No landlord duty to inspect rental property periodically

The North Carolina Supreme Court has held that the implied warranty of habitability does not obligate landlords to inspect premises periodically to find problems. Terry v. Pub. Serv. Co., 898 S.E.2d 648 (N.C. 2024). Rental property was inspected a couple of times when the neighbor and the tenant smelled gas, but nothing was found and the tenant did not notify the landlord. Subsequently, the tenant was severely injured by an explosion caused by a corroding gas pipe. While the trial court found no violation of state statutes regulating residential rental property, the appeals court reversed. But the Supreme Court reversed the appeals court and held that the landlord has no duty of repair under the statute unless the tenant notifies the landlord of the problem first. This seems in line with the law in most states which do not impose liability on landlords for personal injury due to conditions in …

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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

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 …

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More courts hold that the Americans with Disabilities Act (ADA) does not apply to websites, only physical stores

Two separate cases by judges in the Southern District of New York have held that the Americans with Disabilities Act does not apply to websites since it only covers “places” of public accommodation and websites have no “place. Mejia v. High Brew Coffee Inc., 2024 WL 4350912 (S.D.N.Y. 2024); Sookol v. Fresh Clean Threads, 2024 WL 4499206 (S.D.N.Y. 2024). The Eleventh Circuit agrees. Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir. 2021), as do the Third, Sixth, and Ninth Circuits. Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010-11 (6th Cir. 1997); Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905 (9th Cir. 2019); Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266, 1276-77 (11th Cir.), opinion vacated for mootness, 21 F.4th 775 (11th Cir. 2021). The First Circuit, however, held that the phrase “public accommodation” “is not limited …

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

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 …

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Massachusetts Supreme Judicial Court rules engagement rings to be conditional gifts

Overruling its precedent from 1959, the high court in the Commonwealth of Massachusetts joins the modern approach by holding that engagement rings should be returned to the giver if the engagement falls through without regard to whose fault it is that the engagement was called off. Johnson v. Settino, 2024 WL 4714383 (Mass. 2024) (overruling DeCicco v. Barker, 159 N.E.2d 534 (Mass. 1959)). The ruling makes the issue consistent with the no fault divorce regime that eschews consideration of fault in dissolving marriages. The ring is considered a conditional gift that only becomes permanent when the engagement results in a marriage.

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

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 …

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Police damage to house not compensable under the takings clause

In an upsetting but not surprising decision, the Sixth Circuit has held that damage to property caused by police in the course of their duties, including finding and apprehending those who committed or are suspected of having committed a crime, is not compensable as a “taking” of property within the meaning of the Takings Clause of the US Constitution. Slaybaugh v. Rutherford Cnty., 2024 WL 4020769 (6th Cir. 2024). In this case, a mother and son were in her house and she could not convince him to give himself up to the police. She exited the home and they fired 35 tear gas cannisters into the home, causing $70,000 of damage to the house and the contents inside. The insurance company would not cover the loss because it was “self-inflicted” and the owner’s suit against the city failed because the longstanding rule is that the police cannot be hampered in …

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Promise to make a gift at death enforceable if relied on by continued cohabitation

The New Hampshire Supreme Court has held that a promise to give a gift at death if she continued to live with him until his death is enforceable even though it does not satisfy the state statute of wills if the promisor receives consideration for the promise, and continued cohabitation after the promise suffices. Tremblay v. Bald, 2024 WL 332101 (N.H. 2024). The contract was enforceable even though the decedent died intestate and could have, but did not, convert the written promise into a formal will.

Violation of fair housing statute is a defense to eviction

The Colorado Supreme Court has held that a landlord who has violated fair housing laws may be disabled from evicted the tenant who was the victim of that discrimination. Miller v. Amos, 543 P.3d 393 (Colo. 2024). The court reasoned that the statutory rights to be free from discrimination not only provide claims but can operate as a valid defense to an assertion of property rights. In this case, the landlord repeatedly demanded that the tenant have sex with him. When she refused, he sued to evict her. In that eviction action, she raised the state fair housing statute as a defense (sexual harassment constitutes sex discrimination), and the state supreme court agreed that the state fair housing law could be used as a defense when the the lease was an oral one that otherwise could be terminated for any reason.

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