Author name: jsinger

Short term rentals (such as Airbnb) held not to violate a covenant prohibiting “commercial use” contrary to rulings of some other courts

/ Leaseholds, Servitudes

Courts disagree about whether covenants prohibiting “commercial use” of real property apply to short term rentals like Airbnb. While some courts have said that such rentals do constitute commercial use, see, others have found the use not to be commercial but residential in nature. The Arkansas Supreme Court joined the courts that find Airbnb to be a residential rather than a commercial use of property. Vera Lee Revocable Trust v. O’Bryant, 537 S.W.3d 254 (Ark. 2018). Accord, Slaby v. Mountain River Estates Residential Ass’n, Inc.,100 So. 3d 569 (Ala. Ct. Civ. App. 2012). This is an ongoing debate among courts: Some courts hold that short term rentals (such as Airbnb rentals) violate covenants that restrict the property to “residential use,” finding short-terms rentals to be closer to hotel use and thus commercial in nature. Vonderhaar v. Lakeside Place Homeowners Ass’n, 2014 WL 3887913 (Ky. Ct. App. 2014). Other courts find short term rentals to be …

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New York City and San Francisco vote to guarantee lawyers for some or all tenants facing eviction

/ Consumer Protection, Due Process, Leaseholds, Real Estate Transactions

New York City was the first city to guarantee lawyers to most low-income tenants facing eviction. Ashley Dejean, New York Becomes First City to Guarantee Lawyers to Tenants Facing Eviction, Mother Jones, Aug. 11, 2017.. When fully in force, the law will provide legal services to tenatns facing eviction who make below 200 percent of the federal poverty line. The program will be phased in over a five-year period.  San Francisco voters passed Proposition F on June 5, 2018 that would require the city to establish, fund, and run a program to provide legal representation for all residential tenants in San Francisco facing eviction regardless of their income. Adam Brinklow, SF voters guarantee lawyers for evicted tenants: Proposition F passes with more than 55 percent of the vote, Curbed: San Francisco, Jun. 7, 2018.

No sex discrimination or violation of privacy rights when trans students use bathrooms corresponding to their gender identity

/ Antidiscrimination Law, Due Process, Gender Identity, Sexual Orientation

The Third Circuit entertained and rejected a claim by cisgender students (whose gender identity corresponds to the gender assigned at birth) that their constitutional rights to privacy and their statutory rights to be free from sex discrimination were violated when trans students were allowed to use bathrooms corresponding to their gender identity. Doe v. Boyertown Area School District,2018 U.S. App. LEXIS 16323 (3d Cir. 2018). The court found that cisgender students were not deprived of a right to privacy when they had to change clothes in view of transgender students because the presence of the transgender students in bathroom and locker rooms according with their gender identity furthered an important government interest in preventing sex discrimination. Further, the court found that it would constitute sex discrimination not to treat transgender students in accord with their gender identity so that allowing them to do so could not constitute sex discrimination against cisgender …

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Expectation of privacy voids government search of car in driveway without a warrant but not if parked in shared lot

/ Fourth Amendment, Trespass

The Supreme Court held that the Fourth Amendment precludes search of a car parked in the driveway to a home without a warrant in Collins v. Virginia,138 S. Ct. 1663 (U.S. 2018), while a number of other courts have held that there is no such expectation of privacy for cars parked in shared lots. United States v. Jones,2018 U.S. App. LEXIS 16409, 2018 WL 3028685 (2d Cir. 2018); State v. Dumstrey,2016 WI 3, 873 N.W.2d 502 (Wis. 2016).

Owners must continue to pay homeowners association fees to maintain private roads even after all other covenants terminate

/ Condominiums and Homeowners Associations, Consumer Protection, Easements, Real Estate Transactions, Servitudes

A Massachusetts court has held that owners in a homeowners association that have access to shared private roads must continue to pay fees to the association to maintain those roads even after all other covenants terminate. Meadowview Heights Homeowners Ass’n, Inc. v. Chosse, 2018 Mass. App. Div. 54, 2018 Mass. App. Div. LEXIS 14 (Mass. Dist. Ct. App. Div. 2018). The court found that the assessments were not covenants subject to a termination clause but were implied obligations to share in the burden of maintaining a common benefit in the private roads that arose as an equitable servitude and implied contract.

Court wrestles with the question of whether use of a pavement area without permission creates a prescriptive easement or adverse possession

/ Adverse Possession, Easements, Real Estate Transactions, Servitudes, Trespass

When an owner uses a driveway or pavement area owned by a neighbor, and does with openly and without permission for the statutory period, does the owner get a prescriptive easement to use the area for the specific purposes to which the property was devoted or does the owner acquire full title to the area by adverse possession? The problem arises because an owner who parks a car on a driveway that encroaches on neighboring land may be viewed as undertaking a limited use of the land (use for parking purposes) or may be viewed as acting as an owner with full control of the property being used. Often the question will turn on whether the use of the area was exclusive, i.e., whether the owner of record title was excluded from the property. If the record owner was excluded, adverse possession is likely to be awarded. If the parties …

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Another federal court rules that transgender discrimination is a form of sex discrimination

/ Antidiscrimination Law, Gender Identity, Sexual Orientation

Gavin Grimm is a man who was denied the right to use the men’s restrooms in a public school in Virginia because the school classified him as a woman based on his birth designation. U.S. District Court Judge Judge Arenda l. Wright Allen held that this constituted discrimination on the basis of sex in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §1681-1688, the federal law that prohibits sex discrimination in any educational institution receiving federal funds. Grimm v. Gloucester County School Board, 2018 U.S. Dist. LEXIS 88638 (D.Va. 2018). The court applied the gender stereotyping theory of Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989), and agreed with the First, Sixth, Ninth, and Eleventh Circuits that discrimination based on gender identity constitutes “sex” discrimination. It concluded that “”discrimination on the basis of transgender status constitutes gender stereotyping because ‘by definition, transgender persons do not conform to …

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Defeasible easements are enforceable if clearly created

/ Easements, Estates and Future Interests, Servitudes

In Majestic Oaks Homeowners Ass’n v. Majestic Oaks Farms, Inc., 530 S.2d 3 435 (Ky. 2017), covenants for a residential subdivision creates easements that were subject to abolition by a supermajority vote of the homeowners. The Kentucky Supreme Court saw no reason not to allow easements to be made defeasible and upheld the power of the association to end the easements.

Easement by necessity can be widened and its uses can be expanded

/ Easements, Servitudes

The Virginia Supreme Court held in Palmer v. R.A. Yancey Lumber Co., 803 S.E.2d 742 (Va. 2017) that an easement by necessity is not limited to uses existing at the time the easement was created by severance of the parcels creating a landlocked parcel with a need to traverse the servient estate to obtain access to the dominant property. An easement created in 1828 was used for road access and transportation of timber. More than a hundred years later, the Virginia Supreme Court not only allowed new methods of transportation to be used (tractor-trailers) but allowed the road to be widened to accommodate the new uses. Because the easement guarantees access to the dominant estate and the ability to use it effectively, the use of the easement can expand to accommodate the new uses to which the dominant estate is put. There is a limitation that the easement cannot be widened in …

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