Author name: jsinger

Covenants may not be enforced if neighbors have tolerated previous violations of those covenants

/ Condominiums and Homeowners Associations, Servitudes

The doctrines of waiver, estoppel, acquiescence, and abandonment may be triggered if owners benefited by a restrictive covenant failed to enforce violations of it in the past. Hood v. Straatmeyer, 18 N.W.3d 649, 2025 S.D. 12 (2005). The South Dakota Supreme Court held that restrictive covenants could not be enforced when the neighbors had tolerated widespread violations of that exact same covenant, and it would be impractical to require all properties to be brought into compliance with the covenant. In this case, both the plaintiff and many neighbors had violated setback requirements of 40 feet between the border and the structure, as well as a covenant prohibiting business activities on the property. Because violations of these covenants were “widespread, unchallenged violations of the restrictive covenant throughout the subdivision, some of which were perpetrated by the Plaintiffs,…the circuit court [correctly] determined that requiring [the Defendant] to conform their use of their …

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Seventh Circuit adopts a slayer rule for inheritance of ERISA benefits

/ Wills and Inheritance

common law preventing a son from inheriting pension benefit funds in a plan managed by ERISA (Employee Retirement Income Security Act of 1974) when he murdered his parent. Standard Ins. co. v. Guy, 115 F.4th 518 (6th Cir. 2024). The case seems to be replay of the famous opinion by the New York Court of Appeals in Riggs v. Palmer, 22 N.E. 188 (N.Y. 1889). The Riggs opinion has this famous quote: “But it never could have been [the lawmakers’] intention that a donee who murdered the testator to make the will operative should have any benefit under it. If such a case had been present to their minds, and it had been supposed necessary to make some provision of law to meet it, it cannot be doubted that they would have provided for it.” The Sixth Circuit viewed ERISA as “silent or ambiguous” on the question of whether a …

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Foreclosure presumptively invalid when foreclosure price is for 15% of fair market value

/ Mortgages

The Alabama Supreme Court has stopped the ejection of an owner by the mortgagee who bought the property at foreclosure because there was a serious question of whether the foreclosure was valid given the fact that the foreclosure price was only $1 more than the outstanding debt and was only 15% of the market value of the property. Martin v. Scarborough, 2024 Ala. LEXIS 195, 2024 WL 4863866 (Ala. 2024). The court cited Alabama precedents suggesting that a price less than one-third of fair market value is presumptively “grossly inadequate” and “shocks the conscience.”

Easement cannot be extended to newly acquired land

/ Easements, Servitudes

Applying a longstanding rule of law, the New Hampshire Supreme Court held that an easement owner cannot use an easement to access new lands acquired by the dominant estate owner that are contiguous to the lands benefited by the easement. Ryan v. Ryan, 2024 WL 4579312, 2024 N.H. LEXIS 233 (N.H. 2024). In the absence of language to the contrary an easement allows access to the lands to which the easement attaches at the time the easement is granted. New lands added to the dominant estate are not allowed to benefit from the easement under a rule that conclusively presumes that doing so would exceed the scope of the original easement. The court noted, “The purpose undergirding the rule is that the owner of the easement appurtenant may not materially increase the burden of the easement upon the servient estate or impose a new or additional burden.”

No landlord duty to inspect rental property periodically

/ Leaseholds

The North Carolina Supreme Court has held that the implied warranty of habitability does not obligate landlords to inspect premises periodically to find problems. Terry v. Pub. Serv. Co., 898 S.E.2d 648 (N.C. 2024). Rental property was inspected a couple of times when the neighbor and the tenant smelled gas, but nothing was found and the tenant did not notify the landlord. Subsequently, the tenant was severely injured by an explosion caused by a corroding gas pipe. While the trial court found no violation of state statutes regulating residential rental property, the appeals court reversed. But the Supreme Court reversed the appeals court and held that the landlord has no duty of repair under the statute unless the tenant notifies the landlord of the problem first. This seems in line with the law in most states which do not impose liability on landlords for personal injury due to conditions in …

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Fair Housing Act (FHA) protects homeowners from limits on their Christmas display if the reasons for those limits are based on the owners’ religion rather than the scope of their activities

/ Antidiscrimination Law, Condominiums and Homeowners Associations, Fair Housing Act, Religious Freedom, Servitudes

The Ninth Circuit has held that a homeowners association may not be able to enforce its rules limiting the scope of a Christmas display by owners in the common scheme if those limits are  motivated by opposition to the owner’s religion in violation of the Fair Housing Act, 42 U.S.C. §3617. Morris v. W. Hayden Estates First Addition Homeowners Ass’n, Inc., 104 F.4th 1128 (9th Cir. 2024). The owners (Jeremy and Kristy Morris)  had engaged in these activities at their prior home where they had strung up thousands of Christmas lights, sang Christmas carols, employed costumed characters playing Santa Claus and the Grinch, and hosted a live nativity scene with a live camel. The family also offered free hot chocolate to visitors which led to 200 families visiting their property the first day with 20 to 100 families visiting the rest of the week. When the owners put in an …

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More courts hold that the Americans with Disabilities Act (ADA) does not apply to websites, only physical stores

/ Antidiscrimination Law

Two separate cases by judges in the Southern District of New York have held that the Americans with Disabilities Act does not apply to websites since it only covers “places” of public accommodation and websites have no “place. Mejia v. High Brew Coffee Inc., 2024 WL 4350912 (S.D.N.Y. 2024); Sookol v. Fresh Clean Threads, 2024 WL 4499206 (S.D.N.Y. 2024). The Eleventh Circuit agrees. Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir. 2021), as do the Third, Sixth, and Ninth Circuits. Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010-11 (6th Cir. 1997); Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905 (9th Cir. 2019); Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266, 1276-77 (11th Cir.), opinion vacated for mootness, 21 F.4th 775 (11th Cir. 2021). The First Circuit, however, held that the phrase “public accommodation” “is not limited …

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Retroactive restriction on commercial use invalid against a lot that was expressly permitted to engage in such uses

/ Condominiums and Homeowners Associations, Servitudes

The Supreme Court of Virginia has held that a declaration that gives owners collective powers to “modify” or “change” covenants in the declaration did not give the owners the right to prevent commercial use by a lot owner that had been expressly permitted to engage in commercial uses under the original declaration. Westrick v. Dorcon Group, LLC, 901 S.E.2d, 468 (Va. 2024). While the court focused on dictionary definitions of the word “modify,” it also took the traditional (and now receding view) that covenants such be seen as encumbrances on property (rather than as valuable benefits) and thus should be interpreted narrowly to ensure the widest freedom to use land. It also noted that the power to create “exceptions,” or “modifications,” or to “vacate” the restrictions suggested a power to limit the restrictions, not a power to introduce new ones. There was no homeowner’s association created by the declaration, but …

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Massachusetts Supreme Judicial Court rules engagement rings to be conditional gifts

/ Gifts, Marital Property

Overruling its precedent from 1959, the high court in the Commonwealth of Massachusetts joins the modern approach by holding that engagement rings should be returned to the giver if the engagement falls through without regard to whose fault it is that the engagement was called off. Johnson v. Settino, 2024 WL 4714383 (Mass. 2024) (overruling DeCicco v. Barker, 159 N.E.2d 534 (Mass. 1959)). The ruling makes the issue consistent with the no fault divorce regime that eschews consideration of fault in dissolving marriages. The ring is considered a conditional gift that only becomes permanent when the engagement results in a marriage.

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