Consumer Protection

Airbnb use held to be consistent with covenant restricting property to residential use

/ Condominiums and Homeowners Associations, Consumer Protection, Servitudes

Courts have divided on the question of whether short-term rentals violate restrictive covenants limiting land to residential purposes. The Texas Supreme Court just joined the majority that hold that use of property for Airbnb and similar short term rentals is residential use consistent with the covenant. Tarr v. Timberwood Park Owners Ass’n, 2018 Tex. LEXIS 442 (Tex 2018). But see Vonderhaar v. Lakeside Place Homeowners Ass’n, 2014 WL 3887913 (Ky. Ct. App. 2014) (finding short-terms rentals to be closer to hotel use and thus commercial in nature).

Section 8 (housing voucher) tenants cannot be evicted without cause even if their lease term has expired and the landlord has opted out of the housing assistance program

/ Consumer Protection, Homelessness, Leaseholds, Real Estate Transactions, Restraints on Alienation

The Third Circuit has ruled that the federal statute, 42 U.S.C. §1437f(t)(1)(B), that gives Section 8 (housing voucher) tenants the right to “remain in their housing developments, even after their landlord has opted out of the federal housing assistance program,” gives them the right to stay unless just cause can be shown to evict have the right to remain even if the lease term has expired. Hayes v. Harvey, 2018 U.S. App. LEXIS 24848 (3d Cir. 2018).

Is it an unconstitutional taking of property without just compensation to require sex offenders to move away from their home if a school, playground, or daycare center is established near their home after their initial occupation?

/ Consumer Protection, Estates and Future Interests, Homelessness, Takings

In Mann v. Georgia Department of Corrections,653 S.E.2d 740 (Ga. 2007), the Georgia Supreme Court held that a state statute prohibiting registered sex offenders from living or working within 1,000 feet of any facility where minors congregate, see Ga. Code Åò42-1-15, constituted a taking of property as applied to a sex offender who was forced to move after a child care center opened a facility within 1,000 feet of his home. The court noted that “it is apparent that there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected.” 653 S.E.2d at 755. Moreover, the effect of the statute “is to mandate appellant’s immediate physical removal from his . . . residence.” The court noted “the strong governmental interests that are advanced by the residency restriction” on sex offenders, but also found that the law effectively allowed “private third parties” …

Is it an unconstitutional taking of property without just compensation to require sex offenders to move away from their home if a school, playground, or daycare center is established near their home after their initial occupation? Read More »

Religious exemption to public accommodation laws rejected by Supreme Court while those laws cannot be administered in a way that demonstrates hostility to religion or that unfairly discriminates among religious beliefs

/ Antidiscrimination Law, Consumer Protection, Free Speech, Legal Theory, Religious Freedom, Sexual Orientation

This blog entry has a long title because the Supreme Court’s ruling in Masterpiece Cakeshop, Ltd., v. Colo. Civil Rights Comm’n, 2018 U.S. LEXIS 3386, 2018 WL 2465172 (U.S. 2018) is complicated and cannot be summarized quickly. While the baker won the case (the Supreme Court reversed the state court order to him to pay civil rights damages to the plaintiff couple for refusing to sell them a “wedding cake”), he won it on such narrow grounds that the decision is likely to wind up supporting the power to states to enforce civil rights law without regard to the religious objections of business owners. The Supreme Court ruled in favor of the baker on narrow grounds in a 7-2 decision with four judges concurring. The two dissenting judges were Ginsburg and Sotomayor. Three concurring opinions were written by Kagan (joined by Breyer) and Gorsuch (joined by Alito) and Thomas (joined by Gorsuch). …

Religious exemption to public accommodation laws rejected by Supreme Court while those laws cannot be administered in a way that demonstrates hostility to religion or that unfairly discriminates among religious beliefs Read More »

Landlord’s failure to comply with security deposit regulations may be defense to eviction

/ Consumer Protection, Leaseholds

A Massachusetts court, in the case of Duff v. Pouliot,2018 Mass. App. Div. 42, 2018 Mass. App. Div. LEXIS 10 (Mass. Dist. Ct. App. Div. 2018), has reaffirmed and applied a state supreme court precedent, Meikle v. Nurse,49 N.E.3d 210 (Mass. 2016), holding that a landlord’s violation of the state security deposit statute may constitute a defense to a claim for possession and thus protect the tenant from eviction.

New York City and San Francisco vote to guarantee lawyers for some or all tenants facing eviction

/ Consumer Protection, Due Process, Leaseholds, Real Estate Transactions

New York City was the first city to guarantee lawyers to most low-income tenants facing eviction. Ashley Dejean, New York Becomes First City to Guarantee Lawyers to Tenants Facing Eviction, Mother Jones, Aug. 11, 2017.. When fully in force, the law will provide legal services to tenatns facing eviction who make below 200 percent of the federal poverty line. The program will be phased in over a five-year period.  San Francisco voters passed Proposition F on June 5, 2018 that would require the city to establish, fund, and run a program to provide legal representation for all residential tenants in San Francisco facing eviction regardless of their income. Adam Brinklow, SF voters guarantee lawyers for evicted tenants: Proposition F passes with more than 55 percent of the vote, Curbed: San Francisco, Jun. 7, 2018.

Owners must continue to pay homeowners association fees to maintain private roads even after all other covenants terminate

/ Condominiums and Homeowners Associations, Consumer Protection, Easements, Real Estate Transactions, Servitudes

A Massachusetts court has held that owners in a homeowners association that have access to shared private roads must continue to pay fees to the association to maintain those roads even after all other covenants terminate. Meadowview Heights Homeowners Ass’n, Inc. v. Chosse, 2018 Mass. App. Div. 54, 2018 Mass. App. Div. LEXIS 14 (Mass. Dist. Ct. App. Div. 2018). The court found that the assessments were not covenants subject to a termination clause but were implied obligations to share in the burden of maintaining a common benefit in the private roads that arose as an equitable servitude and implied contract.

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 …

Legal questions about landlord liability when one tenant harasses another Read More »

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 …

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 Read More »

Scroll to Top