Leaseholds

Can an owner or inhabitant of real property give police the right to search property when a co-owner or coinhabitant objects?

/ Concurrent or Common Ownership, Estates and Future Interests, Fourth Amendment, Leaseholds, Marital Property, Trespass

The Appeals Court of Massachusetts held that the police could search a closed suitcase in a common closet of a bedroom when given permission to do so by the defendant’s coinhabitant. Commonwealth v. Hernandez,93 Mass. App. Ct. 172, 2018 Mass. App. LEXIS 48 (Mass. App. Ct. 2018). This ruling was based on traditional rules of property law that give tenants in common rights of access to the property they both own. The court noted that any coinhabitant had the right to consent to a search of her home, her bedroom, and her closet because these were areas where both inhabitants shared joint access or control. The Supreme Court reached the opposite conclusion in the case of Georgia v. Randolph,547 U.S. 103 (2006) when it held that the police could not enter property owned by a married couple when one (but not the other) objected to entry. The Massachusetts case is consistent with …

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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.

Landlord does not commit disability discrimination when refusing to allow a tenant to keep an aggressive dog

/ Antidiscrimination Law, Fair Housing Act, Leaseholds

The Fair Housing Act requires landlords to avoid discrimination because of disability and to reasonably accommodate the needs of tenants by changing policies or practices to enable access to housing by persons with disabilities. However, accommodation is not required if it will pose a “direct threat” to the health or safety of others. This means that a landlord with a “no pets” policy must allow a tenant to keep an assistance animal unless doing so would impose an undue financial burden on the landlord or would fundamentally alter the nature of the housing services. In this case, the court found that the tenant was not entitled to a reasonable accommodation when the dog exhibited aggressive tendencies, that some residents stayed inside because they were afraid of the dog, and that the tenant might not be able to control the dog. Gill Terrace Retirement Apts., Inc. v. Johnson,177 A.3d 1087 (Vt. 2017).

Short term rentals (such as Airbnb) held not to violate a covenant prohibiting “commercial use” contrary to rulings of some other courts

/ Leaseholds, Servitudes

Courts disagree about whether covenants prohibiting “commercial use” of real property apply to short term rentals like Airbnb. While some courts have said that such rentals do constitute commercial use, see, others have found the use not to be commercial but residential in nature. The Arkansas Supreme Court joined the courts that find Airbnb to be a residential rather than a commercial use of property. Vera Lee Revocable Trust v. O’Bryant, 537 S.W.3d 254 (Ark. 2018). Accord, Slaby v. Mountain River Estates Residential Ass’n, Inc.,100 So. 3d 569 (Ala. Ct. Civ. App. 2012). This is an ongoing debate among courts: Some courts hold that short term rentals (such as Airbnb rentals) violate covenants that restrict the property to “residential use,” finding short-terms rentals to be closer to hotel use and thus commercial in nature. Vonderhaar v. Lakeside Place Homeowners Ass’n, 2014 WL 3887913 (Ky. Ct. App. 2014). Other courts find short term rentals to be …

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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.

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 …

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An easement granted by a tenant ends when the tenancy terminates

/ Easements, Leaseholds

In Bedard v. City of Boise City, 403 P.3d 632 (Idaho 2017), the court recognized that a tenant who is empowered to grant an easement of access to property has no power to make that easement last beyond the term of the tenant’s rights in the property. Once the tenancy terminates, so does the easement. The tenant has no possessory rights once the tenancy terminates and you can only convey what you own.

Part performance as exception to the statute of frauds

/ Leaseholds, Real Estate Transactions, Statute of Frauds, Title Issues

The Idaho Supreme Court reaffirmed the traditional rule that part performance of a real estate agreement can constitute an exception to the statute of frauds. If that is the case, a contract that would otherwise be unenforceable because it does not comply with the statutory writing formalities may be enforced nonetheless. Hoke v. NeYada, 387 P.3d 118 (Idaho 2016). The case involved a lease with an option to purchase. Because the “buyer” had already entered into possession of the property and needed only to make the required payments, the agreement was enforceable despite the fact that the land description was not sufficiently precise to satisfy the statute of frauds.

Retroactive restraints on leasing in homeowners associations

/ Condominiums and Homeowners Associations, Estates and Future Interests, Leaseholds, Real Estate Transactions, Restraints on Alienation, Servitudes

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 …

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