Servitudes

Fair Housing Act (FHA) protects homeowners from limits on their Christmas display if the reasons for those limits are based on the owners’ religion rather than the scope of their activities

/ Antidiscrimination Law, Condominiums and Homeowners Associations, Fair Housing Act, Religious Freedom, Servitudes

The Ninth Circuit has held that a homeowners association may not be able to enforce its rules limiting the scope of a Christmas display by owners in the common scheme if those limits are  motivated by opposition to the owner’s religion in violation of the Fair Housing Act, 42 U.S.C. §3617. Morris v. W. Hayden Estates First Addition Homeowners Ass’n, Inc., 104 F.4th 1128 (9th Cir. 2024). The owners (Jeremy and Kristy Morris)  had engaged in these activities at their prior home where they had strung up thousands of Christmas lights, sang Christmas carols, employed costumed characters playing Santa Claus and the Grinch, and hosted a live nativity scene with a live camel. The family also offered free hot chocolate to visitors which led to 200 families visiting their property the first day with 20 to 100 families visiting the rest of the week. When the owners put in an …

Fair Housing Act (FHA) protects homeowners from limits on their Christmas display if the reasons for those limits are based on the owners’ religion rather than the scope of their activities Read More »

Retroactive restriction on commercial use invalid against a lot that was expressly permitted to engage in such uses

/ Condominiums and Homeowners Associations, Servitudes

The Supreme Court of Virginia has held that a declaration that gives owners collective powers to “modify” or “change” covenants in the declaration did not give the owners the right to prevent commercial use by a lot owner that had been expressly permitted to engage in commercial uses under the original declaration. Westrick v. Dorcon Group, LLC, 901 S.E.2d, 468 (Va. 2024). While the court focused on dictionary definitions of the word “modify,” it also took the traditional (and now receding view) that covenants such be seen as encumbrances on property (rather than as valuable benefits) and thus should be interpreted narrowly to ensure the widest freedom to use land. It also noted that the power to create “exceptions,” or “modifications,” or to “vacate” the restrictions suggested a power to limit the restrictions, not a power to introduce new ones. There was no homeowner’s association created by the declaration, but …

Retroactive restriction on commercial use invalid against a lot that was expressly permitted to engage in such uses Read More »

HOA cannot prohibit short-term leasing if original covenants contained no restraints on alienation

/ Concurrent or Common Ownership, Condominiums and Homeowners Associations, Servitudes

A North Carolina court refused to allow a homeowners association (HOA) to amend its covenants to ba short-term leasing (leasing for less than 90 days) even though the HOA followed the correct procedures to amend the covenants and nothing limited their power to adopt the restriction. McDougald v. White Oak Plantation Homeowners Ass’n, 904 S.E.2d 180 (N.C. Ct. App. 2024). The modern approach to covenants tends to see them as valuable property rights and the ability of an association to “govern” the association by imposing limits on land use as a welcome power, the traditional approach viewed covenants as meddlesome encumbrances on ownership that burden an owner’s freedom to use their property as they see fit, especially when ownership is held in fee simple. These contrasting attitudes mean that the modern approach interprets ambiguities in the declaration to achieve the intent of the grantor and perhaps even to give the …

HOA cannot prohibit short-term leasing if original covenants contained no restraints on alienation Read More »

Short-term rentals and residential use restrictions

/ Servitudes, Zoning

We see continued disagreement among the states on the question of whether short-term rentals violate residential use restrictions in covenants or zoning law. Some courts say that short-term rentals are consistent with residential or single-family use restrictions. See, e.g., Pandharipande v. FSD Corp., 679 S.W.3d 610 (Tenn. 2023); Lake Serene Prop. Owners Ass’n Inc. v. Esplin, 334 So.3d 1139 (Miss. 2022); Wilson v. Maynard, 961 N.W.2d 596, 2021 SD 37 (S.D. 2021). But other courts deem short-term rentals to be a trade or business and presumptively not a residential use. See, e.g., Morgan v. Townsend, 302 A.3d 30, 2023 ME 62 (Me. 2023). See also Dixon v. City of Auburn, 2023 WL 7096600 (Ala. 2023) (short-term rentals are inconsistent with zoning limitation to single-family detached dwelling units”).

Should covenants be construed strictly or liberally?

/ Servitudes

The Tennessee Supreme Court affirmed the traditional rule that covenants should be seen as encumbrances on the land and strictly construed in a narrow manner so that free use of land is not unduly limited. Phillips v. Hatfield, 624 S.W.3d 464 (Tenn. 2021). This is inconsistent with the more modern method adopted by an increasing number of courts that interpret covenants by focusing on the grantor’s intent.

Covenant changes cannot be imposed retroactively if they were not reasonably foreseeable despite a general amendment power in the declaration

/ Servitudes

The Arizona Supreme Court has held that a general amendment power in a declaration does not give a homeowners’ association power to amend covenants retroactively in major ways that would violate the reasonable expectations of buyers. Kalway v. Calabria Ranch HOA, LLC, 506 P.3d 18 (Ariz. 2022). The covenants that were thought to be unfairly surprising limited the size and use of dwellings, prohibited improvements without consent of the association, changed the types and quantity of permissible livestock, limited the height and size of non-dwelling structures, and other limitations on improvements. The court noted that Arizona statutes permit amendment of covenants by the association, but held that the statute did not displace the common law rule that requires the declaration to give buyers sufficient notice of the types of amendments that are permitted.

Do prescriptive easements have to be “exclusive”?

/ Adverse Possession, Easements, Servitudes

Exclusivity makes sense for adverse possession because the very meaning of “possession” is that the adverse possessor acts like the owner and that includes the right to exclude the record owner. With easements, it makes far less sense since easements are limited uses of another’s land and the land owner can still use the land over which the easement sits as long as the owner does not interfere with the uses encompassed by the easement. To deny a prescriptive easement over a road because the record owner also uses the road doesn’t make much sense. Excluding the record owner would turn the case into one of possession rather use and that would make prescriptive easements impossible if the record owner continued using the land even if the owner did not exclude or interfere with the use of the easement by the prescriptive easement claimant. Despite that traditional approach, the Texas …

Do prescriptive easements have to be “exclusive”? Read More »

Is land use presumptively permissive or nonpermissive in the case of prescriptive easements?

/ Adverse Possession, Easements, Servitudes

The general common law of trespass in most states presumes that entry to land of another is nonpermissive. That presumption can be overcome by expressions of permission or by social conventions, such as opening up a shop or knocking on someone’s front door to lobby them to support a political candidate. Some states have an exception for undeveloped forest land where nonowners can hunt unless the landowner has posted “no hunting” signs. This presumption that entry is nonpermissive is a staple of adverse possession law. Occupation of the property of another is presumed to be nonpermissive unless facts can be shown otherwise. The same has historically been true for prescriptive easements. Use of another’s land without permission is presumptively a trespass. However, in recent years, some courts have balked at granting prescriptive easements for uses other than travel over a right of way. They have not wanted neighborly gestures to …

Is land use presumptively permissive or nonpermissive in the case of prescriptive easements? Read More »

Prescriptive easements do not actually require “exclusive” use no matter what courts say

/ Adverse Possession, Easements, Servitudes

Many courts say that prescriptive easements can only be acquired if the use is “exclusive” among other elements. This is a mechanical holdover from the requirements for adverse possession where courts simply keep the same requirements and substitute “use” for “possession.” But it make no sense for an easement to be “exclusive” since the dominant estate owner retains whatever rights of use are not inconsistent with the easement. It is simply not how easements work for them to be exclusive of the land owner. If the landowner cannot use the easement in any way then the owner has lost title to the property. Of course, one can write an express easement to limit the freedoms of the land owner, but in general, the way easements work is to grant a limited use to another while the land owner retains all rights not inconsistent with that use. In effect, an easement …

Prescriptive easements do not actually require “exclusive” use no matter what courts say Read More »

Scroll to Top