gallagher

Somewhat lost amid the flurry of opinions handed down by the United States Supreme Court at the end of the 2010-11 session was its grant of certiori in PPL Montana LLC v. Montana (the link takes you to the SCOTUSblog page for the case, which contains the underlying opinion and the cert documents).  PPL Montana, Montana's largest private producer of hydroelectric power, appealed a decision from the Montana Supreme Court that, among other things, required the company to pay rent for its use of Montana rivers.  The Montana Supreme Court concluded that the Missouri, Madison, and Clark Fork Rivers were owned by the state because the rivers as a whole were navigable when Montana entered the Union.  The company argued, unsuccesfully, that the navigability of a river must be determined "section by section," rather than in the entirety, and that the portions of the rivers that the company uses are not navigable.

The case is seen by many commentators as another opportunity for the U.S. Supreme Court to address the notion of "judicial takings" that it recently addressed in Stop the Beach Renourishment v. Flordia Dept. of Environmental Protection.  (Broadly speaking, the question presented in that case was whether a judicial decision can qualify as a "taking" – think eminent domain – that requires the person from whom property is taken to be compensated under the U.S. Constitution.)  In Stop the Beach, Chief Justice Roberts and Justices Scalia, Kennedy, and Alito held that there was such a thing as a judicial taking (although no member of the court believed there was a taking in the case itself).  Several other justices suggested that they might be persuaded to join these four in a future decision, but that Stop the Beach was not the right case to do so because there was no taking and thus the court did not need to reach the broader, essentially theoretical, question of whether judicial action could ever amount to a taking.  The PPL Montana case may provide the opportunity for at least one of these justices to join the four who are already willing to recognize judicial takings.  Stay tuned for more details as the case develops.