Author: JGL Law

On June 26, 2013, the United State Supreme Court issued its 5-4 opinion in the case of United States v. Windsor. This opinion found that section 3 of the Defense of Marriage Act (DOMA) was unconstitutional.  Section 3 defined the word “marriage” to mean “only a legal union between one man and one woman as husband and wife, and defined the word “spouse” as only person of the opposite sex who is a husband or a wife.  1 U.S.C. §7.

With this ruling, the high court changed the coverage of over 1000 federal laws and many 1000s of regulations promulgated thereunder, that use marital status to confer, withhold or affect person’s federal rights. While the Court’s majority opinion does not actually come out and say that the decision is based on a Federalism argument, it hints at it. The Court essentially has now re-affirmed that it is the states that have the power to continue to be the final word on family relations.  What this means is that there will still be plenty of unanswered questions surrounding real property rights of same sex marriages so long as some states permit and recognize same sex marriages while others adhere to the traditional definition of marriage.

Thus, far twelve states (Maryland, Massachusetts, Connecticut, Iowa, Vermont, New Hampshire Minnesota, Rhode Island, Delaware, Washington, Maine and New York) and the District of Columbia have legalized same-sex marriages. While those laws may have settled the big question on who can get married, they raise a number of practical real estate questions.

One question arises from the manner in which co-owners hold title to their property. Traditionally, co-owners can own their property as tenants in common or as joint tenants with rights of survivorship. Married couples have the additional advantage of being able to own real property as tenants by the entirety. Now, same-sex couples can own real property as tenants by the entirety. What does this mean and why is it relevant?

Tenants in common each share their percentage interest in the real property. Business partners typically use tenancy in common as their preferred way to hold title. Each co-owner can sell and/or borrow against his percentage interest in the property. One main attribute is that each co-owner can bequeath his interest in his will. Each co-owner’s creditors can attach that co-owner’s percentage interest in the real property to satisfy their claim.

Joint tenants with rights of survivorship are each deemed to own their pro rata interest in the real property. If there are two joint tenants, then each is deemed to own a 50 percent interest. A joint tenant cannot sell or borrow against his interest. Any attempt to do so will convert the joint tenancy into a tenancy in common. A joint tenant also cannot bequeath his interest. By definition, when one joint tenant dies, his interest automatically gets transferred to the surviving joint tenant. Many same-sex couples use the joint tenancy to ensure that upon death, their partner becomes the 100 percent, sole owner. However, one main drawback is that property held in a joint tenancy is vulnerable to the claims against all other joint tenants.  So for example, if one joint tenant is held liable for a car accident, and has a judgment entered against him, that judgment is a lien and will attach to his interest in any real property he owns.

The strongest way to hold title, available only to married couples, is the tenancy by the entirety. Like the joint tenancy, the tenancy by the entirety has the attribute of survivorship. Meaning, when one tenant dies, the surviving tenant automatically becomes the sole owner. The reason this is considered to be the strongest form of ownership is that the claims of one tenant’s creditors do not attach to the real property owned by the tenancy by the entirety. The one exception is if the creditor is the Internal Revenue Service.

After Windsor, same sex couples who now own real property as joint tenants, and who marry, should consider re-titling their property as tenants by the entirety.  Re-titling is a relatively simple matter. All that is involved is to prepare and record a new deed. Deeds to modify the tenancy are exempt from transfer and recordation taxes in all three local jurisdictions.  Re-titling will allow married same sex couples to enjoy the protections against creditors that the tenancy by the entirety provides? Unless estate planning dictates otherwise, tenants in common should also consider re-titling their property into a tenancy by the entirety.”  Until states recognize same sex marriages, transfer and recordation taxes between “spouses” will need to be factored into any re-titling decision.

Since the Windsor case, was itself an estate tax case, it did resolve the issues of the disparate treatment of same sex couples for state and federal estate and gift tax purposes. Since many other provisions of the federal estate and gift tax statutes now cannot apply the traditional definition of marriage and spouse this decision will have significant impact on same sex couple estate plans as well.  It would appear that since federal estate and gift tax laws can no longer use the traditional definition of a marriage or spouse, they will look to each state’s definition for guidance. But this of course can always be supplanted by additional federal legislation and accompanying regulation.

Additional questions arise when same-sex couples residing in Maryland or the District own property in a state that has not yet legalized same-sex marriage: Can or should that couple re-title their second home or investment property? What happens when one partner dies? Which state’s inheritance laws apply?

The answers depend on the state where the property is located. For example, in states which currently recognize civil unions, but not gay marriages, same-sex couples can hold real property as tenants by the entirety, but in order to re-title property already owned, the law requires that all lenders consent to such change.  For example, in Delaware,  clients with second homes have not experienced any problems obtaining lender consents. However,  in Virginia, which does not recognize same-sex marriages, civil unions or domestic partnerships, a joint tenancy with rights of survivorship remains the strongest form of ownership available.

At the federal level, the Garn-St. Germain Act provides that real property transfers between spouses are exempt from the “due-on-sale” clauses contained in virtually all mortgages. It appears that when a same-sex couple resides in a state where gay marriage is legal, transfers between those partners will also be exempt. But what about when that same couple seeks to transfer property located in a state that does not recognize their marriage? Will they be subject to the onerous due-on-sale clause that permits a lender to declare the loan to be in default and accelerate the entire unpaid principal balance? The recent Windsor decision would appear to leave this as an open question. The penultimate sentence on the majority opinion states that “This opinion and its holding are confined to those lawful marriages,” i.e., marriages which are already lawful in the 12 states making same sex marriages lawful.

These issues are far from clear. As with most radically new laws, it will take many years for the regulations and subsequent court cases to clarify just how the new laws will apply to the various real world scenarios impacted.  Regulators and jurists should use this opportunity to re-think whether marital status should be a factor at all when determining federal and or state private property rights.  If all persons were treated equally under both state and federal laws regardless of their sex or marital status, cases like Windsor would never be necessary. Perhaps striking of Section 3 of DOMA is a good first step toward a gender and marital neutral world.

* This article was previously published in the August 2013 issue of Title News, the National publication of the American Land Title Association (ALTA).

The False Claims Act (FCA), originally conceived by Abraham Lincoln during the Civil War, has been an effective tool for the Government to recover funds fraudulently taken from all types of government programs from national security to Medicare for over a century and a half.  But like all statutes, the FCA has its limitations, including time.  Until recently, it was believed that with little exception fraudulently taken taxpayer funds could be recovered only for a period of six years prior to the filing of a complaint.  31 U.S.C. § 3731(b).

Enter into the FCA arena a little used or known law from the 1940s, the Wartime Suspension of Limitations Act (the “WSLA”). The WSLA tolls the statute of limitations in cases of fraud committed during wartime against the Government “until five years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress.” 18 U.S.C. § 3287.  Several courts, including the United States Court of Appeals for the Fourth Circuit, have held that the wars in Iraq and Afghanistan triggered the WSLA such that FCA claims have been tolled since 2001.[i]  Additionally, there does not appear to be limitations to the type of FCA fraud at issue.  As one Court held in June, the WSLA is not limited to “war frauds”, i.e. “frauds related to the administration of the war” but applies to all types of FCA cases, including fraud against medical programs like Medicare and Medicaid.[ii]

The application of the WSLA to FCA cases is undergoing an evolutionary process, and courts have much more work to do on the proper application of the WSLA to the FCA’s statute of limitations as litigants test its limits.  At the very least, these recent decisions demonstrate that claims long thought to have been extinct can be potentially resurrected and that existing FCA claims can reach fraud that occurred twelve years ago in some cases.

 

Many employers and certainly many employees may be shocked to learn that “Paruresis,” commonly known as “shy bladder syndrome” or the inability to urinate with others present, qualifies as a disability under the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”).  Although the subject is somewhat comical at first blush, it is crucial that employers and employees know that the protections afforded employees are broader than ever.  This was not always so; especially for shy bladder syndrome.

Last year, the United States District Court for the Western District of Virginia granted summary judgment (i.e., ending the case) for the employer in Linkous v. CraftMaster Mfg., Inc.,[1] a shy bladder disability discrimination case.  There, the plaintiff was terminated after he failed two drug tests.  The first test appeared to the testing company to have been suspiciously altered.  Plaintiff was asked to submit to a second test, in which he would be observed.  Plaintiff then failed to provide an observed urine sample, and was thereafter terminated.  Plaintiff alleged that he was unable to urinate because he suffered from paruresis, thus preventing him from urinating if someone was watching.  The Court held that Plaintiff was not disabled under the version of the Americans with Disabilities Act (“ADA”) prior to its 2008 amendments because the Plaintiff failed to establish that his impairment substantially limited his ability to urinate at work or in the community.  In addition, the impairment appeared to be “sporadic,” which by definition cannot qualify as a substantial limitation under the ADA.

Now under the more expansive ADAAA, however, even some temporary ailments or those having a small effect on a person’s daily life are valid grounds for claiming employment discrimination. On this topic, the Equal Employment Opportunity Commission (“EEOC”) recently issued an opinion letter commenting that shy bladder syndrome can form the basis for an ADA claim.  In the letter, the EEOC says that under the ADAAA and its implementing regulations Paruresis now qualifies as a disability by including bladder and brain functions as major life activities, by lowering the standard for establishing that an impairment “substantially limits” a major life activity, and by focusing the determination of whether an individual is “regarded as” having a disability on how the individual has been treated because of an impairment, instead of on what the employer may have believed about impairment.

What does this mean going forward?

The Definition of Disability Has Not Changed

Now, as always, the ADAAA defines a disability as 1) a physical or mental impairment that substantially limits one or more major life activities; or 2) a record of a physical or mental impairment that substantially limited a major life activity; or 3) when a covered entity takes an action prohibited by the ADAAA because of an actual or perceived impairment that is not both transitory and minor.[2]

Major Life Activities Now Include Major Bodily Functions

Under the ADAAA and the EEOC’s regulations, an individual with paruresis, for example, has a disability under the first or second definition if his or her condition substantially limits one or more major life activities.[3]  As a result of the expansion of coverage provided by the ADAAA, major life activities include major bodily functions, such as bladder and brain functions, and functions of the neurological and genitourinary systems.[4]

“Substantially Limits” is No Longer as Demanding a Standard

Both the statute and the amended regulations explicitly state that “substantially limits” shall be construed broadly in favor of expansive coverage.[5]  Thus, the term now requires a lower degree of limitation than ever before – indeed, an impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.”[6]

Moreover, whether an impairment substantially limits a major life activity must now be made without regard to the ameliorative effects of mitigating measures.[7]  So, an individual’s paruresis substantially limits a major life activity if it would do so in the absence of treatment, including cognitive-behavioral therapy and/or medication.

The statute and regulations also state that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.[8]  Therefore, whether an individual’s shy bladder substantially limits a major life activity is based on the limitations imposed by the condition when its symptoms are present.

It is Easier for Individuals to Establish Coverage Under the “Regarded As” Definition of “Disability”

Under the ADAAA and the EEOC’s regulations, an employer “regards” an individual as having a disability if it takes an action prohibited by the ADA based on an individual’s impairment, or on an impairment that the covered entity believes the individual has, unless the impairment is both transitory and minor.[9]  Under the ADAAA, the focus for establishing coverage is on how a person has been treated because of an impairment, rather than on what an employer may have believed about the nature of the impairment.[10]  Paruresis is not a transitory impairment, so if an employer takes an adverse action against an individual because of paruresis, whether the condition is real or perceived, the individual probably will be “regarded as” having a disability.

At bottom, these are huge changes for employers and employees.  With change comes uncertainty.  It is imperative that both employers and employees understand that because the law is evolving they should seek legal advice if they are unsure about where they stand in relation to the ADAAA.

[1] 2012 WL 2905598 (W.D. Va. July 16, 2012)

[2] 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(1)

[3] 42 U.S.C. § 12102(1)(A), (B); 29 C.F.R. § 1630.2(g)(1)(i), (ii).

[4] 42 U.S.C. § 12102(2)(B); 29 C.F.R. § 1630.2(i)(1)(ii).

[5] 42 U.S.C. § 12102(4)(A); 29 C.F.R. § 1630.2(j)(1)(i).

[6] ADA Amendments Act of 2008, Pub. L. No. 110-325, § 2(b)(4), (6), 122 Stat. 3553 (2008); 29 C.F.R. § 1630.2(j)(1)(ii), (iv)–(v).

[7] 42 U.S.C. § 12102(4)(E); 29 C.F.R. § 1630.2(j)(1)(vi).

[8] 42 U.S.C. § 12102(4)(D); 29 C.F.R. § 1630.2(j)(1)(vii).

[9] 42 U.S.C. § 12102(3); 29 C.F.R. § 1630.2(l).

[10] 29 C.F.R. § 1630.2(j)(1)(iii).

Stuck down a local ordinance that regulated the packing, sale, and distribution of cigars. Altadis U.S.A., Inc. v. Prince George’s County (Md. 2013)

Upheld verdict against a mortgage broker whose agent perpetrated a fraudulent foreclosure rescue scam. Fidelity First Home Mortgage Co. v. Williams (Md. Ct. Spec. App. 2012)