The Year's New Laws
February 28, 2007
This year, several changes to diverse aspects of California real estate law will go into effect, if they have not already done so. A comprehensive analysis of all the modifications made would be prohibitive in these pages, but here are a few key changes that may affect the real estate professional's job, the developer's business or the relationship of the landlord and tenant.
Supreme Court Rules on MRL
February 28, 2007
The Supreme Court of California determined in January that the state Mobilehome Residency Law (MRL), codified at Civ. Code, ' 798 <i>et seq.</i>, does not preempt local rent control ordinances that allow mobilehome park owners to separately charge park residents for property taxes imposed on park land. <i>Cacho v. Boudreau</i>, 40 Cal.4th 341 (Cal.,1/11/2007) (Kennard, J.). The opinion clarified an apparent conflict between the MRL and the mobilehome rent control law then in force in the City of Chula Vista ' a local law similar to many rent control ordinances throughout the State. The decision also resolved a split among the Appellate Divisions as to which items may be considered components of 'rent' for which landlords may raise monthly rents without violating the anti-gouging provision of the MRL.
Husbands May Be Liable for Sexual Abuse of Wives
February 28, 2007
Although the marital exception to rape and forcible sodomy remained on the legislative books, the New York Court of Appeals in People v. Liberta, 64 NY2d 152 (1984), held that the exception ' which had previously shielded men from criminal liability for raping their wives ' was unconstitutional. It was a hard-won victory at the time for victims of such abuse and the feminist advocates behind them, but the extent of the protection the decision offered was limited; it applied only to rape and not to other sexual contacts that would be treated as crimes if perpetrated by anyone other than the victim's husband.
Manifestly Unfair Marital Agreements
February 28, 2007
In December 2006, Justice Laura Visitacion-Lewis of Supreme Court, New York County, held that a modification to a separation agreement was void ab initio and unenforceable. <i>D.M. v. K.M.</i>, 14 Misc.3d 1206(A), Slip Copy, (Sup. Ct., N.Y. Cty. 12/12/06). That case involved a woman who agreed to give up her rights under the original agreement according to which she would have received a large monthly maintenance payment, child support and custody of the couples' children. Although the Special Referee who first analyzed the case considered the modified agreement unenforceable because the ex-wife, an alcoholic, might have been impaired at the signing, the appellate court rescinded the agreement on another basis: The amended agreement was a product of the ex-husband's overreaching.
Case Briefs
February 28, 2007
Highlights of the latest insurance cases from around the country.
Class Action Claims: The Duty to Defend Before a Class with Covered Claimants Is Certified
February 28, 2007
A liability insurer's promise to defend its insured is at the core of the protection purchased by policyholders and, in most states, the insurer will be required to defend any suit alleging facts that possibly could result in a judgment against the insured that would be covered by the policy's duty to indemnify. A duty to defend will be found where the undisputed facts surrounding a claim — typically the language of the policy and the allegations of the complaint — permit proof of a claim potentially covered by the duty to indemnify. The complaint-allegations test, or what some jurisdictions term the eight-corners rule, results in the duty to defend being easily found by courts, commensurate with the broad contract language, and the policy's intention to afford the insured 'litigation insurance' protecting against the risk and burden of litigation.
'Posttermination Contract'
February 28, 2007
Reversing established precedent, a Fourth Department panel has ruled that when a parent is deemed unable to care for a child due to the parent's mental illness or retardation, the Family Court may determine whether 'some form of posttermination contact' is nonetheless in the child's best interests.
PA Court Refuses to Expand Scope of Third-Party Bad Faith Liability
February 28, 2007
Traditionally, courts have found bad faith in two contexts — when an insurer wrongfully denies coverage in a first-party claim and when an insurer's improper refusal to settle a third-party claim results in an excess verdict against the insured. Courts have recognized bad faith causes of action under these circumstances in light of the type of policy involved and the nature of the insured's interests that are at stake.
It's Time for a Joint Custody Presumption
February 28, 2007
New York State is a 'best interest' custody state that gives the courts a wide latitude to choose a parenting custody plan that is in the best interest of the children and family. DRL ' 240 specifically states: 'The court shall ' enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interest of the child.' The standard is well ensconced in cased law as well. How does this concept mesh with the Court of Appeals' decision in <i>Braiman v. Braiman</i>, which stated that courts should not impose joint custody arrangements on parents who are 'severely antagonistic and embattled' and who are unable to put aside their differences for the benefit of the children?
