Author name: jsinger

Real property can be partitioned based on equitable factors even if only party’s name is on the deed

/ Concurrent or Common Ownership, Marital Property, Title Issues

North Dakota law allows partition of real property when two parties intend to share ownership of the house, and they both contribute to its purchase and/or maintenance, even if the deed is in the name of only one of the parties. Berger v. Repnow, 2025 ND 25, 16 N.W.3d 452 (N.D. 2025) (applying N.D. Cent. Code §32-16-01. The court explained that North Dakota law affirms that “although legal ownership of property is strong evidence of an intention to not share property, legal ownership is not dispositive when the person who is not the legal owner has financially contributed to the acquisition of the property.” However, the court held that the trial court erred in granting title to the house to one of the parties rather than dividing it between them by “determin[ing] the parties’ respective ownership interests based on their contributions to [the] property and any other relevant factors, and …

Real property can be partitioned based on equitable factors even if only party’s name is on the deed Read More »

Esthetic regulation of property may be a taking when not connected to historic preservation

/ Historic Preservation Law, Takings

The Fifth Circuit Court of Appeals held that esthetic regulation of the appearance of property may constitute a regulatory taking under the Fourteenth Amendment. Money v. City of San Marcos, 2025 WL 429980 (5th Cir. 2025). The façade of the home in an historic district had  the initial (a “Z”) of a prior owner who was associated with the Ku Klux Klan. The current owners wished to remove the emblem and sought permission to do so from the city’s historic commission. When the commission denied their request, they sued, claiming a taking of their property without just compensation. The home is in an historic district but the home itself is not designated as an historic home. The historic district regulations prohibit altering any visible portion of the property without consent of the historic commission, which it refused to give in this case. The homeowners argued that the ordinance requirement that …

Esthetic regulation of property may be a taking when not connected to historic preservation Read More »

Joint tenancy not severed by tax lien before foreclosure

/ Concurrent or Common Ownership

States disagree about what acts are sufficient to sever a joint tenancy and end the right of survivorship. The Maine Supreme Judicial Court has held that a tax lien, by itself, does not sever a joint tenancy before foreclosure. Estate of Priest, 2025 ME 24, 331 A.3d 451 (Me. 2025). In this case the property owners paid the delinquent taxes before expiration of the 18 month redemption period, and that payment was confirmed by quitclaim deeds issued by the town. Because there was no severance, the surviving joint tenant became the sole owner of the property on the death of her co-owner husband.

Restraints on sale of tenancy in common interests are void even if intended to keep the property in the family

/ Concurrent or Common Ownership, Restraints on Alienation, Wills and Inheritance

A homeowner created a trust that would transfer title to her home to her three children at her death, but also provided that the children could not sell the property to anyone but their siblings and for an amount below fair market value. A state court in California held the restraint on alienation unreasonable and void both because it severely limited the class of potential buyers and denied the owners the fair market value of their interests. Godoy v. Linzer, 327 Cal. Rptr. 3d 323 (Ct. App. 2024). The court was applying a long-established California statute that provides that restraints on alienation are void when “repugnant to the interest created.” Ca. Civ. Code §711. That provision has been interpreted to allow restraints on alienation when reasonable, but the court found that there is a very strong presumption of invalidity of restraints on fee simple interests. Courts sometimes uphold restraints on …

Restraints on sale of tenancy in common interests are void even if intended to keep the property in the family Read More »

Impeding access to one’s land is a taking but changes in traffic patterns are not

/ Takings

The Indiana Supreme Court affirmed a well-established rule that, while it would a taking of property requiring compensation to block an owner’s established access to a public road, it is not a taking if a government entity alter roads or closes an intersection in ways that affect traffic patterns. That is so even if those changes in traffic patterns harm a business by reducing its customers. Indiana v. Franciscan Alliance, Inc., 245 N.E.3d 144 (Ind. 2024). The court reasoned that the owner has no property interest in traffic patterns while the owner does have an interest in using existing driveways and roads to get direct access the owner’s own land.

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 …

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

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 …

Seventh Circuit adopts a slayer rule for inheritance of ERISA benefits Read More »

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.”

Scroll to Top