“Drones are coming. Lots of them. They are fun and useful. But their ability to pry, spy, crash, and drop things poses real risks. Free-for-all drone use threatens air traffic, people and things on the ground, and even national security.” 1
Several industries are using unmanned aircraft systems, popularly known as drones, to support their business activities. Construction managers and surveyors use drones and specialized software to map construction sites,2 railroad and pipeline routes, and to monitor construction activities. Agricultural interests use drones to monitor crops for disease and adequate irrigation and also to apply insecticides and fertilizers. Realtors regularly use drones to enhance marketing of properties. Insurance adjusters and inspectors use them to investigate damage and to ascertain continued compliance with safety standards. They have become a regular tool of television stations supplementing ground-based and helicopter coverage of news stories. As the Federal Aviation Administration (FAA) gradually develops regulatory criteria for beyond-line-of-sight use, drones are taking on bigger roles in the inspection of pipelines, electric transmission lines, and railroads. Law enforcement agencies regularly use them for surveillance, hot pursuit, search and rescue, and monitoring riots and demonstrations.3 E-commerce vendors continue to work on package delivery drone systems. For lawyers, drones not only facilitate certain law-practice activities, but they also involve operators who need legal counseling and representation.
Join us in Washington, D.C., for ALI CLE’s upcoming program, Clean Water Act 2024: Law and Regulation. Attend in-person or live via webcast on October 17-18, 2024. Learn more about the program and stay in touch for program updates here!
The typical civilian drone is a quadcopter powered by rechargeable lithium-ion batteries, weighing about three pounds, costing from $600 to $12,000 depending mostly on camera quality and flexibility. A quadcopter has four rotors and flies more or less like a helicopter, able to hover, take off and land vertically, and maneuver sideways and backwards as well as forward. The Chinese firm DJI controls 70 percent of the market for small quadcopters with its Mini, Air, Mavic, and Inspire models.4 None of these vehicles of this class has endurance greater than 35 or 40 minutes, a characteristic that constrains their utility for some applications. Their top speeds rarely exceed 30 or 40 knots and their ceilings (maximum altitude) are around 1,000 feet above ground level. A few more expensive models, costing tens of thousands of dollars, are marketed for specialized functions requiring greater endurance and range. They typically are fixed wing configurations.
All of the commercially useful models carry high-quality cameras, as good as or better than the latest iPhone camera, and sophisticated control and navigation electronics that permit them to hover in place, orbit around a target selected by the operator, and return on command to a spot defined by longitude and latitude coordinates recorded when they take off.
They are flown by an operator standing on the ground using a small console with a video screen and joysticks. Higher end models also can follow an object selected by tapping on the operator screen and perform other maneuvers likely to produce captivating video. Full-motion video of HD quality and still images can be streamed in flight and/or saved on a memory chip. They typically use unlicensed frequency bands such as Wi-Fi for both the control link and for video feed. They know where they are over the ground by integrating inputs from GPS and photographic sensors.
Drone Law
Regulations promulgated by the FAA govern drone operation. They are contained primarily in Part 107 of the Federal Aviation Regulations,5 supplemented by Part 48 relating to registration of aircraft.6
Part 107 covers small drones—those weighing more than 0.55 pounds and less than 55 pounds. These “UAS,” as the FAA calls them, must be registered,7 and may be flown only by persons having remote pilot certificates.8 Remote pilot certificates are issued to persons who pass an online test of relevant aeronautical, regulatory, and meteorological knowledge. The test is roughly equivalent to a private pilot test, though considerably easier.
Drones may be flown only within the line of sight of the operator or a separate observer communicating with the operator9 and can be flown at night only if they have anti-collision lighting systems.10 They may not be flown over people unless they meet certain design requirements11 and may not be flown higher than 400 feet above ground level.12 Special limitations apply to operations near airports.13 Recreational, as opposed to commercial, drone operations by drones weighing less than 0.55 pounds are subject to a more lenient set of registration and pilot-licensing rules.14
Interested in learning more about the use of technology and artificial intelligence? Stay in touch for updates and check out ALI CLE’s webcast, Smart Contracts? Using Generative AI for Legal Drafting, on September 19, 2024!
The FAA is still developing its regulations for operations beyond line of visual sight (BVLOS). Such operations are believed to be safe only if conducted within a comprehensive radio-controlled airspace management system: an “Unmanned Aircraft System Traffic Management (UTM) system.” UAS operators would be responsible for managing their operations safely within UTM constraints. Communication and coordination would occur through a “distributed network of highly automated systems via application programming interfaces (API), and not between pilots and air traffic controllers via voice.”15 The FAA’s Aviation Rulemaking Committee released its final report on BVLOS operations by drones on May 10, 2022.16 The agency published a Request for Comments in the Federal Register on May 25, 2023.17 The Federal Communications Commission (FCC) has proposed to open the 5030-5091 MHz band for communications associated with drone airspace management.18
To facilitate migration of drones into the National Airspace System, the FAA requires that all drones that operate after September 2023 be equipped with specialized transponders similar to, but different from, the ADS-B transponders already required on most manned aircraft.19 The drone transponders must broadcast drone identification and position information at one-second intervals. These signals are expected to be received and processed by a collection of private sector airspace management entities certified by the FAA.20
Airworthiness certification is required for drones weighing more than 55 pounds, automated fleet operations, drone flight beyond the range of visual line of sight, or sustained flight over people. Airworthiness certification is an elaborate process requiring testing and FAA approval of design and performance details,21 although the agency is offering streamlined airworthiness approval for some complete drone systems.22
State and local regulation is preempted except when it relates to traditional tort categories or unique local conditions.23 Nevertheless, attempts by municipalities are common. States are preempted from regulating aviation activities in the national airspace because the United States Congress has occupied the regulation of national airspace field. Uncertainty persists, however, on the lower limits of federal airspace.24
The FAA has issued guidance on preemption.25 Preempted state laws include regulations: (i) restricting flight altitudes or flight paths in order to protect the safety of individuals and property on the ground or aircraft passengers; (ii) designating “highways” or “routes” for UAS; (iii) regulating the selling or leasing UAS-related air rights above roadways; (iv) establishing a licensing scheme for UAS pilots; and (v) mandating safety-related equipment such as geo-fencing.
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Lawyer.
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The 2023-24 Supreme Court term has been one of significance in the world of property rights. Two unanimous cases in particular directly addressed takings: Sheetz v. County of El Dorado, 601 U.S. (2024) (holding that the Fifth Amendment’s takings clause does not distinguish between legislative and administrative land-use permit conditions) and DeVillier v. Texas, 601 U.S. (2024) (holding that property owners adversely affected by a flood evacuation barrier should be permitted on remand to pursue their takings clause claims through the cause of action available under Texas law).
Check out this webcast to better understand the importance of these decisions, as well as other property issues in the Court this year and what these cases mean for your practice.
Join us in San Diego, CA, in 2025 for ALI CLE’s upcoming program, Eminent Domain and Land Valuation Litigation 2025. Attend in-person or live via webcast on January 30-February 1, 2025. Learn more about the program and stay in touch for program updates here!
Featuring a faculty composed of the property owners’ lawyers in DeVillier and Sheetz as well as a distinguished law professor, this program will examine:
What the Supreme Court decided – and avoided deciding – in Sheetz and DeVillier
Why the concurring opinions are important
What these decisions may tell us about the Supreme Court’s direction in eminent domain and property law
Which issues remain for resolution
Join us for an enlightening discussion and get an inside look at these significant decisions and how they will apply to your practice.
Register now and explore how these decisions may impact takings and property law, now and into the future!
Detailed Factual Findings on Public Benefit are Required
In re Gen. Mun. Auth. of City of Nanticoke involved a private benefit challenge to a proposed taking allegedly for construction of affordable elderly housing.1 In consolidated cases, the trial court overruled both a facial challenge to the state Municipality Authority Act (MCA) and case-specific challenges that the actual nature of the taking was for more than an incidental private benefit.
On appeal, dismissal of the facial challenge was upheld on grounds that the language of the MCA violated neither the federal baseline reiterated in Kelo v. City of New London2nor Pennsylvania’s common law. The case was remanded for further proceedings to determine whether the taking would result in more than an incidental private benefit. To inform proceedings on remand, the appeals court provided an explication of the different public use tests under state common law and the more protective, post-Kelo, Private Property Rights Protection Act (PPRPA).3 Noting the legislative intent to curb “abuse of the eminent domain power,” the court explained that the PPRPA prohibits taking property “to use it for private enterprise,” which is a more protective standard than the common law test, “solely for private enterprise.”4
Join us in San Diego, CA, in 2025 for ALI CLE’s upcoming program, Eminent Domain and Land Valuation Litigation 2025. Attend in-person or live via webcast on January 30-February 1, 2025. Learn more about the program and stay in touch for program updates here!
Against this backdrop, the court identified gaps in the factual record and questions about how the development authority intended to use the properties and to whom the primary benefits would inure.5 The court concluded that the record was not sufficiently clear regarding: (i) what the referenced entities were and what role they would play in the project; (ii) the magnitude of the benefits to named entities and the unnamed “equity investor”; and (iii) the existence of public need for the alleged benefits and the actual benefits that would flow toward those needs.6 On remand, the trial court was directed to conduct a de novo hearing on these delineated factual issues.
Ability to Reconvey Taking to Private Developers Does Not Negate the Original Public Use
In Penney Prop. Sub Holdings LLC v. Town of Amherst, the owner of 2.3 acres of land that was leased and operating as a JC Penney department store unsuccessfully sought to annul a condemnation determination to take 62 acres of land predominantly comprised of a mall.7 The court denied a lack of notice challenge despite the fact that two of the three required means of notice of the public hearing failed (certified mail notice was never delivered and the secretary of state did not send alternate notice until after the hearing). The court ruled that notice by publication alone sufficed because the town was not informed before the hearing that the means of individual notice had failed.
The court rejected the owner’s other public use challenges finding sufficient evidence that the targeted property was within an “[a]rea of economic underdevelopment and stagnation” and that the possibility of re-transfer to private entities did not negate the instant public purpose of acquiring land within a stagnant area.8
No Strict Construction of “Commercial” Use to Exclude Parking Predominantly for Healthcare Providers
In Bowers Dev., LLC v. Oneida Cnty. Indus. Dev. Agency, the Court of Appeals of New York reversed the appellate division’s denial of a redevelopment taking, holding that an industrial redevelopment agency could condemn land at the request of an adjacent landowner to provide parking for the adjacent landowner’s planned development of a medical office building.9 The owner of the targeted parcel and the developer who had contracted to purchase it from the owner co-petitioned to annul the condemnation determination, and the appellate division granted the petition. In reversing, the court held that the envisioned parking for medical office tenants, retail tenants, and night usage for the public sufficiently met the “commercial use” criteria of the agency’s statutory authority.10 The challenger’s argument that the parking would be for health-care, not commercial, purposes failed because of the overall commercial nature of the building to provide office space to rent-paying tenants.
Taking Upheld Even Though Proposed Project Deviated from Plan
Niagara Falls Redevelopment, LLC v. City of Niagara Falls involved a multi-faceted challenge by landowner/developer to a redevelopment taking by Niagara Falls.11 The developer argued that the city had not established how it would pay for its proposed project, the city had failed to conduct a market study as required by its own Comprehensive Plan, and that the plan also set forth predetermined public use for the subject parcel that would involve Redevelopment LLC. Never mind all that, said the court. It reasoned that these considerations were outside of the court’s limited review under the redevelopment statute and that, in any event, the plan provisions could not bind future councils. The court also went on to reject contentions that the take parcel was not described with adequate specificity (it had only been described by tax parcel and street address) and that the city had not timely issued its written synopsis of its determination, finding that the one-day tardiness was harmless.
Bald Conclusions Do Not Satisfy Necessary Blight Findings
In Twp. of Cinnaminson v. Cove House LLC, an appellate division reversed a trial judge’s approval of condemnation for “blight” where the Township of Cinnaminson (Township) presented a 2013 expert report and some testimony about the current condition of old residences it wished to redevelop upon which the trial judge found the Township had satisfied what he viewed as a low evidentiary burden.12 The trial judge found the evidence presented satisfied one statutory blight criteria:
Areas with buildings or improvements which, by reason of dilapidation, obsolescence, overcrowding, faulty arrangement or design, lack of ventilation, light and sanitary facilities, excessive land coverage, deleterious land use or obsolete layout, or any combination of these or other factors, are detrimental to the safety, health, morals, or welfare of the community.13
In granting the taking, the trial judge noted some evidence in the record to support the Township’s findings which he was constrained to second-guess, stating:
So [the Township does not] need that much to connect the dots. I mean the standard is if there’s evidence in the record and there is evidence in the record, I’m not supposed to second-guess the judgment of the Township in that regard. There’s some evidence in the record that an expert testified, who has expertise, appropriate expertise in this area, and testified as to obsolescence and that the obsolescence was detrimental.14
The problem with this, however, was the conclusory nature of the expert report, the Township’s findings, and the trial court’s acceptance of them. In reversing, the Appellate Division sternly reminded that “a standard that requires ‘substantial evidence’ does not bespeak ‘a relatively low evidentiary threshold.’”15 Relying on the decision of the New Jersey Supreme Court in Malanga v. Twp. of W. Orange, issued just months before, the Appellate Division noted the blight statute “‘does not ask whether property could potentially be more useful or valuable; it requires proof of a current problem, such as ‘dilapidation,’ ‘obsolescence,’ or ‘overcrowding,’’” and further that it does “not presume harm; it requires a showing of actual detriment.”16 To illustrate the inadequacies of the Township’s evidence, the Appellate Division elaborated:
[The expert] proclaimed in her report the property’s “land use [was] deleterious and obsolete and the design [was] faulty” and its driveways were “inadequate” and “detrimental” to the community. But she did not identify what, if any, underlying characteristics of the property had led her to reach those conclusions and did not give any detail to support those blanket statements. She asserted the buildings needed to be “upgraded” and that the property needed “site improvements,” but she did not specify what upgrades or improvements were needed. And those details are critically important in making and reviewing a redevelopment determination.17
Interestingly, Malanga involved a successful citizen challenge to a municipal determination that its own public library was blighted, which allowed the Township of West Orange to sell the land to a preferred developer instead of selling it under competitive bidding laws. In reversing lower courts that had validated this action (and proceeding with the case despite the pendency of a sale contract to a redeveloper), the New Jersey Supreme Court held that the Township of West Orange had not demonstrated the necessary requirements under the blight.18 The court held that the record lacked evidence that: (i) the library suffered from “obsolescence” even though it lacked modern infrastructure and could function better: and (ii) the library’s condition was detrimental to the public welfare.19
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Real Estate Lawyer.
To find our more about ALI CLE’s in-person courses or webcasts, or to check out on-demand CLE, click here.
This article is part of the continuing series of interviews between, published in The Practical Lawyer, Rajiv S. Khanna, principal of The Law Offices of Rajiv Khanna, and leading practitioners across the country, designed to provide personal and professional insights into various areas of the law.
Rajiv: Let’s begin with an introduction of who you are, what you do, how you got here.
Robert: My name is Robert Thomas and I’m a lawyer with the Pacific Legal Foundation, a public interest law firm that represents people for free in court. But I also spend a lot of my time as a law professor. During the fall, I teach property law at the William and Mary Law School in Williamsburg, Virginia.
What is the trajectory of your legal career? Where did you think you were going to go and how did you end up where you are?
In a completely different place than I would have imagined if you’d asked me during law school. I attended the University of Hawaii Law School and got my JD there in the late 1980s. And, yes, attending the University of Hawaii Law School is about as pleasant as a law school can be. When I was going through law school, I imagined that I would be a courtroom lawyer practicing criminal law, but I had the good fortune, during the summer between my second and third years, to clerk for a private law firm in downtown Honolulu where one of the first cases I handled happened to be a property case. I was sure that property was not of interest to me before that, based upon, among other things, my grade in my Real Property class, but also because being a courtroom lawyer doing criminal law seemed really appealing. I had no idea that the practice of property law was so different than the study of it, especially your first-year basic property class. And I was just hooked. So the roadmap suddenly veered off in a 90-degree direction. A majority of my practice ended up being in property, eminent domain, inverse condemnation, land use law, and the related topics. Because I was practicing in a mid-to-small market where it is very tough to specialize in a particular area, I had to do a lot of other things. I was doing appeals, occasional criminal law, voting rights, and election law, but the main focus always remained property. I have a completely unplanned career that somehow seems to be working out pretty well.
What do you like about the practice of property law as opposed to other areas of law that you’ve been exposed to? What makes this special for you?
What’s really nice is when you’re dealing with the property law in the areas I deal with—the question or the relationship between property owners, their neighbors, and the government—there’s a lot of what I would call “running room,” a lot of room to be creative. Modern land-use law only really started coming around about 100 years ago. And while it’s a pretty substantial body of law, there still are a lot of unresolved questions where creative thinking, as well as the constitutional requirements you overlay on top of that, becomes necessary. And so that’s what I appreciate the most out of it. I had a partner early on in my career, a mentor, who told me that if you’re practicing in a place like Hawaii where land is probably the scarcest commodity, you’ll never be out of work. From a very practical matter, that really helped guide me. And he was absolutely right. Despite cycles in the economy in a place like Hawaii, very tied to the tourist economy, the one thing that we were never short of were cases and disputes involving property, land, how land is used, how those resources are allocated, how it interacts with environmental concerns, maybe population and antidevelopment concerns. And yet there are people who need to live in a place where the median home price is hovering just over a million dollars.
That’s a function, of course, of the physical size of the islands. But it’s also due to the difficulty in building a home. The impacts of the regulations that one has to go through in order to build something like a single-family home is something like $200,000, last I checked, which is pretty significant. And that is also accurate for a national practice in land use, as regulation of the private uses of property becomes more stringent.
So to answer your question, it just was an area that was metaphysically kind of fascinating. What does it mean to “own” something is something that I think it doesn‘t take a law degree to understand and yet, at the same time, the layers of what that means are just fascinating to me. To get to put that into practice and to do it every day just makes for very interesting work.
I take it that you are one of the very few at the bar who do not wake up screaming about the rule against perpetuities?
No. I found out as a law professor, when I asked my students who are all 2Ls or 3Ls, if they still study the rule against perpetuities. Surprisingly, a couple of them told me no. And I laughed and asked why not. And they said, “Well, our professor said it was an archaic thing, never used, you’ll never do a case.” One, I understand from some of them who recently took the latest bar exam, that in one jurisdiction at least it was a bar exam question, which is unbelievably cruel on the part of the bar examiners of that state. And then two, that same mentor that I mentioned earlier? He actually argued in the Hawaii Supreme Court a rule against perpetuities case. And he said, “They told me as a student this was completely useless information, but here I am actually arguing what that rule means.” And so I tell people to be careful if you don’t study something like that. It’s going to come up. But yes, thankfully I have avoided that question. I tell the students who are taking wills and trust that they should know it, because that’s where it actually comes into play.
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Real Estate Lawyer.
Join us for our upcoming program, Eminent Domain and Land Valuation Litigation 2024, either in-person or via live webcast on February 1-3! Hear more from Robert H. Thomas and more experts in the field. Learn more about this upcoming program here.
In State ex rel. Ohio History Connection v. Moundbuilders Country Club Co., the Ohio Supreme Court held that the taking of the Country Club’s lease for the property served a public use.1 The Ohio History Connection, a state agency, sought to extinguish the Moundbuilders Country Club’s lease on the Octagon Earthworks land using the power of eminent domain. The agency wanted to convert the earthworks into a public park and nominate the structures to the World Heritage list as part of the interconnected Hopewell Ceremonial Earthworks. The Country Club objected, arguing that the taking was not in the best interest of the public as a whole.
The Ohio Supreme Court disagreed, holding that establishing the earthworks as a public park will “help preserve and ensure perpetual public access to one of the most significant landmarks in the state of Ohio.”2 In a dissenting opinion, Justice Sharon L. Kennedy argued that Norwood v. Horney,3 (a case most readers will be familiar with) required that the Country Club’s allegations be resolved by the trial court, not disposed of by law-and-motion. The dissent argued that the “contingent and prospective” nature of World Heritage designation did not justify the exercise of eminent domain.4
“Take now, decide later” isn’t a public use
HBC Victor LLC v. Town of Victor is a classically short opinion from the New York Supreme Court. It’s so short that we were tempted to simply post the opinion and let you read it, because it will probably take you just as long to read our summary, but we’re up to the challenge of making our summary even shorter than the opinion, so here goes.5
The town wanted to take property “connected to an enclosed regional shopping center known as Eastview Mall[.]”6 Until Covid-19, the property was occupied by a retail department store, but the store closed permanently in February 2021. The owner tried to get a new tenant but, unsurprisingly, came up short.
Perhaps sensing an opportunity, the Town sought to condemn for redevelopment, but its resolution of taking did not specify why it wanted the property:
The proposed Acquisition is required for and is in connection with a certain project … consisting of facilitating the productive reuse and redevelopment of the vacant and underutilized Proposed Site through municipal and/or economic development projects … by attracting and accommodating new tenant(s) and/or end user(s).7
Even in condemnor-friendly New York, this one should raise a red flag. “In its determinations and findings, the Town stated that ‘no specific future uses or actions have been formulated and/or specifically identified.’”8
When you draft your findings like that, condemning agency, shame on you. (Kudos, however, for your honesty.)
Pointing to a recent similar case by the Second Department, the Appellate Division concluded that “[b]ecause the Town has not indicated what it intends to do with the property, we are unable to determine whether ‘the acquisition will serve a public use.’”9 The court rejected the Town’s argument that the government can take property for redevelopment without a particularized plan. The public use for the taking is determined at the time of the taking, and simply speculating that the taking will produce future public benefits isn’t enough: “In simple terms, the government cannot take your land and then decide later what to do with it without running afoul of the Takings Clause.”
Further, there was no indication or claim that the property here was blighted, even under New York’s notoriously low standards for blight:
To the contrary, the evidence at the public hearing established that petitioner has cleaned and maintained the premises since the Lord & Taylor vacancy and continues to pay property taxes at the assessed value of more than $4,000,000. We do not equate mere vacancy with blight, especially when the vacancy occurs unexpectedly in the midst of a global pandemic.10
Taking invalidated; attorneys’ fees to the owner. Think the Town will have another go at it? If so, think it’ll draft the resolution the same way (or will it heed Justice Scalia’s Lucas11 dictum)?
Waiver of future claims includes reclaim statute
Colton v. Town of Dubois is a good reminder that when you settle a case, you settle the case.
Wyoming is one of those jurisdictions that has “I want it back” provisions, where if property is not actually used for a specified number of X years after it is acquired by the government, the owner may ask for it to be returned. In Wyoming, the term is 10 years:
If a public entity acquires property in fee simple title under this chapter but fails to make substantial use of the property for a period of ten (10) years, there is a presumption that the property is no longer needed for a public purpose and the previous owner or his successor may apply to the court to request that the property be returned to the previous owner or his successor upon repayment of the amount originally received for the property in the condemnation action. A public entity may rebut the presumption created under this subsection by showing good cause for the delay in using the property.12
Back in the day, Craig Colton and the Town of Dubois got into a fight over land apparently needed (or wanted) for the municipal airport. Colton sued for inverse condemnation, and “and sought to prevent the Town from condemning any portion of the property.” 13 After a bench trial, the court rejected Colton’s arguments and concluded that the Town could take 30 acres of property after a determination of compensation.
But peace prevailed before the compensation hearing took place and the parties settled. The Town would pay an agreed-upon amount and would acquire the 30 acres from Colton. Critically, the settlement agreement “contained several terms releasing the Town from all past, present, and future claims related to the disputed 30.17 acres.”14
Ten years passed. Apparently, the Town didn’t make use of the property and Colton wanted it back. He sued, seeking to reclaim it. The trial court granted the Town summary judgment and the Wyoming Supreme Court agreed. The court concluded Colton waived his statutory rights by executing the settlement agreement, even though, yes, the Town acknowledged it had not used the property for the airport. (This is a true waiver situation—not the more usual forfeiture by inaction—since Colton knowingly gave up his right to reclaim.)
The court first accepted that the Town acquired Colton’s property in a way that triggered the statute because it was acquired under the threat of condemnation. Next, the court concluded the statute was in force at the time of the settlement, and therefore Colton is assumed to have known about it. The court also concluded that Colton intended to relinquish his statutory rights because the agreement unambiguously says so in the “Statement of Purpose” and “Release” provisions. There, the agreement notes the agreement is to resolve all claims, including future claims:
The stated purpose of the settlement agreement is to resolve any claims the parties “may have in the future arising out of or in any way related to the above taking[.]” This purpose is further reflected in the terms of the settlement agreement … The release provisions are broad but nonetheless unequivocal in expressing Mr. Colton’s intent to waive “any and all” future claims, “related in any way” to the condemnation action, which would include any claims he had pursuant to Wyo. Stat. Ann. § 1-26-801(d).15
Finally, the court noted that the waiver is in accordance with public policy (an element of waiver under Wyoming law). We like the freedom to contract, and we like settlements, the court concluded.
So, what lessons can we take from this? When you settle, you settle. Done. Finis. Unless you want to hold on to some rights (in which case you don’t agree to language that waives your rights so broadly). But don’t be surprised if the other side really insists on that language. And that points to another option: if you want to retain your rights, don’t settle. The waiver of future rights is just one of those things that parties have to assess the risk of when they are deciding on fight or flight.
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Real Estate Lawyer.
