Tribal title can only be extinguished by federal, not state, law

/ Tribal Property

In a reaffirmation of longstanding doctrine, a federal court in New York has applied the Trade and Intercourse Act of 1790, as amended, 25 U.S.C. §177 (the “Nonintercourse Act”), to hold that the title to land of the Canadian St. Regis Band of Mohawk Indians retains title to certain lands in the state of New York since the transfer of those lands from the tribe to the state of New York was never ratified by Congress as required by the Nonintercourse Act. Canadian St. Regis Band of Mohawk Indians v. New York, 2022 WL 768669 (N.D. N.Y. 2022). The court emphasized that retention of title does not necessarily mean that the tribe has recourse to any particular remedy such as damages or ejectment; rights and remedies, the court noted, as separate. Other cases have appeared to hold (or have held) that Indian nations in New York may hold bare title to …

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Covenants can burden future interests, at least where environmental protection is concerned

/ Easements, Environmental Law, Servitudes

A California appellate court interpreted a conveyance to include both a fee simple subject to condition subsequent with a right of entry in the grantor and a conservation easement limiting the property as “natural open space.” While it is not clear the court interpreted the conveyance correctly, it is significant that the court found that an easement (or covenant) can coexist with a right of entry. If structured correctly, such a conveyance would mean that a grantor can both require title to be forfeited to the grantor (or its assignees) if the current possessor violates a conservation condition and can bind the grantor or its assignees who exercise the right of entry with the same condition in the form of an easement or covenant. Canyon Vineyard Estates I, LLC v. DeJoria, 2022 WL 1183373 (Cal. Ct. App. 2022). One might think that the grantor must choose between imposing an easement or …

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Extended stay hotel residents are tenants

/ Homelessness, Leaseholds

A Georgia court has ruled that residents of extended stay hotels should be classified as tenants with the protections granted by landlord-tenant law. That means they can be removed only by court eviction procedures rather than self-help. Efficiency Lodge, Inc. v. Neason, 870 S.E.2d 549 (Ga. 2022).

Covenants that prohibit all leasing restrictions include short-term rentals

/ Leaseholds, Servitudes

The Texas Supreme Court has held that covenants that prohibit all restrictions on leasing cannot prohibit short term rentals, finding that a lease is still a lease if it only lasts for one day. JBrice Holdings, LLC v. Wilcrest Walk Townhomes Ass’n, Inc., 2022 WL 1194364 (Tex. 2022). In addition, short-term rentals were held not to be “commercial” or “non-residential uses.” The court noted that the covenants provided that they could be retroactively amended through a 75% vote of the owners.

Covenants cannot be amended retroactively if this violates homeowners’ legitimate expectations

/ Servitudes

The Arizona Supreme Court has limited the powers of homeowners associations to amend covenants retroactively when those amendments would unfairly surprise buyers who were not on notice of them when they bought their properties. Kalway v. Calabria Ranch HOA, LLC, 506 P.3d 18 (Ariz. 2022). In this case, the homeowners association adopted new restrictions on owners’ abilities to convey or subdivide their lots, restricted the size and number buildings permitted on each lot, and reduced the maximum number of livestock permitted on each lot. The court held that the original declaration must give “sufficient notice of the possibility of a future amendment; that is, amendments must be reasonable and foreseeable.” Thus owners cannot be retroactively forced to join a community club if not put on notice of that possibility in the declaration. Here, most of the amendments created “new affirmative obligations” such as limiting garage space to 40% of the dwelling, …

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Washington Supreme Court holds racial covenants in public records must be retained but can be marked void

/ Antidiscrimination Law, Servitudes

Construing a state statute, Wash. Stat. §49.60.227, the Washington Supreme Court held that racial covenants cannot be completely excised from public records. The court determined that the statute allowed a court order to be filed with the recorded title voiding the covenant but did not authorize excising the covenant from the public records entirely. This result occurred despite the fact that the statute provided that courts should “strik[e] the void provisions from the public records.” Wash. Stat. §49.60.227(1)(b). The statute did provide that the original record “shall be separately maintained in the county’s records.” This meant that the public title would note the illegality of the limitation but public records would continue to document the historical existence of the covenant. The court explained that “future generations [should] have access to these documents because, although the covenants are morally repugnant, they are part of a documented history of disenfranchisement of a …

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Foreclosure sale cannot be set aside even though the foreclosure price was only nine percent (9%) of fair market value

/ Mortgages

In a demonstration of the broken nature of our foreclosure system, the Alaska Supreme Court held in Thomas v. Joseph P. Casteel Trust, 496 P.3d 403 (Alaska 2021), that a foreclosure was lawful even though the buyer at foreclosure paid a mere nine percent (9%) of the fair market value of the property. Only if there were procedural irregularities could the foreclosure be set aside. This type of case makes the owner’s equity vanish into thin air and is inconsistent with the historical policies that limited strict foreclosure.

Neighbor cannot compel city to enforce zoning ordinance

/ Zoning

The Florida Supreme Court has held that cities cannot be compelled to enforce zoning laws. In City of West Palm Beach v. Haver, 2021 Fla. LEXIS 1572 (Fla. 2021), a neighbor sought a court order to force the city to enforce a zoning prohibition on a group home. The court ruled that it would exceed the legitimate role of the courts to order city officials to comply with local zoning laws when the decision in question is one that has traditionally been discretionary on the part of public officials. The court would not interfere with “administrative enforcement decisions of a kind that traditionally have been considered discretionary and that embody value-laden judgments about the proper allocation of scarce governmental resources.”

Real estate sellers cannot change their minds once a contract is signed

/ Real Estate Transactions, Title Issues

The Massachusetts Land Court has reaffirmed a traditional rule of law that parties to a real estate contract involving the sale of land have the right to demand specific performance. In this case, that meant that, once a land sales contract is signed by both parties, the buyer is entitled to a judgment ordering the seller to go through with the sale; the seller has no right to change their mind and refuse to sell. The court noted that this rule applies equally to buyers and sellers. Niziak v. Daniels, 2021 WL 6013961, at *7 (Mass. Land Ct. 2021).

Courts split on whether short term rentals are a nonresidential use

/ Condominiums and Homeowners Associations, Real Estate Transactions, Servitudes

With continued disagreement among courts in the U.S., the Kentucky Supreme Court has weighed in on the side of finding short term rentals of property to be more like hotels than home ownership or residential leasing and so does not qualify as a “residential” use prohibited by a covenant that prohibits nonresidential uses of the land.. Hensley v. Gadd, 560 S.W.3d 516 (Ky. 2018). In contrast, the Arkansas Supreme Court rules that short-term rentals in a residential subdivisin die not violate a restrictive covenant that prohibited commercial uses. Vera Lee Angel Revocable Tr. v. Jim O’Bryant & Kay O’Bryant Joint Revocable Tr., 537 S.W.3d 254 (Ark. 2018).

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