Capitol Report

Capitol Report

September 18, 2017

Governor Signs Uniform Fiduciary Access to Digital Assets Act

The Uniform Fiduciary Access to Digital Assets Act was signed into law, making it easier for a fiduciary to access and manage a person’s digital property and electronic communications. The New Jersey State Bar Association supported the amended bill and worked closely with legislators and stakeholders on amendments to ease access to an incapacitated or deceased persons assets. The bill was sponsored by Assemblyman Louis Greenwald and Senator Patrick Diegnan.

The bill becomes effective on Dec. 12 and involves four types of fiduciaries – executors or administrators of deceased persons’ estates; court-appointed guardians of incapacitated persons; agents appointed under powers of attorney; and trustees. While the bill allows fiduciaries to manage digital property, it restricts access to electronic communications unless the original user consented in a will, trust, power of attorney, or other record.

The bill underwent major changes from last session when the uniform commission revised the uniform act. The revision came as a result of compromise among parties including AARP, National Academy of Elder Law Attorneys, Facebook, Google and The Center for Democracy and Technology. The aim of the legislation is to update state fiduciary law to incorporate digital assets such as photographs, documents, social media accounts, websites and similar property as part of the assets a fiduciary would have legal authority to access.

Members of NJSBA’s Real Property Trust and Estate Law Section participated in a number of discussions with the sponsors to modify the law to conform to New Jersey’s court system and current law as well as provided testimony.

Amicus Update: NJSBA To Weigh In On Professional Liability In Closings And Substantial Compliance In Land Use Cases

Bianchi v. Ladjen

The NJSBA accepted an invitation to weigh in at the Appellate Division on whether the obligations asserted by the plaintiff and his experts should be recognized as a question for the court to decide and absent reference to any authority or supporting materials establishing a duty, the expert’s opinion is a net opinion and should be recognized as such and barred.

In this residential real estate closing case, an escrow agreement drafted by a title company’s settlement agent was executed by the parties on the date of the closing, pending the anticipated clearance of the buyer’s certified checks for the purchase amount. Between the time the escrow agreement was executed and the funds cleared, the pipes had frozen causing water damage in the home. No homeowner’s insurance was purchased to cover the premises during the escrow period and a lawsuit was brought against the attorney, title company and seller alleging, among other things, negligence.

In granting summary judgment to the defendants, the trial court ruled that the plaintiff’s expert reports from an attorney with experience in residential real estate transactions and a licensed title producer were inadmissible net opinions. The experts alleged that the attorney and title company both owed a duty to the buyer and breached their respective duties and standards of care. The trial court noted that the law does not recognize the obligations asserted by the experts and that the sellers were not liable to the buyer under the terms of the contract or applicable law.

In this appeal, the appellate court is being asked to determine:

-       Whether the particular duties and standards of care asserted by the plaintiff and his experts pose questions of law for the court, or issues to be resolved the jury supported by appropriate expert testimony, or some combination thereof;

-       Whether the specific obligations asserted by the plaintiff and his experts should be recognized; and

-       whether the trial court erred in barring these experts and in granting summary judgment.

Dunbar Homes v. Township of Franklin

The association will seek to participate in a Supreme Court matter addressing the question of what constitutes a sufficient submission to a municipal land use body so that an applicant receives the zoning protection afforded by the “time of application” rule. The matter questions the purpose and intent behind the rule and what substantial compliance with a municipality’s regulations means to trigger the rule.

The Appellate Division ruled that an application must include the “application form and all accompanying documents required by ordinance for approval” for the time of application rule to apply, ruling against Dunbar Homes. In this appeal, Dunbar Homes seeks to answer the question of whether “a substantial, bona-fide application which does not constitute a sham, and one which gives the township sufficient notice of the application and an understanding of the development being proposed by the applicant” is sufficient to trigger the rule and prevent the township from changing an ordinance to prevent the development.

Dunbar Homes involved an application to build 55 additional apartments on an existing garden apartment complex and submitted an application in compliance with the ordinance at the time, which required it to seek a conditional use variance because the size of the property was less than the minimum 10 acres required for garden apartments as a conditional use in that zone. The day before the township passed an ordinance deleting garden apartment developments from permitted conditional uses in their zone, Dunbar Homes filed a submission seeking site plan approval for its development. Its submission omitted three items necessary for completeness. At the public hearing, the township argued that because the application was not “complete” at the time of application, the time of application statute did not apply.

The NJSBA will seek to participate to help clarify for practitioners what is required of property owners or developers to benefit from the protections of the time of application rule.  

Attorney Volunteers Sought For Military Legal Assistance Program

The New Jersey State Bar Association’s Military Legal Assistance Program provides free legal advice to veterans who encounter legal issues before their deployment or upon their return home.  Members of the military who have served in active duty or in the reserve units can receive assistance with family law, debtor-creditor issues and employment law matters.  Any attorney who annually volunteers 25 or more hours of pro bono service can earn a Madden exemption.  To find out more please visit our website njsba.com or e-mail mlap@njsba.com

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. 


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