Author name: jsinger

Doctrine of implied reciprocal negative servitudes only applies within the area intended to be covered by the general plan of uniform development

/ Real Estate Transactions, Servitudes

In Walters v. Colford, 900 N.W.2d 183 (Neb. 2017), a developer sold 14 lots with identical covenants restricting the property to one single-family two-story house and garage. The developer then solder a five-acre adjacent parcel without the covenants. The Nebraska Supreme Court held that the five-acre parcel was not part of the original common scheme and was not impliedly limited by the covenants. There was no basis for putting the future owners of that neighboring parcel on notice that they were part of a common scheme. Developers can avoid litigation about this issue by filing a declaration with a map that explicitly identifies the properties intended to be mutually restricted.

Courts expand “sex” discrimination laws to include prohibitions on sexual orientation and gender identity discrimination

/ Antidiscrimination Law, Sexual Orientation

Two recent Circuit Court cases create a conflict among the Circuits on the question of whether sexual orientation or gender identity discrimination is a form of “sex discrimination.” While the 11th Circuit and most other Circuits holds that it is not (see Evans v. Georgia Regional Hospital, 850 F>3d 1248 (11th Cir. 2017)), the Second and Sixth Circuits have issued rulings to the contrary. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018); Zarda v. Altitude Express, Inc, 883 F.3d 100 (2d Cir. 2018). Both courts agree with the 7th Circuit’s holding in Hively v. Ivy Tech Cmty. College of Indiana, 853 F.3d 339 (7th Cir. 2017) (Title VII prohibits discrimination on the basis of sexual orientation). Zarda holds that discrimination in employment on the basis of sexual orientation is both per se sex discrimination and a form of gender stereotyping. It is sex discrimination because the employer would not have engaged …

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Legal questions about landlord liability when one tenant harasses another

/ Antidiscrimination Law, Consumer Protection, Leaseholds, Nuisance, Real Estate Transactions

Is a landlord liable for breach of the covenant of quiet enjoyment if one tenant harasses another and the landlord does not intervene in some way, either by trying to resolve the dispute or by evicting the harassing tenant? To answer this question we must distinguish two types of legal claims. In the first type of claim, the victim of the harassment claims “constructive eviction” and asks to be relieved of her rental obligations by moving out before the end of the term. In the second type of claim, the tenant sues the landlord for monetary damages for failing to protect her from the other tenant’s actions when the landlord had the legal power to evict the harassing tenant for causing a nuisance or otherwise violating the lease terms by disturbing the quiet enjoyment of the neighbor. Traditionally, the landlord has been held not to be responsible for actions of …

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Supreme Court will review Williamson County decision requiring exhaustion of state remedies before bringing a takings claim in federal court

/ Takings

The Supreme Court has taken certiorari in a case that will decide whether to affirm or overrule the holding of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), which held that a property owner must exhaust state remedies before bringing a takings claim in federal court. Because proceedings in state court can be appealed to the Supreme Court, that rule means that the only way to get federal court review of a state takings claim is by getting the Court to accept review on a state supreme court decision, thereby precluding federal input into most takings claims against the states. The vehicle for reviewing Williamson County isKnick v. Township of Scott, 862 F.3d 310 (3d Cir. 2017), which involved a local law that allowed public officials to enter private property to determine whether a cemetery exists and that required all cemeteries to be open to …

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New Orleans owners prevail on a takings claim against the US Army Corps of Engineers for taking their property without just compensation by the negligent design of a navigational channel

/ Takings

This is an older case now but worthy of being noted. The U.S. Court of Federal Claims held that the U.S. Army Corps of Engineers effected a taking of property without just compensation when it designed and maintained a navigational channel known as the Mississippi River Gulf Outlet (MRGO) in a manner that significantly increased storm surge and flooding on owners’ properties during Hurricane Katrina. St Bernard Parish Gov’t v. United States, 121 Fed Cl 687 (2015).

Courts debate whether short term rentals (like Airnbnb) violate restrictive covenants limiting property to “residential uses”

/ Condominiums and Homeowners Associations, Real Estate Transactions, Servitudes

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 compatible with “residential use” and not a violation of such restrictive covenants at all. Wilkinson v. Chiwawa Communities Ass’n, 327 P.3d 614 (Wash. 2014); Santa Monica Beach Property Owners Ass’n v. Acord, 219 So.3d 111 (Fla. Dist. Ct. App. 2017)

An easement granted by a tenant ends when the tenancy terminates

/ Easements, Leaseholds

In Bedard v. City of Boise City, 403 P.3d 632 (Idaho 2017), the court recognized that a tenant who is empowered to grant an easement of access to property has no power to make that easement last beyond the term of the tenant’s rights in the property. Once the tenancy terminates, so does the easement. The tenant has no possessory rights once the tenancy terminates and you can only convey what you own.

Hawaii Supreme Court recognizes property right to clean air

/ Due Process, Environmental Law, Nuisance

The Supreme Court of Hawaii ruled in In re Maui Elec. Co., 2017 Haw. LEXIS 284 (2017) (for majority opinion click here; for dissenting opinion click here) that the state constitution confers a property right to a clean and healty environment sufficient and that the Sierra Club has standing to bring a lawsuit challenging the granting of a power plant permit to a coal-fired plant because its emissions will contribute to air pollution and arguably violated standards contained in the federal Clean Air Act. Because the claim is based on state law and heard in state court, federal court prudential and constitutional limitiations in standing, such as led to similar claims being thrown out of federal court in cases like Kivalina, does not apply to the state court proceedings. The Hawaii Constitution guarantees each person “the right to a clean and healthful environment, as defined by laws relating to environmental quality.” Haw. …

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Oregon Appeals Court affirms application of state public accommodations law to cake shop that refused to sell a wedding cake to a same-sex couple

/ Antidiscrimination Law, Consumer Protection, Sexual Orientation, Trespass

In Klein v. Or. Bureau of Labor & Indus., 2017 Ore.App. LEXIS 1598 (2017), the Court of Appeals of Oregon affirmed an administrative finding that Sweetcakes by Melissa violated the state public accommodations law when it refused to sell a wedding cake to a same-sex couple. The case is similar to the Masterpiece Cakeshop case currently being considered by the US Supreme Court because the cake shop based its claim on the first amendment’s protection of free speech (as well as a claim of religious freedom).  The owner gave religious reasons for denying service, quoting Leviticus and calling the customers “an abomination.” The court rejected the owner’s argument that the refusal to serve was “on account of” the owner’s religious convictions rather than on account of sexual orientation. It also rejected the argument that the refusal to serve was based on the “conduct” of getting married rather than the “status” of sexual …

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