Proper Advice Can Make A Difference

/in , , /by

            “Penny wise and pound foolish.”

Maybe it’s an old saying.  But there can be truth in it.

I constantly see the practical application of this saying in the real estate foreclosure market.

In California, some loans are “non-recourse.” With “non-recourse” loans, the borrower generally won’t have personal liability after a foreclosure for any shortfall or deficiency in the foreclosure sale price.  In other words, if the property is worth less than the loan, the borrower won’t have to make up the difference if the property is sold in foreclosure.

Most borrowers don’t know the law with respect to foreclosure.  Foreclosure can seem mysterious, and somewhat foreboding. The phrase “Short sale” sounds so much less foreboding than the word “Foreclosure.”

But many homeowners who can’t meet their payments have a choice between foreclosure or a short sale.  There are often tens of thousands, or sometimes hundreds of thousands, of dollars at stake in such a decision. The net economic difference to a homeowner between selling their home in a short sale as compared to losing their home through foreclosure can be very significant.  Sometimes a short sale yields a better result.  Sometimes foreclosure is better.  But it’s difficult when I hear that homeowners facing such decisions are unwilling to spend a few hundred dollars to get some professional advice on which course of action makes the most sense for them and which one is likely to yield the better result.

It’s tough.  Homeowners facing a short sale or foreclosure are already losing their entire down payment.  And they are also often losing all of the work, money, and improvements they’ve put into their property.  The thought of spending additional money on attorneys fees only to lose more money can seem like throwing good money after bad.

What these homeowners often don’t realize is that the money they spend for professional help is being spent in the nature of “damage control.”  Homeowners who choose a foreclosure or short sale can end up being surprised at the end of the day when they think that the short sale or foreclosure is the end of the process, only to learn too late that the lender has preserved a claim against them following foreclosure and intends to pursue it.  This can often happen in situations where there are two loans against a property, but it can happen in other situations as well.  A short sale or foreclosure can both be thought of as a transaction, though such transactions may be made under pressure. Even though a homeowner will most likely lose money in such a transaction, there can sometimes be an opportunity to lose even more.  Competent, qualified, professional advice can sometimes make a big difference on helping homeowners minimize their losses and can help them avoid losing even more.

Law Hangs in the Balance

/in /by

            Open up just about any phone book and turn to the yellow pages section on “Attorneys.” If you look at enough of the yellow page ads, you’re likely to see a photo (or drawing) of a set of “scales” or “balances.”  You may even see a blindfolded  “Lady of Justice” holding a sword in one hand and a set of balances in the other.

So where does this symbol of “Lady of Justice” come from and what does she represent?

Depends on who you ask. A quick internet search on “woman holding balances” will give you all kinds of opinions about the source and history of “Lady of Justice.”

For example, if you do a web search using these search terms: “The symbol of Justice began centuries ago” then you’ll be taken to a website where you’ll see a drawing of a blindfolded “Lady of Justice” holding a sword in one hand and a set of balances in the other.” The website traces the symbol to Roman mythology, and notes that she is often (but not always) shown wearing a blindfold.  The website states that the image of “Lady of Justice” refers to one of the Roman gods; she represents the fair and impartial administration of justice.  However, the site provides no specific discussion of the sword or the balances.

The site goes on to note that “The modern image of Justice that many of us know today is based on Greco-Roman mythology of Themis and Justitia.  Almost always draped in flowing robes, mature but not old, she symbolizes the fair and equal administration of the law, without corruption, avarice, prejudice, or favor.  Themis, c 300 BEC, was the Greek Goddess of Justice and Law and was known for her clear-sightedness.  Her ability to foresee the future enabled her to become one of the oracles at Delphi, which in turn led to her establishment as the Goddess of Divine Justice.  Classical representations of Themis did not show her blindfolded because of her talent for prophecy, nor was she holding a sword because she represented common consent, not coercion.”

If you do a google search using the following search terms:  New York Times Lady Justice you’ll be taken to a web page where you’ll find there is so much history to the image that an actual book on the subject was published in 2010 about its history.

That website reviews some of the major points of the image, and includes photographs of some of its different uses, including one from the Vatican. This review describes the progression of the image from ancient Egypt, where the balances held a feather on one side and a heart on the other.  According to this article, “Lady of Justice” never wore a blindfold until the 17th century.

It’s a certainty that our American legal system requires a balancing of interests. Whether or not the balances held by the Lady of Justice represent a balancing of interests, the courts in our country consistently find it necessary to balance competing interests.  In an interesting case, a court found it necessary to balance the constitutional right to the free use of property against the rights of free speech and the right to assemble.

Balancing Freedom of Speech

/in /by

           This article describes some of the meanings and symbolism of the “Lady of Justice” image that is found in the decorating of many courthouses, including the courthouse of the United States Supreme Court.  The image generally consists of a woman holding a sword in one hand and a set of balances in the other. Sometimes she is blindfolded, and other times she is not.  The image is commonly known as “Justice” and it traces its history back to ancient Egypt, Greece and Rome.  The image is commonly understood to represent fairness and impartiality of law and justice.

The image of “Lady of Justice” holds a balance in one hand.  Some sources interpret the use of the balances to mean “impartiality” in the application of the law.  Because the symbol has been used for so many years in so many different situations, it’s not entirely clear that a single, consistent defined meaning is always attributed to the balance in the woman’s hand.  But one of the tasks that is consistently faced by courts is a balancing of interests.

Here’s an example. Many schoolchildren learn at a young age that the United States Constitution provides American citizens with a right of “free speech,” where all Americans have the right to speak our thoughts and intentions without undue governmental interference.  But the right to “free speech” is not unlimited.  In our legal system, the right to “free speech” must be tempered, or balanced, against other considerations.  It’s easy to think that our constitutional right to “free speech” should give us the right to say most anything – but that’s just not the case. It’s easy to think that words don’t mean much because they are just spoken and then they disappear – and it doesn’t seem like there’s much left behind.  But there are many state and federal laws that prohibit certain kinds of speech or certain words from being spoken.

We intuitively know this.  For example, the oath administered in courts of law obligates the witnesses who give testimony to speak the truth.  If these witnesses don’t speak the truth, then they can be convicted of a crime and imprisoned – just for speaking a series of words. And if a witness is ordered to appear in court, and if that witness refuses to answer questions, then in some situations such silence can constitute contempt of court, and that witness can be imprisoned simply for refusing to speak. (This should never be confused with a person’s Fourth Amendment rights, which grants a witness or a defendant the right to remain silent in certain situations).

There is no doubt about it. Words have substantial meaning and importance.  If someone in a court proceeding says words disrespectful of a judge or the legal system, then that person could end up in jail for a few days as they are given time to think about their “contempt of court.”  Newspaper headlines sometimes carry stories of persons who “leak” important, confidential information.  Persons can make threats of all kinds, and the wrong kind of threat spoken in the wrong setting can land you in jail.  Even financial information spoken improperly by “insiders” can create problems in financial markets that can end up in prison time.  So words aren’t just “fluff” – they really do mean something, and when spoken or written they can and do have real effect.  The First Amendment right to “free speech” doesn’t allow people to make improper of threats or certain illegal statements – and if persons do make such statements, then the long history of case law interpreting First Amendment rights may not come to their aid, because there are many cases that show that the First Amendment rights of free speech can properly be limited to some degree by government.  Such limitations sometimes control the “time, place and manner” regarding the exercise of free speech.  Here’s a simple example.  If you are in a public theater watching the latest super-hero action movie, and if there’s an enormous onscreen picture showing a hero with a gun and someone says “Look – he has a gun” it’s unlikely that anybody is going to be too surprised, and in that setting a person’s first amendment rights may well protect that kind of a statement.  But there are other security-sensitive situations that we all encounter where those exact same words, “Look – he has a gun” spoken improperly and inappropriately, could raise quite a stir.  What’s the difference?  Is it the words?  No – the words in each situation were exactly the same.  But in one situation, it’s unlikely anybody would give them a second thought, but in a very different situation the person making such a statement could quickly find themselves at the police station. The difference between the two situations was the time, place, and manner in which the same words were spoken.

Freedom of assembly is a similar right granted by the Constitution. For an interesting application of the rights of freedom of speech and freedom of assembly in a connection with uses of private and public real estate, see the articles over the next three weeks.

First amendment rights of free speech and free assembly are governed by extensive case law interpreting and defining those rights.  Proper application and understanding of these rights involves complex legal considerations.  Persons with First Amendment claims, issues or questions should consult competent legal counsel.

Assemble at Will

/in /by

Two of the fundamental rights granted by the United States Constitution are the right of free speech, and the right of public assembly.  These two rights allow United States citizens to freely speak their mind on a broad range of subjects, and they also allow citizens to peacefully assemble, without prior governmental permission, so long as such assembly is done properly and appropriately.  These rights of free speech and freedom of assembly are so much a part of our culture that we often don’t even think about them as basic rights unless we feel they are being threatened.  For example, nobody thinks twice about going to a music concert at a large concert hall – and nobody thinks twice about showing up for a performance of Shakespeare in the park.  Everybody just goes without ever thinking about getting a special governmental permit allowing a large number of people to assemble for such a performance.

But this wasn’t always the case.  Some governments throughout history have been known to curb, limit, or outright ban informal, unauthorized meetings of persons.  This may have been done in an effort to limit the ability of persons to organize themselves in some kind activity that the government didn’t support.  It’s easy to find examples of this.  One of the most readily examples of this is found in the Bible, where an informal gathering of people was dispersed because no governmental permission had been previously obtained for the gathering.  See Acts 19:21-41.

The right of free speech and the right to peaceably assemble are federal rights, granted by the Bill of Rights in the First Amendment to the Constitution.  The First Amendment specifically provides that “Congress . . . shall pass no law abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.”  This means that the Bill of Rights prevents the Federal government from improperly limiting or infringing on those rights. The First Amendment doesn’t say anything about whether or not the several States have the ability to pass laws that infringe on those rights.  But the 14th amendment to the Constitution has been interpreted to extend these rights to actions by state governments, so that not only the United States Congress but also state and local governments are prohibited from improperly infringing on those rights.

Recognizing that the right to peaceably assemble is a fundamental constitutional right, it would be easy to think that there should never be any kind of problems with this right.  But there are many forms of government in the United States.  There is one federal government, fifty state governments, and many, many city and county governments.  All of them pass laws and ordinances to regulate the activities of their citizens and residents. So it may come as no surprise that one of these many governments may occasionally run afoul of one or more of these individual constitutional rights.

 

Though individuals have first amendment rights to peaceably assemble, the government can often regulate and control the time, place, and manner of such assembly.  First amendment rights of free speech and free assembly are governed by extensive case law interpreting and defining those rights.  Proper application and understanding of these rights involves complex legal considerations.  Persons with First Amendment claims, issues or questions should consult competent legal counsel.

Just in Case

/in /by

Two important rights of American citizens are the constitutional rights of freedom of speech and the right to peaceably assemble.  These First Amendment rights are granted by the United States Constitution to all citizens of the United States.  The First Amendment by itself only restricts the United States Congress from passing laws that improperly abridge the rights of free speech and freedom to assemble.  The Fourteenth Amendment to the Constitution extends these rights so that state and local governments do not have the power to pass laws which improperly abridge, limit, or restrict those fundamental constitutional rights of freedom of speech and freedom of assembly.

There are many, many cases that interpret the rights of freedom of speech and freedom of assembly.  Whenever a question arises about whether or not the government is improperly abridging the rights of free speech or assembly, this case law can help determine exactly how those rights are to be applied.  One major purpose of a court is to apply a legal principle to the specific facts of any given situation, but the fact of legal situations can vary widely. As a result, it’s not always immediately clear how a legal principle will be applied in any given case.

The Fourth Amendment to the United States Constitution provides that the people are entitled “to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.”  The Fourteenth Amendment to the Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.”  The Fifth Amendment to the Constitution provides that no person shall be deprived of life, liberty or property without due process of law, and also provides that private property shall not be taken for public use without just compensation.  These protections generally apply to corporations, or companies, as well as to individuals. Most of us recognize that the government can’t properly take our own private property without paying for it.  But a court must balance competing interests.  For example, a court must balance the interest of free speech against the right of control over one’s own property, and when such balancing is done there can be interesting results.

There is a question as to how much control the owner of property is entitled to exert over his property.  The whole concept of “property” is founded on the idea of “exclusivity.”  In other words, if one person owns an item of property, then under the laws of the United States that person has the right to exclude all the world from using that property if he or she so chooses.  The right to control, or exclude, use of property is one of the key hallmarks associated with property ownership.  But situations can arise where this near-absolute right to exclude others must be tempered.  And sometimes the right of free speech can, on balance, trump the right to the exclusive use of property.

For an interesting example of a case where the right of free speech was directly balanced against the rights of property ownership, see next week’s article.

            First amendment rights of free speech and free assembly are governed by extensive case law interpreting and defining those rights.  Proper application and understanding of these rights involves complex legal considerations.  Persons with First Amendment claims, issues or questions should consult competent legal counsel.

It’s A Company Town

/in /by

            One of the most important principles concerning Property is the concept of “exclusivity.”  Under this principle, a property owner has the right to exclusive use of his property, and he or she has the rights to exclude the entire world from using his or her property.  This principle is sometimes referred to as “Exclusivity.”

Most of us intuitively recognize that by “owning” Property, we have the right to exclude others from using it (unless we consent to their use of it).  But even though this right of control and exclusive use of Property is a basic right, it can sometimes be necessary to temper, or balance, that right against other important rights.  For example, there can be situations where the right of free speech can be infringed by a vigorous observation of property rights.  Following is a real-world example.

In the 1940’s, there was a “company town” in Alabama where a certain shipbuilding company owned the town – all of it.  The company owned all of the houses, all of the commercial buildings, and all of the downtown area. The company even owned all of the streets and all of the sidewalks in the town.  The company owned  literally all of the real estate in the town.  A deputy of the County Sheriff served as the town’s policeman, and the company paid his salary.  Merchants and business owners rented stores and places of business from the company, and the United States postal service ran a post office out of one of the buildings owned by the company.  There was a public four lane highway that ran parallel to the business district, and the general public were readily able to drive into the town and  onto the streets that were owned by the company.  There were no outward indications that all of the real estate in the town was owned by the company. However, the company had posted signs in the downtown stores that said “This Is Private Property, and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted.”

A member of a religious organization came into town, stood on the sidewalk near the post office, and began distributing religious literature.  This person was warned that she could not distribute such literature without a permit; she was also told that no permit would be issued to her.  She protested that she had a constitutional (free speech) right to distribute religious literature.  When asked to leave the sidewalk, she declined.

The deputy sheriff arrested her and she was charged in state court with violating an Alabama law which made it a crime to enter or remain on the premises of another after having been warned to leave.

At her trial, the woman protested that she had first and fourteenth amendment rights to freedom of speech and freedom of the press.  The Company (apparently) claimed that the woman was on private property controlled by the company, and that by refusing to leave after being warned, the woman was in direct violation of the Alabama statute which made it a crime to remain on private property after being told to leave (i.e. trespassing).

You be the judge.  Who was right?  Who should win?  The woman was on private property owned by the Company, and the Company wanted her gone.  But the woman wanted to speak her religious opinions to the persons who were in the Company town.

If you said that the Company should win and the woman didn’t have the right to distribute religious literature on Company property, then you would have agreed with the Alabama state trial court.  The trial court rejected the woman’s claims of first and fourteenth amendment rights. The Alabama Court of Appeals upheld the woman’s conviction by holding that the sidewalk belonged to the Company, and the public had not used the sidewalk in such a way as to result in an “irrevocable dedication to the public.”  In other words, though the public could use the sidewalk, it still belonged to the Company.

The woman appealed to the United States Supreme Court.  In that appeal, the State of Alabama argued that the Company’s right to “control the inhabitants” of the company town was similar to the right of a homeowner to “regulate the conduct of his (or her) guests.”  But the Supreme Court rejected that argument by holding that “Ownership does not always mean absolute dominion.  The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”  The Court further held “Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm.  Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.”

The woman won; the Company (and the State of Alabama) lost.  The case is reported as Marsh v. Alabama (1946) 326 U.S. 501.

Though the individual won this time, the outcome could be different under a different set of facts. First amendment rights of free speech and free assembly are governed by extensive case law interpreting and defining those rights.  Proper application and understanding of these rights involves complex legal considerations.  Persons with First Amendment claims, issues or questions should consult competent legal counsel.

Risk Management in Transactions

/in , /by

Virtually every transaction has some risk.  But the risk in most transactions is so small that we usually don’t even think about it.

For example, buying a candy bar at a convenience store usually has very little risk.  But no transaction is completely risk-free.  Years ago I knew a person who bought a package of candy-covered chocolates at a small store.  She put a handful in her mouth and broke a tooth.  The machine that made the candies had malfunctioned and put a hard piece of solid candy into the bag along with the chocolates. Expecting only soft chocolates, this person bit down hard and broke a tooth.

While there may not be much risk in buying candy, there can be much more risk in buying real estate.  Most real estate includes many systems which only work properly if they are correctly designed, constructed, and maintained.  A failure to correctly design, build, or maintain real estate can result in problems, and many of the problems seen in real estate can be traced to one of these causes.  In addition, there can be problems with title, easements, liens, and other issues concerning legal ownership or use of the property.  Fortunately, many transactions go smoothly with no problems, surprises, or disappointments. But when things go wrong, the time, cost, and frustration of setting things right can be significant.  The whole purpose of getting property inspections and professional advice before buying a property is to try to avoid surprise, expense and disappointment as much as possible.

After litigating for more than 30 years, Robert Jacobs now mediates challenging real estate, business, construction, personal injury, trust and probate cases. In 2020 he served as Chair of the Contra Costa County Bar Association ADR section and Co-Chair of the Alameda County Bar Association ADR section.  Since 2017 he has served as one of the update authors for the CEB treatise Real Property Remedies and Damages and is a co-author of CEB Practitioner (Real Property). He holds an AV rating from Martindale-Hubbell and is a designated SuperLawyer. Mr. Jacobs received his mediator training from Northwestern University in Chicago, Illinois.

Rose Bowl A Tradition

/in /by

            On any given New Years Day, perhaps the most valuable piece of real estate in the entire nation is the football stadium where the Rose Bowl game is played in Pasadena, California.  Without a doubt, the Rose Bowl is the site of one of the most well known college football games each year.

Perhaps less well-known is the fact that the Stadium itself is listed as a National Historic Landmark. The National Historic Landmark Database is maintained by the National Park Service.  According to a National Park Service National Historic Landmarks update in 2004, National Historic Landmarks are designed to provide  “reflection upon how we Americans came to be what we are today.” (For more information about National Historic Landmarks, point your browser to http://www.nps.gov/history/nhl/).

According to the web site maintained by the National Park Service, the Historic significance of the Rose Bowl stadium is described as follows: “Since 1922, this has been the site of the earliest and most‑renowned post‑season college football “bowl” games. Held every New Years Day since 1916, the Rose Bowl also commemorates the civic work of the Pasadena Tournament of Roses Association, the sponsor of the annual flower festival, parade, and bowl game. Additionally, this was one of the venues of the 1932 and 1984 Olympics.”

Following is an excerpt from the official Rose Bowl web site at www.RoseBowl.com: “This uniquely American event began as a promotional effort by Pasadena’s distinguished Valley Hunt Club. In the winter of 1890, the club members brainstormed ways to promote the “Mediterranean of the West.” They invited their former East Coast neighbors to a mid‑winter holiday, where they could watch games such as chariot races, jousting, foot races, polo and tug‑of‑war under the warm California sun. The abundance of fresh flowers, even in the midst of winter, prompted the club to add another showcase for Pasadena’s charm: a parade would precede the competition, where entrants would decorate their carriages with hundreds of blooms. The Tournament of Roses was born.”

The popularity of the annual college football bowl game increased over the years.  As a result, there came a time when the game sold out, and some of the hopeful observers were disappointed.  One of these situations ended up in a California legal case.  At one point in time, the University of California at Los Angeles was selected to represent the Pacific Coast Conference in the annual Rose Bowl game.  Radio and newspaper advertisements were made which announced that there would be a public sale of 7500 admission tickets to be conducted at the Rose Bowl stadium.  Several hopeful observers came to the box office, and while waiting in line were given numbered “identification stubs,” which were to provide them with the opportunity to purchase two admission tickets to the game.  A total of 3,350 “identification stubs” were distributed, but after only 1,500 tickets were sold, the box office closed and announced that all of the available tickets had been sold.  The result was that most of the persons holding the “identification stubs” were never able to purchase tickets to the game.

Four of those persons who stood in line and received “identification stubs” filed suit for $100 in damages.  They each claimed that they had been “wrongfully refused” admission to the Rose Bowl game.  They filed the suit as a “class action” on behalf of all of those who had received “identification stubs” and stood in line but had been refused admission to the game.

The Court held that under the specific facts of this case, the complaint amounted to nothing more than an “invitation to such persons as may be interested to join with them in this action seeking relief.”  The Court did not allow the lawsuit to proceed as a class action.  The case is reported as  Weaver v. Tournament of Roses Association (1948) 32 Cal. 2d 833.

The scramble for Rose Bowl tickets has been around for a long time.  The year when this case was decided?  1948 – just three years after the end of World War II.

The moral of the story?  Get your tickets early.

Beachfront Property Complex

/in , /by

It’s been a busy end of the year – which means we haven’t seen as many Christmas DVDs this year as we might normally watch.  But some weeks ago, we did watch “Miracle on 34th Street.”  This is a charming movie from 1994 (which is actually a remake of a movie from 1947).  The movie concerns the reality of Santa Claus.  Richard Attenborough does a masterful job of portraying Kris Kringle in this heartwarming film about whether or not Santa Claus is real.  The climax of the movie occurs in a New York courtroom, where trial judge is called upon to determine whether or not Santa Claus actually does exist.  Following some fancy legal maneuvering, the trial judge makes a final decision, and there’s a happy ending all around.

It’s not every day that a lawyer gets to represent Santa Claus in court.  Dylan McDermott, who represents Kris Kringle in the film, does a great job of portraying the legal eagle who advocates Santa’s cause.  But what are the chances that most lawyers, or even any lawyer, would ever get a chance to represent the “Jolly Old Elf?”

The likelihood that any California lawyer might get a chance to represent Father Christmas in a legal matter may depend, at least in part, on how California Law views Santa Claus.  There are online legal databases that allow for word searches of all California cases.  So – if you were to do a word search of California legal cases, you’d find that the phrase “Santa Claus” actually does appear in a number of California cases. In one case, a police officer dressed up as Santa Claus and led a procession of motorcycles in a “pursuit for Kids Toy Ride.”  Amezcua v. Los Angels Harley Davidson (2011) 200 Cal. App. 4th 217.  In another case, a witness offered testimony at trial which the Court compared the testimony to a belief in Santa Claus.  People v. Moret (2009) 180 Cal. App. 4th 839.  And there’s even a case involving beachfront real estate – which is briefly described as follows.

The development of California’s coastal lands are regulated by law.  California beaches, or “tidelands,” are generally publicly owned.  This means that most tidelands and beaches are owned by the people of the State of California and not by private owners or investors.  However, there is a “line” where the beach “stops” and where private ownership of land begins.  This “line” is known as the “Mean High Tide Line.”  Land which is closer to the sea is “seaward” of the line and is owned by the public.  Land which is further from the sea is “landward” of the line, and such property can be owned by private individuals.  It’s very interesting to note that this property “line” does not stay a fixed location.  It changes over time with the level of the sea and the erosion or build-up of the shore.  It’s one of the very few property lines that can be constantly changing over time.

The California State Lands Commission is charged with the oversight of these beachfront lands.  The Commission adopted a policy which said that building, or development, is prohibited if it is any closer to the sea than position where the “Mean High Tide Line” has ever been.  In other words, if a parcel of land is presently located on the “landward” side of the line, but in the past it was located on the “seaward” side of the line, then the policy would prevent such landowner from ever building on such land.

In the case of Bollay v. California Office of Administrative Law (2011) 193 Cal. App. 4th 103, a landowner challenged the policy of the Commission.  Initially, the trial court held that the commission’s policy was valid and effective. But the Court of Appeal found that among other things, the policy would prohibit the development of land that is not now owned by the State of California and which may never in the future be owned by the State of California.  As a result, the Court of Appeal reversed the trial court and found that the Commission’s policy was invalid.

Notwithstanding this holding, the development of beachfront property involves complex legal considerations, and persons considering building, developing, or remodeling beachfront properties should consult appropriate legal counsel.

So how does such a case involve Santa Claus?  The beachfront property at issue was located on Santa Claus lane in Carpinteria.

Church Properties Subject to Law

/in , /by

Most kids in High School take a class in Civics or U.S. History.  And most of those kids will learn about the United States Constitution.  They’ll learn that the Constitution was amended by the Bill of Rights, and they’ll learn that the Bill of Rights is the name of the first 10 amendments to the Constitution.  They’ll also learn that one of those amendments provides that Congress may not pass any law concerning the establishment of a religion.  This is formally known as the “establishment” clause.  It’s more commonly known as “separation between Church and state.”  Less know, but equally true, is the fact that the California Constitution also prohibits the California State Government from making any “establishment” of religion.  This is found in the California Constitution at Article I, section 4.

This separation is so firmly embedded in our perspective that the thought of having a church that is favored by the government is completely foreign to us.  But not every country takes this approach.  For example, some countries have supported a state-favored church with tax money.  This can obviously provide such churches with an enormous benefit with respect to operational costs.

In the United States, the separation between church and state is almost taken for granted.  Most people in this country never even think about how the establishment clause might affect their daily lives.  Yet the establishment clause can have a real effect on peoples lives right now.

Here’s an example.  Suppose a local congregation owns a church building on land that is also owned by the congregation.  But suppose the congregation encounters a disagreement over a point of church beliefs.  If this disagreement becomes severe enough, then it’s possible that the congregation may split.  Each side could claim it holds the correct beliefs.  If the dispute becomes sufficiently severe, there could literally be a separation of the congregation.  If this were to happen, each side might claim that it is entitled to the church-owned land and building.

What happens if the dispute becomes severe enough that the dispute ends up in Court?  The result can be surprising.  In such a situation, a court would literally be called on to make a decision as to which group is entitled to ownership rights as to church property.  However, the courts are governmental entities.  Even though a court isn’t a legislative body, it is still one of the branches of government and courts can actually create law where none existed before.  As a result, courts are subject to the establishment clause.  This means that the courts can’t take sides, nor can they favor one religion over another.  Where a “heierchal” church structure exists, then in appropriate circumstances a court may look to the decision of the church heierchary for determination as to which group represents the “true” church.  And once the “true” group is determined, then a court may award the church property to the “true” group.  In other cases, ownership of the church building and property may be determined by the bylaws of the church, the deeds to the property, and other key documents relating to church governance.   These principles are generally discussed in Metropolitan Phillip v. Steiger (2000) 82 Cal. App. 4th 923.

What can be done in advance?  Local congregations that own real property may be able to avoid later problems by deciding in advance how they are going to hold title to their church property, the nature of their relationship with a larger church organization, and how they plan to handle any potential disputes concerning ownership and handling of church property.