REALLY, DON’T THREATEN YOUR CITIZENS WITH LEGAL ACTION BECAUSE THEY MADE NEGATIVE COMMENTS ABOUT YOUR TOWN
I have written a couple of posts recently about a smackdown administered to a town in Iowa that had its attorney threaten a citizen with legal action because the citizen wrote disparaging comments about the town. If you want to read the town’s abject surrender after it was sued by the ACLU on behalf of the citizen, Lowering the Bar has posted the injunction that was agreed to by the town, as well as the complaint.
MESSAGE TO MUNICIPAL GOVERNMENTS - DON’T THREATEN TO SUE YOUR CITIZENS FOR MAKING DISPARAGING COMMENTS ABOUT YOUR TOWN
Remember that town in Iowa whose attorney threatened a citizen with a slander of title claim for making disparaging comments about the town? The town got smacked down by a federal judge and agreed to apologize, pay damages to the citizen, and pay the citizen’s legal fees.
A welcome, but not too surprising, outcome.
A while back I wrote about a law adopted in Seattle that forces residential landlords to rent their properties to the first minimally qualified applicant, regardless of other factors. I pointed out that such a requirement would likely lead to a reduced supply and higher prices for rental housing.
Now comes word that a Washington Superior Court judge has invalidated that law, on the ground that it deprives property owners of the right to freely dispose of their property, which the court recognized as a fundamental attribute of property ownership.
Nobody is suggesting that a property owner should be free to refuse to sell or rent property based on the prospective buyer/tenant’s personal characteristics. The problem here is that in an effort to prevent any possible discrimination, lawmakers are taking away a basic liberty that should be enjoyed by everyone. If I choose to eat at one restaurant over another because the wait staff at the first restaurant treats me better than the wait staff at the other restaurant, shouldn’t I be free to make that choice?
Now, why isn’t the District of Columbia law that mandates a right of first refusal for residential tenants when the landlord wants to sell his or her property, invalid for the same reason that the Seattle law was found to be invalid?
I don’t get what’s going on with residential landlords and tenants in Washington DC. I don’t get much of anything that goes on there, but this is something that I thought I knew something about. There’s a law on the books there that requires a residential landlord to give a tenant a right of first refusal if the landlord decides to sell the property. The law seems to be predicated on the notion that the tenant’s right to remain in the property can be terminated by a change of ownership.
But that’s not how it works, at least in jurisdictions like Arizona where common law property rules still have some vitality. If I rent my property (whether it’s residential or commercial) to you under a lease for a term of months, you have the right to stay in the property for the length of that term whether I continue to own the property until the end of the term or not. I can transfer ownership of the property to someone else if I want to, but that ownership is subject to your lease until the lease expires. Once the lease expires, however, I can terminate your occupancy whether I want to move into the property myself, sell it to someone else who wants to occupy it, or lease it to someone else.
Nice try, attorney representing a town that tried to silence a critic. Unless the law in your state is vastly different from the law everywhere else that I have ever heard of on this topic, slander of title has a specific meaning: doing something that affects title to or an interest in a specific parcel. Negative comments that allegedly diminish the value of all property in a municipality do not constitute slander of title, unless the municipality owns or has a mortgage on all the property within its boundaries. The fact that the municipality taxes all property within its boundaries based on the value of each parcel doesn’t give the municipality an interest in the property.
That’s without even mentioning the obvious violation of the critic’s First Amendment rights.
Remember the saga of the Bhagwan Shree Rajneesh from back in the 1980s? I remember it mostly because of the series of “Bloom County” comic strips about it that appeared shortly after the Bhagwan made headlines.
It turns out that there was a land use angle to the story. You may or may not recall that the Bhagwan started a commune on land that he and his followers (the “Rajneeshees”) purchased in a rural area in Oregon. The land use angle is that government agencies and growth-control advocates used Oregon’s stringent land use controls to thwart the Rajneeshees’ efforts to build permanent housing on their land. Their planned community supposedly would have housed several thousand people.
Antiplanner has more of the story, including a link to a documentary on the Rajneeshees that’s now out on Netflix.
We still have in our house the “Bloom County” comic book that includes that series of strips. Now I’m going to have to find that series and read it again.
Why do advocates feel compelled to blatantly overstate their case? It may fool the uninformed, but it undermines the advocates’ credibility with people whose opinions matter (such as, in the situation I’m going to reference in a second, the county supervisors and the judge presiding over their lawsuit). Some examples from a muckraking article that appeared at AZCentral.com on February 28:
The “gravity of pollution from [the egg farms is comparable to the water contamination in] Flint, Michigan, where dangerous levels were found in the drinking water?” The pollution from the egg farms is ammonia in the air. That’s really as harmful as lead in the drinking water?
Egg farms “are now factories – they are manufacturing plants, there’s no bones about it.” An agricultural operation pollutes to the same degree as a manufacturing plant? Never mind that there’s no comparison between an agricultural operation and any manufacturing facility using chemicals. Let’s just talk about smell. Have you ever lived near a paper mill?
And finally, no, Tonopah and Arlington are not “on the western edge of metro Phoenix.” They are closer to the Palo Verde Nuclear Generating Station, west of Buckeye, than they are to Buckeye, a historically (and currently) agricultural community that could be considered on the western edge of metro Phoenix.
Now, none of those overstatements are from the residents who are complaining about the egg farms in western Arizona. They are from advocates. But as an advocate, I’m here to tell you that overstating your case to that degree is not effective advocacy.
The situation with the egg farms doesn’t sound like it implicates the hoary, and confusing, legal concept know as “coming to the nuisance.” I’ll have to discuss that some other time.
The Antiplanner has the photos. No, it’s not in California. It’s in Sydney, Australia. I guess housing prices there are just as ridiculous as in California.
You’d think there is plenty of room for new housing in Australia. But then, you’d think the same would be true in California. The Antiplanner’s point is that housing prices are higher than they would be otherwise because of government constraints that artificially restrict the supply of housing. I think he could be right.
PRIVATE LAW FIRM INSTALLED AS MUNICIPAL PROSECUTORS, BILLS VIOLATORS FOR COSTS OF THEIR PROSECUTIONS
It’s in California, of course. Nice work if you can get it, until you get sued by the Institute for Justice.
Note that the law firm couldn’t have set this up without action by the legislative bodies of the cities to install the law firm as the city prosecutors.
IJ says that the setup violates a rule against prosecutors having a personal financial stake in the matters they prosecute. I guess that’s different from government agencies engaging private counsel on contingent fees to pursue lawsuits against private businesses, because that reprehensible practice has been going on for some time.
THIS MONTH'S REAL ESTATE LAW UPDATE IS ABOUT THE RULES OF THE ROAD FOR YOUR HOMEOWNERS' ASSOCIATION'S DESIGN REVIEW COMMITTEE
A faithful reader, appraiser Steve Cole, suggested that in my next Update on the subject of homeowners' associations, I should discuss the ins and outs of architectural review, also known as design review. If you have ever lived in a neighborhood governed by, or otherwise had to deal with, a homeowners' association, you have probably heard about the architectural review committee. The architectural review committee is the arm of the homeowners' association that is charged with making decisions implementing the association's aesthetic guidelines. In other words, they get to decide whether or not your house addition, patio wall, or new landscaping will be approved under the association's rules.
Read all about it in my latest Real Estate Law Update, posted in the publications section of deconcinimcdonald.com.
The contents of this blog, this web site, and any writings by me that are linked here, are all my personal commentary. None of it is intended to be legal advice for your situation.