The Maine Supreme Court held that a landowner may remove encroaching non-boundary tree branches or roots using self-help even if the removal damages the tree. Atkins v. Adams, 301 A.3d 802 (Me. 2023).
Maine allows destruction of encroaching branches or roots even if it destroys the tree Read More »
The Iowa Supreme Court upheld the conviction of a person under a trespass statute criminalizes trespass with the intent to commit a hate crime, State v. Geddes, 998 N.W.2d 166 (Iowa 2023). See Iowa Code §716.8(3); §729A.2. The defendant targeted homes with rainbow flags or decals and taped anonymous notes saying “burn that gay flag”. The Court rejected the argument that the defendant had a first amendment right to place stickers on someone else’s home. The court found that the statute did not criminalize speech but conduct: trespassing because of the owner’s sexual orientation or association with persons of a certain sexual orientation.
Criminal trespass to commit a hate crime against supporters of gay rights Read More »
The Ohio Supreme Court held that a tenant has a right to receive visitors. Landlords have no right to stop third parties from entering the leased premises at the invitation of a tenant. A visitor who has a tenant’s permission to enter has not committed a criminal trespass just because the landlord has sought to bar that person from the property. State v. Randolph, 2023 WL 9007535 (Ohio 2023). Oddly, however, the court seemed to suggest that the landlord might have the power it the landlord retained the power in the lease. This later point, however, was dicta and the court was not confronted with a landlord who doesn’t want tenants to have friends. Most courts would find such a covenant to violate public policy. The landlord has the right to exclude people for valid business reasons but has no power to determine who tenants invite into their homes.
Tenant right to receive visitors Read More »
The New Hampshire Supreme Court upheld the criminal trespass conviction of a person who refused to leave a school board meeting when she entered without a mask knowing that it was required and when she refused to leave. State v. Bossi, 2024 WL 336446 (N.H. 2024).
Trespass to enter property without a mask when the owner requires it Read More »
The Massachusetts Supreme Judicial Court has held that joint tenants can sever the joint tenancy and destroy the right of survivorship by agreement. Furnas v. Cirone, 221 N.E.3d 772 (Mass. 2023). While a joint tenant does not sever the joint tenancy by moving out, severance does happen when when the parties agree that one owner will remove all his personal property, continue to make monthly payments to his co-owner for half the monthly mortgage payment, and that the co-owner would either refinance or put the property up for sale. This agreement, by itself, was sufficient in the court’s eyes to “sever” the joint tenancy and turn the interests into tenancy in common interests.
Joint tenancy severed by agreement Read More »
The Supreme Judicial Court ruled that a landlord was entitled to five years of rent upon the tenant’s breach in accord with a rent acceleration clause in the lease, even though the landlord was able to quickly find a replacement tenant. Cummings Props., LLC v. Hines, 217 N.E>3d 604 (Mass. 2023). The court believed the amount of the liquidated damages was not an unreasonable estimate of the costs of breach, and that it did not matter how much the damages actually were, in other words, how quickly the landlord was able to relet the premises. The court found, unlike many other courts, that the remaining rent is per se a reasonable estimate of the damages from breaching the lease regardless of how easy it is to find a replacement tenant. Id. at 610.
Rent acceleration clause deemed not to be a penalty in Massachusetts commercial lease Read More »
In a recurring, painful issue, the Fifth Circuit agreed with the majority approach in finding that it was not an unconstitutional taking of property to damage a landowner’s house when that was necessary to apprehend an armed criminal intent on shooting it out with the police. Baker v. City of McKinney, 84 F.4th 378 (5th Cir. 2023), reh’g denied, 93 F.4th 251 (5th Cir. 2024). This was an “active emergency” that made it “objectively necessary’ to damage or destroy the property to prevent imminent harm to persons. Public emergency allows the government to damage or destroy property without compensation. The Fifth Circuit justified the result as based on history and longstanding tradition, as well as precedent both before and after adoption of the Constitution.
No regulatory taking when property is destroyed by police to apprehend a suspect Read More »
When a tenant pays rent late habitually and the landlord does not object, courts will generally not allow eviction because the landlord’s actions have shown that the late payments are not material. It is as if the terms of the agreement were renegotiated. But what happens if the landlord does object and even imposing penalties, as allowed in the lease, for the late payments? Can longstanding late payments justify eviction then? One might think the answer is yes because the timing of rental payments is generally thought to be a material term of the rent agreement. But a Massachusetts courts refused to allow eviction of a commercial tenant (a restaurant) in these circumstances. Varano v. PDJM Land Trust, LLC, 230 N.E.3d 1060 (Mass. App. Ct. 2024). The court found that the rent payments were usually only a few days late, although sometimes as much as a few weeks. The court
Late rent payments may not justify eviction Read More »
The California Supreme Court accepted the doctrine of easements implied from prior use in Romero v. Shih, 541 P.3d 1112 (Cal. 2024), and it also clarified the meaning of the “exclusivity” requirement that some states use for prescriptive easements. Here an owner of two lots built a driveway that intruded on one of the lots. He sold the lot that suffered the encroachment with the buyer having knowledge of the encroachment. They intended to move the border but never got around to it. When the properties changed hands, the question arose whether the encroachment was a continuing trespass. The court held that the doctrine of easements implied from prior use applied, in this case, an easement reserved by the grantor rather than one given to the grantee (an easement by grant). In such cases, the parties’ mistake in setting the borders results in an effective reformation of the deeds to
Easements implied from prior use recognized in California Read More »
Reaffirming the basic mechanics of adverse possession a Virginia court holds that successive adverse possessors can tack their time together to meet the statutory period. So an adverse possessor who occupies land for 10 years and sells their property to a buyer who also occupies it for five more years satisfies a 15-year requirement for adverse possession. And when the record owner sells their property, they have now lost title to the adversely possessed property and have no power to transfer that property to their buyer. The recording statutes do not protect the buyer because they are on constructive notice of what an inspection of the property would show, i.e., that their neighbor is occupying property described in the deed. That inquiry would reveal the transfer of title by adverse possession and so the buyer is not actually a “bona fide purchaser” without notice. See Ho v. Rahman, 896 S.E.2d
Tacking can establish adverse possession Read More »
