In Howell v. Howell, 197 L. Ed. 2d 781 (2017), the Supreme Court interpreted and applied a federal statute that allows veterans’ retirement pay to be distributed on divorce as community property but does not allow distribution of disability benefits. 10 U.S.C. §1408(c)(1), §1408(a)(4)(B).
The Fair Debt Collection Practices Act, 15 U.S.C. §§1692e, 1692f, probibits debt collectors from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt. §1692e, as well as prohibiting any “unfair or unconscionable menas to collect or attempt to collect any debt,” §1692f. In Midland Funding, LLC v. Johnson, 197 L.Ed.2d 790 (2017), the Supreme Court, in an opinion by Justice Breyer, held that it was not unfair, deceptive, misleading, or unconscionable to make a claim in a bankruptcy proceeding based on a debt when the statute of limitations has run on the claim. The majority argued that the Bankruptcy Code allowed presentation of any “claim” and did not qualify that by saying “enforceable claim.” The Court noted that such a claim might be unfair in an ordinary civil suit but distinguished the bankruptcy process partly because it treats untimeliness as an affirmative defense and because …
Time-barred claim in bankruptcy held not to violate Fair Debt Collection Practices Act Read More »
In Bank of America Corp. v. City of Miami, 137 S.Ct. 1296, 197 L. Ed. 2d 678 (2017), the Supreme Court held that the City of Miami was an “aggrieved person” within the meaning of the Fair Housing Act, 42 U.S.C. §3602(i), and that it could sue the Bank of America (and other banks) for lost tax revenue and other municipal expenses resulting from alleged discriminatory grants of subprime mortgages to Miami residents that resulted in mass foreclosures and vacancies. While it violates the FHA to deny mortgages on the basis of race, it also violates the FHA to target a racial group for disfavored terms. The Court noted that it had been previously held that white persons have a claim under the FHA when they are deprived of the benefits of interracial associations when discriminatory rental practices kept African Americans out of a rental complex (citing Trafficante v. Metropolitan Life Ins. Co., 409 …
While the West Virginia Supreme Court adopted the traditional view that discrimination because of sexual orientation is not a form of sex discrimination, State v. Butler, 2017 W. Va. LEXIS 333 (W.Va. 2017) (hate crime against two gay men did not constitute criminal civil rights violation willfully injuring a person “because of such other person’s … sex”), the Seventh Circuit came to the opposite view in Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339 (7th Cir. 2017). See also Christiansen v. Omnicom Group, Inc., 2017 U.S. App. LEXIS 5278 (2d Cir. 2017) (although bound by precedent to hold the opposite, the court argued that sexual orientation discrimination is a form of sex discrimination); Smith v. Avanti, 2017 U.S. Dist. LEXIS 54777 (D.Colo. 2017) (refusal to rent to same-sex couple when one of the two was a transgender woman is a form of sex discrimination because it is based on gender stereotyping). The West Virginia Supreme …
Sexual orientation discrimination as a form of sex discrimination Read More »
While most courts have held that utility easements for electricity or telephone purposes can be used for cable television and other such purposes, see. e.g., Henley v. Continental Cablevision of St. Louis County, Inc., 692 S.W.2d 825 (Mo. Ct. App. 1985), a small number have gone the other way on the ground that easements are limited rights to use the land of another and that the use cannot exceed the scope of the original grant, see, e.g., Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 699 (Tex. 2002). The Eighth Circuit recently took the minority approach in Barfield v. Sho-Me Power Elec. Coop., 852 F.3d 795 (8th Cir. 2017), holding that a rural electric cooperative’s easements did not allow use of fiber-optic cable installed alongside electrical lines to serve the general public. The court emphasized that an easement is a “right to use land for particular purposes,” and interpreted a statute that …
Electricity easement held not to encompass use for fiber-optic cable Read More »
In Laubenstein v. Bode Tower, LLC, 392 P.3d 706, 2016 OK 118 (Okla. 2016), the Oklahoma Supreme Court refused to recognize a cell tower on neighboring property as a nuisance. The neighboring owner complained both about the tower’s appearance as well as the flashing warning lights installed for safety purposes which reflected in the water on his property. The court based its ruling partly on the traditional rule that “nuisance claims founded solely on aesthetic harm are not actionable.” ¶11. Prior nuisance cases in the state either involved physical injury to land or offensive activity rendering homes uninhabitable.
In a case reminiscent of the well-known case of State v. Shack, , 277 A.2d 369 (N.J. 1971), a federal judge applying Maryland state law has held that lawyers have a right to enter farmland to provide services to migrant farmworkers and that such an entry is not a trespass even if it is against the wishes of the land owner. Rivero v. Montgomery Cnty., 2017 U.S. Dist. LEXIS 67170 (D. Md. 2017). The court noted that the First Amendment “protects individuals’ right to impart information and opinions to citizens at their homes” (citing Schneider v. New Jersey, 308 U.S. 147, 152 (1939) and that state statutes provided that, while one cannot enter cultivated land without the permission of the owner, the law “does not…prevent a person who resides on cultivated land from receiving a person who seeks to provide a lawful service.” Md. Code, Crim. Law §6-406(b), (d)(2)(i).
In Owens v. Buccheri, 2016 Mass. LCR LEXIS 121 (Mass. Land Ct. 2016), the Massachusetts Land Court held that an adverse possessor can sue the original owner of land acquired by adverse possession for trespass when the original owner cuts down trees and excavates on the land. While in some sense an unremarkable holding, it is an object lesson not to engage in self-help on disputed land when the facts are such that one might have lost title to that land by adverse possession. The court also reaffirmed the rule that one can commit a trespass by mistake if entry on the land is voluntary. The court also interpreted a state law allowing for treble damages for removal of trees on someone else’s land to allow damages not only for the value of the timber that was wrongfully cut or the diminution in the fair market value of the land but …
Adverse possessor has trespass claim against original owner Read More »
The courts continue to divide over the question of whether it is fair to allow homeowners associations to impose retroactive restraints on leasing on existing owners who purchased with no notice of the restriction. While most states allow this, a few do not, and the Restatement (Third) of Property (Servitudes) §6.10(2), §6.10 cmt. g, takes the position that such major changes in property rights can only be accomplished prospectively unless there is a unanimous vote to alter those rights. The Idaho Supreme Court recently adopted what appears to be the majority approach, authorizing a homeowners association to retroactively prohibit existing owners from agreeing to short term rentals of less than six months. Adams v. Kimberley One Townhouse Owner’s Ass’n, 352 P.3d 492 (Idaho 2015). In contrast, the Supreme Court of Washington refused to allow retroactive restraints on short term rentals in Wilkinson v. Chiwawa Commties. Ass’n, 327 P.3d 614 (Wash. 2014), requiring unanimous approval for such …
Retroactive restraints on leasing in homeowners associations Read More »
The Massachusetts Land Court decided an interesting case interpreting a conveyance that reads like a right of first refusal but can be interpreted as a broader restraint on alienation giving discretion to a nonprofit entity to refuse absolutely to any transfer of the land. Gottlieb v. Girl Scouts of E. Mass., 2016 WL 3523859 (Mass. Land Ct. 2016). The conveyance stated that “before [charitable organization A] shall sell, transfer, or otherwise dispose of the [land, it] shall first offer said land to [charitable organization B] as an unencumbered gift, sale or otherwise to be used by [charitable organization B] for any charitable or civic purpose…” The court found that the clause was not a use restriction but a limit on transfer and thus a restraint on alienation. It also found that it was not a right of first refusal because it did not require purchasing the property at fair market value or matching a bona fide third party …
Distinguishing between a right of first refusal and a restraint on alienation Read More »
