After years of conflicting case law, the New York legislature has formally codified the obligation of landlords to mitigate damages when a tenant breaches lease obligations by abandoning the premises. 2019 N.Y. Laws 36, §4, codified at N.Y. Real Prop. Law§227-e.
New York finally imposes a duty to mitigate damages on residential landlords Read More »
Texas law now provides that a lease terminates when a tenant dies, if the tenant’s estate gives notice to the landlord of the death and removes the deceased tenant’s belongings within 30 days. 2019 Tex. H.B. 69, codified at Tex. Prop. Code §92.0162.
Texas statute terminates tenancy on death of tenant Read More »
The Court of Federal Claims has held the United States responsible for a regulatory taking because it created reservoirs and dams that it knew, or should have known, would overflow onto neighboring property and did nothing to stop that from happening. In re Upstream Addicks and Barker (Texas) Flood-Control Reservoirs, 2019 WL 6873696 (Fed. Cl. 2019). The case is significant because the government is not normally liable for failing to act. But as with any private tort, an omission can be a tortious act if someone has a duty to act or acts to create a situation that is inherently dangerous. In this case, plaintiff property owners claimed that the project design was defective because the Army Corps of Engineers knew that flooding was possible and that the surrounding government-owned land was insufficient to contain those waters so that neighboring property would likely be flooded in a major storm. The court
In Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019), the Eighth Circuit held that Minnesota could not enforce its public accommodations law against a company that refused to provide video services for same-sex weddings. The process of producing a video, the court said, constitutes “speech” and would be posted on the company’s website. The company sought to produce wedding videos of opposite-sex couples to “affect public attitudes and behavior” by “depict[ing] marriage as a divinely ordained covenant” that exists “between a man and a woman.” To forced them to produce videos for same-sex couples constitutes compelled speech that violates the Constitution’s protection for freedom of speech. The court emphasized the creative work that would go into editing; the company was not simply videotaping the wedding but retained “ultimate editorial judgment and control.” The court accepted the company’s assertion that if it provided its services for same-sex couples, this would “compel
In a 4-3 decision, the Arizona Supreme Court has interpreted its constitution, Ariz. Const. art. 2, §6, and its Free Exercise of Religion Act, Ariz. Rev. Stat. § 41-1493.01, to give a public accommodation the right to refuse service to same-sex couples who seek custom wedding invitations. Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019). Arizona has no state statute that prohibits discrimination on the basis of sexual orientation in public accommodations, but several cities, like Phoenix, have such local laws. This case involved a public accommodation that refused to produce a custom-designed wedding invitation for a same-sex couple. While Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S.Ct. 1719 (2018) had suggested that public accommodation laws could be enforced despite religious objections by the public accommodation owner, although it did not reach the free speech issue in that case and decided the religious liberty claim on
Owners built a retaining wall and deck that completely excluded the neighbor from use of the strip of land, thereby extinguishing the easement by prescription since these acts “render[ed] use of [the] easement practically impossible” for the statutory period. Giannelli Mgmt. & Dev. Corp. v. MPA Granada Highlands, LLC, 21 LCR 211, 216, 2019 Mass. LCR LEXIS 82, 2019 WL 1995535 (Mass. Land Ct. 2019). The court also found the easement was also extinguished by abandonment because the conduct of the easement owner showed an “intent to abandon the easement by acts inconsistent with the continued existence of the easement.” 21 LCR at 216. “Nonuse of the easement, standing alone, is not sufficient to constitute an abandonment by the owner of the dominant estate.” However, an “extended period of nonuse is a factor to consider in determining whether an easement has been abandoned,” especially when combined with “acquiescence to the use
Abandonment of an easement shown when fence closes access to it Read More »
Owner of an easement of passage that also uses the land without permission to park a car, use the area as a yard and maintain the lawn exceeds the scope of the easement and if done for the statutory period can obtain an easement by prescription for the longstanding uses. Savoie v. Zaniboni, 27 LCR 165, 2019 Mass. LCR LEXIS 58, 2019 WL 1511101 (Mass. Land Ct. 2019). The court applies the traditional presumption that uses of another’s land are nonpermissive unless evidence of permission is present.
No easement by necessity exists that would allow a condo owner to pass through another condo to reach a fire escape. Nor was there an express easement even though the condo documents gave the unit owner the right to use the fire escape. Chamberlain v. Badaoui, 95 Mass App. Ct. 670, 2019 Mass. App. LEXIS 93, 2019 WL 3334700 (Mass. App. Ct. 2019). No express right to go through the neighboring unit to get to the fire escape was created and the court refused to create one by implication. Instead, the plans showed a second exit to the interior stairway.
No easement by necessity to access fire escape Read More »
The Eleventh Circuit has held a commercial landlord liable for its tenant’s sales of counterfeit sunglasses when it knew of those sales and failed to stop them. Luxottica Group, S.p.A. v. Airport Mini Mall LLC, 2019 U.S. App. LEXIS 23555 (11th Cir. 2019). The claim was for contributory trademark infringement under the Lanham Act, 15 U.S.C. §1114.
Mall owners liable for commercial tenant’s sales of counterfeit sunglasses Read More »
In a 2 to 1 vote, the Eight Circuit has held that the First Amendment prohibits a state from enforcing its public accommodations law if it requires videographers to create custom videotapes of same-sex weddings even though they provide this service to opposite-sex weddings. Telescope Media Group v. Lucero, 2019 U.S. App. LEXIS 25320 (8th Cir. 2019). Because the videos will be edited and posted on the videographer’s website, the majority accepted the defendant’s argument that they would convey a message of support for same-sex marriage contrary to the views of the regulated entity. Judges David Stras and Bobby Shepherd found this to be “compelled speech” that violates the business’s constitutionally-protected right to freedom of speech. Dissenting judge Jane Kelly found no compelled speech, just a statutory duty to provide the same services to both same-sex and opposite sex couples.
