Author name: jsinger

Religious exemption to public accommodation laws rejected by Supreme Court while those laws cannot be administered in a way that demonstrates hostility to religion or that unfairly discriminates among religious beliefs

/ Antidiscrimination Law, Consumer Protection, Free Speech, Legal Theory, Religious Freedom, Sexual Orientation

This blog entry has a long title because the Supreme Court’s ruling in Masterpiece Cakeshop, Ltd., v. Colo. Civil Rights Comm’n, 2018 U.S. LEXIS 3386, 2018 WL 2465172 (U.S. 2018) is complicated and cannot be summarized quickly. While the baker won the case (the Supreme Court reversed the state court order to him to pay civil rights damages to the plaintiff couple for refusing to sell them a “wedding cake”), he won it on such narrow grounds that the decision is likely to wind up supporting the power to states to enforce civil rights law without regard to the religious objections of business owners. The Supreme Court ruled in favor of the baker on narrow grounds in a 7-2 decision with four judges concurring. The two dissenting judges were Ginsburg and Sotomayor. Three concurring opinions were written by Kagan (joined by Breyer) and Gorsuch (joined by Alito) and Thomas (joined by Gorsuch). …

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Can an owner or inhabitant of real property give police the right to search property when a co-owner or coinhabitant objects?

/ Concurrent or Common Ownership, Estates and Future Interests, Fourth Amendment, Leaseholds, Marital Property, Trespass

The Appeals Court of Massachusetts held that the police could search a closed suitcase in a common closet of a bedroom when given permission to do so by the defendant’s coinhabitant. Commonwealth v. Hernandez,93 Mass. App. Ct. 172, 2018 Mass. App. LEXIS 48 (Mass. App. Ct. 2018). This ruling was based on traditional rules of property law that give tenants in common rights of access to the property they both own. The court noted that any coinhabitant had the right to consent to a search of her home, her bedroom, and her closet because these were areas where both inhabitants shared joint access or control. The Supreme Court reached the opposite conclusion in the case of Georgia v. Randolph,547 U.S. 103 (2006) when it held that the police could not enter property owned by a married couple when one (but not the other) objected to entry. The Massachusetts case is consistent with …

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Landlord’s failure to comply with security deposit regulations may be defense to eviction

/ Consumer Protection, Leaseholds

A Massachusetts court, in the case of Duff v. Pouliot,2018 Mass. App. Div. 42, 2018 Mass. App. Div. LEXIS 10 (Mass. Dist. Ct. App. Div. 2018), has reaffirmed and applied a state supreme court precedent, Meikle v. Nurse,49 N.E.3d 210 (Mass. 2016), holding that a landlord’s violation of the state security deposit statute may constitute a defense to a claim for possession and thus protect the tenant from eviction.

Courts may consider extrinsic evidence to interpret ambiguous easements

/ Easements, Servitudes

A Massachusetts appellate court had the difficult tasking of deciding whether a view easement prohibited all structures or only structures over eight feel high. MacLean v. Conservation Comm’n of Nantucket,(Mass. App. Ct. 2018). The easement language created a “view easement which prohibits any and all structures and/or vegetation with a height greater than eight (8’) feet from existing grade upon and over said lot.” The court held that ” the absence of a comma after the word ‘structures’ combined with the use of the term ‘and/or’ makes it unclear whether the eight-foot height restriction applies only to vegetation or to structures as well.” Id.at 3. That ambiguity made the meaning of the language a question of fact to be determined by the trial court on remand.

Quitclaim deed does not negate good faith for purpose of adverse possession if the occupying parties did not actually know they were on land owned by another

/ Adverse Possession, Title Issues

Georgia is one of the few states that requires “good faith” in order to acquire property by adverse possession. That means that one cannot acquire property by adverse possession if one is knowingly occupying property of another. In McBee v. Aspire at Midtown Apts., L.P. 807 S.E.2d 455 (Ga. 2017), the question arose whether an owner was precluded from asserting good faith when they signed a deed that defined the disputed parcel as belonging to a neighbor. The court held that the occupying parties was doing so in good faith despite the deed they did not know where the actual border was and did not actually know that they were occupying property belonging to another.

Seizure of abandoned real property by municipality is not an unconstitutional taking of property

/ Nuisance, Takings

The Iowa Supreme Court held that the Constitution does not require just compensation when it seizes abandoned property pursuant to a statute giving the city title to such property. City of Eagle Grove v. Cahalan Investments, LLC, 904 N.W.2d 552 (Iowa 2017). Such property is deemed a nuisance and no owner owns the right to commit a nuisance. The court explained that the state has the “power to condition the permanent retention of…property rights on the performance of reasonable conditions that indicate a present intention to retain the interests.” In this case, by “allowing the properties to persist in a condition unfit for human habitation, allowing the premises to remain vacant, and failing to make timely and reasonable efforts to remedy the public nuisances created by the properties after notification of the problems,” the owner failed to comply with reasonable conditions established by law to retain his ownership interest. Because he did …

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City has a constitutional due process obligation to notify an owner that the owner’s property has been adjudicated to be blighted and subject to condemnation

/ Due Process, Nuisance, Takings

Colorado statutes create a procedure for designating property as blighted and subject to condemnation and transfer either to public use or transfer to another owner. While the statute required notice when the city begins studying whether the property is blighted and when a public hearing is held, it did not require notice of a decision that the property is in fact blighted. The Tenth Circuit found this to violate the due process clause because the statute gives property owners a right to judicial review of the blight determination but without notice of the blight determination owners have no reasonable opportunity to seek such judicial review. M.A.K. Investment Group, LLC v. City of Glendale,889 F.3d 1173 (10th Cir. 2018).

While real property held as tenancy by the entirety cannot be conveyed absent consent of both spouses, funds held in a bank account can be withdrawn by either spouse and, upon withdrawal, cease to be entireties property

/ Concurrent or Common Ownership, Estates and Future Interests, Marital Property, Personal Property

The Supreme Court of Tennessee overruled prior cases and adopted the Arkansas approach that allows spouses that own bank account as tenants by the entirety are free to withdraw funds unilaterally (without consent of their co-owner) and that moneys so withdraw become the individual property of the spouse that withdrew the funds. This contrasts with real property which neither spouse may convey without the consent of the other. In re Estate of Fletcher, 538 S.W.3d 444 (Tenn. 2017). It should be noted as well that Tennessee presumes that a conveyance to a married couple is held as a tenancy by the entirety unless the language provides otherwise.

Landlord does not commit disability discrimination when refusing to allow a tenant to keep an aggressive dog

/ Antidiscrimination Law, Fair Housing Act, Leaseholds

The Fair Housing Act requires landlords to avoid discrimination because of disability and to reasonably accommodate the needs of tenants by changing policies or practices to enable access to housing by persons with disabilities. However, accommodation is not required if it will pose a “direct threat” to the health or safety of others. This means that a landlord with a “no pets” policy must allow a tenant to keep an assistance animal unless doing so would impose an undue financial burden on the landlord or would fundamentally alter the nature of the housing services. In this case, the court found that the tenant was not entitled to a reasonable accommodation when the dog exhibited aggressive tendencies, that some residents stayed inside because they were afraid of the dog, and that the tenant might not be able to control the dog. Gill Terrace Retirement Apts., Inc. v. Johnson,177 A.3d 1087 (Vt. 2017).

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