Real Cases in Real Estate By Andrea Lee Negroni, Esq. – January 29th, 2013 Update

Real Cases in Real Estate By Andrea Lee Negroni, Esq. – January 29th, 2013 Update

Real 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.

Followers of Real Cases in Real Estate will learn and be entertained by lawsuits involving nuisance, trespass, zoning violations, deed restrictions, title insurance, public utilities, mechanics liens, construction defects, adverse possession, foreclosure and eviction, divorce and marital property rights, tenants' rights, and more. Real Cases in Real Estate uncovers the unpredictable, amusing, and sometimes outrageous disputes between next-door neighbors, contractors and homeowners, condo boards and residents, real estate brokers and homebuyers, and zoning administrators and developers.

Each fully cited case summary highlights the essential law of the case and explains the principal legal theories and concepts relevant to the outcome. Plain language treatment makes Real Cases in Real Estate accessible to lawyers and laymen alike.

Whether you follow real estate law professionally or as a hobby, you'll find something new and useful every week in Real Cases in Real Estate.

Updates for the Week of January 29th, 2013

Pennsylvania Court Rejects "Expressive Technique of Encampment" on Private Property

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 subscribers].


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