The Utah Supreme Court joined others in adopting the modern view that servitudes (restrictive covenants) should be interpreted to effectuate the intent of the parties, rather than interpreting them strictly so as to maximize the rights of the owner of the burdened property, as the traditional rule held. Fort Pierce Ind. Park Phases II, III & IV Owners Ass’n v. Shakespeare, (Utah 2016).
A trespass is a non-privileged entry onto land possessed by another. Privilege can come from several sources including consent of the owner and public policy. In a case of first impression, the Supreme Court of Texas held that the plaintiff in a trespass case bears the burden of proving that entry by the non-owner was non-permissive. Rather than simply proving that the defendant entered the plaintiff’s land, the plaintiff must prove that the entry was a trespass and to do that the plaintiff must show the entry was not done with the consent of the plaintiff owner. Envtl. Processing Systems, L.C. v FPL Farming Ltd., 457 S.W.3d 414 (Tex. 2015).
The law of sex discrimination has long suffered under the problem of distinguishing between discrimination based on sex and discrimination based on sexual orientation. Twenty-two states and the District of Columbia, as well as over one hundred municipalities, have laws prohibiting discrimination in the housing market on the basis of sexual orientation. Those jurisdictions include California, Colorado, Connecticut, Delaware, the District of Columbia, Hawai‘i, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin. Congress has so far refused to pass a statute prohibiting sexual orientation discrimination in housing, employment, and public accommodations. Federal fair housing law does not facially prohibit sexual orientation discrimination but it does prohibit discrimination on the basis of sex. So far courts have not accepted the argument that sexual orientation discrimination is a form of sex discrimination. Christiansen v. Omnicom Group, Inc., 2016 …
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In Bac Home Loans Servicing, L.P. v. Savankham, 2016 Mass. LCR LEXIS 86 (Mass. Land Ct. 2016), a mother gave a bank a mortgage on her joint tenancy interest in property she shared with her two children. The children did not know about or participate in the transaction. Apparently, the bank thought it was getting a mortgage on the whole property rather than just the joint tenancy interest of one joint tenant and sought to reform the documents to reflect that understanding. However, because there was no proof that all parties understood the transaction this way, it was a unilateral mistake of the bank rather than a mutual mistake of all owners and the lender. The court refused to reform the documents to reflect the arrangement the bank wanted or thought it was getting. A word to the wise, I suppose. You really need to do a title search to make sure …
The Pennsylvania Supreme Court has reaffirmed and applied the doctrine of estoppel by deed in the case of Shedden v. Anadarko E. & P. Co., L.P, 136 A.3d 485 (Pa. 2016) and distinguished it from the doctrine of equitable estoppel. Equitable estoppel “recognizes that an informal promise implied by one’s words, deeds or representations which leads another to rely justifiably thereon to his own injury or detriment, may be enforced in equity” while “[i]n contrast, the doctrine of estoppel by deed precludes one who conveys an interest in land that he does not own, but subsequently acquires the title thereto, from denying the validity of the first conveyance.” In this case, an owner leased oil and gas rights to a 62-acre parcel while actually owning only 50% of them. When the owner later acquired the other 50% of the oil and gas rights, the doctrine of estoppel by deed folded those …
Massachusetts statutes regulate the enforceability of “covenants” by limiting the circumstances in which they can be enforced, defining when they can be enforced by damages only and not injunctive relief, and subjecting enforcement to a 6 year statute of limitations. Mass. Gen. Laws ch. 184 §23A, §30. In a recent application of those statutes, the Massachusetts Appeals Court ruled in BP Watertown Retail, LLC v. Home Depot U.S.A., Inc., 2016 WL 513955 (Mass. App. Ct. 2016), that these limitations do not apply to affirmative easements; rather they apply only to restrictive covenants. So when an owner of a store in a shopping center engaged in construction in a shared parking area, eliminating several parking spaces, its actions did not merely violate the restrictions on construction in the parking area but interfered with access to the parking area by other easement beneficiaries who had a right to use the parking lot without …
The Massachusetts Comprehensive Permit Statute, colloquially known as the Anti-Snob Zoning Act, Mass. Gen. Laws ch. 40B, §§20-23, enables developers to file a single comprehensive permit before the local zoning appeals board to construct affordable housing. Municipalities in which less than 10 percent of the housing stock is affordable face a heavy burden of proof to overcome the statutory preference for such housing. The statute delegates authority to a state agency, called the Housing Appeals Committee, that enables it to override local permit denials when necessary to allow affordable housing to be constructed. In Eisai, Inc. v. Housing Appeals Committee, 89 Mass. App. Ct. 604 (2016), the court affirmed the substantial deference owed to the state agency when it exercises its powers ordering a municipality to issue a comprehensive development permit for affordable housing. Local concerns that include protection of health or safety of occupants or residents of the municipality cannot override …
In a decision one might think was unnecessary today, the Maine Supreme Judicial Court ruled that the “children” who inherit under state intestacy statutes include adopted children. Fiduciary Trust Co. v. Wheeler, 132 A.3d 1178, 2016 ME 26 (Me. 2016). The issue was raised because an earlier court decision interpreting the decedent’s will had held that a separate clause leaving property to the decedent’s “issue” went to biological children (in this case grandchildren) only. This clause did not affect another clause, at issue here, that referred to the state’s intestacy statute to govern distribution of property upon termination of the trust.
The Nebraska Supreme Court held that operation of a hidden sprinkler system and lawn maintenance were not sufficiently visible or “notorious” to put the record owner on notice of the adverse actions and thus could not ripen into adverse possession. Poullos v. Pine Crest Homes, LLC, 876 N.W.2d 356 (Neb. 2016).
The Utah Supreme Court has affirmed and applied the doctrine of “boundary by acquiescence” under which a border is set informally when neighbors recognize a line between their properties. Q-2 LLC v. Hughes, 368 P.3d 86 (Utah 2016). The court noted that title shifts at the point when the parties act to satisfy the doctrine not when the border is recognized by a court. Establishment of boundary by acquiescence in Utah requires (1) occupation up to a visible line marked by monuments, fences, or buildings; (2) mutual acquiescence in the line as a boundary; (3) for at least 20 years; (4) by adjoining owners. The doctrine differs from adverse possession because it is based on mutual permission rather than adverse occupation (occupation that is non-permissive).
