Cases in Real Estate
is a weekly update on real estate law, with legal principles illustrated and
explained by lawsuits from around the country. The topics are wide-ranging for
appeal to a broad spectrum of readers including lawyers, homeowners, investors
and the general public. Andrea Lee Negroni, a Washington DC
attorney and legal writer with 25 years of experience in financial services and
mortgage law, contributes the case summaries.
Real Cases in Real Estate will learn and be entertained by lawsuits
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for the Week of January 29th, 2013
Pennsylvania Court Rejects "Expressive Technique of Encampment" on
Observing that "the notion of a permanent encampment on
either public or private property to the exclusion of other members of the
public or a private owner is untenable and has been rejected by every court
which has ruled upon it," the Court of Common Pleas of Allegheny County,
Pennsylvania ordered Occupy Pittsburgh to vacate privately owned Mellon Green,
owned by BNY Mellon, a national bank. The case touches on several important
principles of Pennsylvania property law.
Occupy Pittsburgh members camped
out in Mellon Green. Mellon Green was open in spring and summer and closed
every winter. Shortly after the occupation, BNY Mellon told the media and
police that Occupy Pittsburgh could stay as long as they didn't damage the
property. Later, BNY Mellon sought an injunction to remove the campers. Occupy
Pittsburgh claimed a right to remain based on its first amendment right to free
speech, its reliance on BNY Mellon's statements that they could stay, and the
theory that Mellon Green was a public forum.
Announcing the operative legal
principle, that "there is no zoning, constitutional, statutory or common law
ground that permits a group of people to take over someone else's private
property...and effectively prevent the owner from closing its property," the
court determined that the occupation of Mellon Green caused BNY immediate and
irreparable harm that could not be redressed through damages. The court noted
Pennsylvania's "longstanding principle" that "the continuous wrongful taking of
someone else's property constitutes irreparable harm." Elements of this
irreparable harm include the harm to people or property and the risk of
liability to the owner caused by the trespass. Since the owner traditionally
closed the park in the winter, snow and ice were not removed, creating a risk
to people using the sidewalks. The occupiers said they would remove the snow
and ice, but BNY Mellon was not required to believe them. Another element of
harm is damage to the property itself; Mellon Green was damaged by the
occupiers and the cost to restore it was estimated at $70,000-100,000. Finally,
a continuing trespass constitutes irreparable harm.
The free speech argument was
rejected, with the court observing that seizure of BNY Mellon's property was
not necessary for the occupiers to express temselves. The claim that BNY Mellon
granted a "license" for use of the property was rejected. The occupiers said
they relied on BNY's statements to purchase tents and sleeping bags, but these
purchases did not rise to the level of detrimental reliance creating an implied
license to use the property. Tents and sleeping bags could be used elsewhere,
not just on BNY's property, and their expense was neither significant nor
permanent. Finally, the court noted that Occupy Pittsburgh benefitted from its
encampment at Mellon Green, by spreading its messages to passersby and
receiving extensive press coverage. These benefits offset the expenses for
tents and sleeping bags.
The argument that Mellon Green
was a public forum on which Constitutionally protected free expression cannot
be inhibited, was rejected as well. The Supreme Court has explicitly stated
that "private property, which is opened to the public, does not necessarily
become a public forum." BNY Mellon's time, place and manner restrictions for
the use of its property were found reasonable, Occupy Pittsburgh's encampment
was found unreasonable and an unjustifiable intrusion on private property
rights, and the injunction was granted.
BNY Mellon, NA v. Occupy Pittsburgh, 2012 Pa. Dist. & Cty. Dec.
LEXIS 17 (February 2, 2012) [enhanced version available to lexis.com subscribers].
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