The Massachusetts Land Court held that an owner who housed, bred, and sold dogs on his property (and obtained a commercial license to do so up to 12 dogs) violated a restrictive covenant limiting the property to residential use. Clish v. Paradise, 2017 Mass. LCR LEXIS 5, 2017 WL 72055, 25 LCR 13 (Mass. Land Ct. 2017).
As it has in the past, the Supreme Court has refused to review a state court opinion that upheld a local ordinance that required housing developers to pay a fee to be used for the development of affordable housing. 616 Croft Ave. LLC v. City of W. Hollywood, 207 Cal. Rptr.3d 729 (Ct. App. 2016), cert. denied, 2017 WL 1064331 (Oct. 30, 2017). The lower court opinion relied on an earlier ruling by the California Supreme Court that also upheld such ordinances and found them not to be takings of property without just compensation. Cal. Bldg. Indus. Ass’n v. City of San Jose, 351 P.3d 974 (Cal. 2015). Cf., Common Sense Alliance v. Growth Mgmt. Hearings Bd., 2015 WL 4730204 (Wash. Ct. App. 2015) (general “legislative” regulations that apply to classes of property or development, rather than individualized permit conditions, are not subject to the Nollan/Dolan nexus requirements). These rulings have generally not applied the restrictive …
Supreme Court denies certiorari in inclusionary zoning case Read More »
The Massachusetts Land Court has held that a commercial option to purchase property may be exercised nine years after the right to exercise the option ripened (because of failure to fulfill a condition by a set date). Pinewood Road, Inc. v. Kuntz, 2017 WL 361172 (Mass. Land Ct. 2017). The court noted the traditional rule that an option to purchase real property “that does not supply a time limit for it exercise must be acted on within a reasonable period of time.” This modern rule softens the strict rule against perpetuities which traditionally invalidated options that had no time limit as executive interests that could vest too far into the future. Massachusetts adopted the Uniform Statutory Rule Against Perpetuities which requires an option to be exercised within 30 years, but since this option was created after the effective date of the statute, the option was valid and could be exercised.
The Massachusetts Land Court has reaffirmed and applied the traditional rule that an appurtenant easement cannot be used to access after-acquired property next to the dominant estate. Kent v. Roma III, Ltd., 2016 WL 6908191 (Mass. Land Ct. 2016). The court noted that the Restatement (Third) of Property (Servitudes) §4.11, cmt. b suggests that in exceptional cases, damages might be awarded rather than injunctive relief and use of the easement authorized upon payment of those damages, but no facts warranted an exception and a bright line rule was viewed as predictable and as a way to avoid lawsuits to determine whether use of the easement to access after-acquired land imposed a “burden” on the servient estate.
A Massachusetts court has reaffirmed the “Massachusetts rule” that “an individual whose property is damaged by an overhanging tree has no cause of action against a landowner of the property upon which the tree lies.” Shiel v. Rowell, 2017 WL 3616892 (Mass. App. Div. 2017), citing Ponte v. DaSilva, 446 N.E.2d 77 (Mass. 1983). The court noted the contrary “Hawaii rule” that does make a tree owner financially responsible if her own trees overhangs neighboring property and damages it.
The First Circuit Court of Appeals has resolved a longstanding and complicated dispute between two congregations over control of the real and personal property of the Touro Synagogue in Newport, Rhode Island. In an opinion by Judge John J. McConnell, Jr., the trial court had found that an implied or constructive trust existed by which a New York Congregation Shearith Israel (CSI) held title to the property for the benefit of the Newport Rhode Island Congregation Jeshuat Israel (CJI). Congregation Jeshuat Israel v. Congregation Shearith Israel, 186 F.Supp.3d 158 (D.R.I. 2016), rev’d, 2017 WL 3276805 (1st Cir. 2017). That opinion enforced Rhode Island property law and reviewed objective evidence of the parties’ relationship to find that the New York congregation held the property for the benefit of the Newport congregation. In an opinion by Justice Souter, the First Circuit reversed on the ground that the First Amendment requires courts to refrain from involvement in …
The Wyoming Supreme Court has held that out of court statements made by an alleged adverse possessor that he was using the property with permission of the prior owners can be admitted to rebut the presumption that the use was nonpermissive. Galiher v. Johnson, , 2017 WY 31, 391 P.3d 1011 (Wyo. 2017)
The Kansas Supreme Court has held that restrictive covenants are “property” rights within the meaning of the fourteenth amendment and cannot be violated by government without payment of just compensation. Creegan v. Kansas, 391 P.3d 37 (Kan. 2017).
When one occupies property belonging to a neighbor, most courts presume the occupation is adverse (meaning non-permissive), and this “possession” will ripen into ownership through adverse possession law after the statutory period runs out. Most states use the same presumption for prescriptive easements but a minority presume use is permissive rather than nonpermissive when limited use — rather than full occupation or “possession” — is at issue. In such cases, permissive use will be revocable and not ripen into a prescriptive easement. The Massachusetts Land Court applied the presumption that use if permissive in the absence of statements or actions that show that it is nonpermissive and found no prescriptive easement in the case of DiNino v. Newman, 2016 Mass. LCR LEXIS 179 (Mass. Land Ct. 2016). The court purported to apply the Massachusetts presumption that use is adverse (nonpermissive) and found that facts overcame that presumption. However, the only facts that …
in Penobscot Nation v. Mills, 2017 U.S. App. LEXIS 11704 (1st Cir. 2017), the First Circuit held (over a vigorous dissent by Judge Torruella), that the Maine Indian Claims Settlement Act, 25 U.S.C. §1722(i) and the Maine Implementing Act, Me. Rev. Stat. tit. 30, § 6203(8), confirmed ownership of islands to the Penobscot Nation but no rights in the surrounding waters and no rights to fish in those waters. The court focused on the wording of the state act defined the Penobscot lands to include “the islands in the Penobscot River” and that the word “in” plainly referred to the islands and not the water surrounding them. Because the court found the language to be clear and unambiguous, there was no reason to apply the Indian law canons of construction that require ambiguities to be resolved in favor of Indian nations and as those nations would have understood them. The court relied …
