Affirming an old rule of property law, the Oregon Court of Appeals held that an appurtenant easement cannot be separated from, or transferred separately from, the dominant estate that it benefits. Block v. DEA Properties-2 LLC, 2021 WL 5098850, 315 Or.App. 525 (Or. Ct. App. 2021).
Appurtenant easements cannot be separated from the dominant estate Read More »
A federal judge for the Western District of New York has ruled that the state public accommodations statute can be applied to a wedding photographer who refused to provide services for same-sex couples. Carpenter v. James, 2021 WL 5879090 (W.D.N.Y. 2021). On the speech claim, the court assumed that the law compelled speech on the part of the photographer but held that the law only affected speech incidentally in connection with regulation of economic activity and that the law was narrowly tailored to achieve its purposes. The court also held that the provision of photography services did not require the photographer to participate in a religious ceremony. Note that an Eighth Circuit decision disagrees. Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019).
Banks seem to have a hard time understanding that when they obtain title to property through a foreclosure sale that they not only own the property but have taken on themselves all the obligations that an owner has. If the property is occupied by tenants, the bank-owner is automatically the new landlord and the law imposes duties on landlords. The law also requires owners not to let their property become a nuisance. But this simple legal truth is repeatedly resisted by some banks. This rule extends to any entity that is the legal owner of the property and that includes the trustee of residential mortgage-backed securities that purchases the property at a foreclosure sale. The Maryland Court of Appeals ruled in Hector v. Bank of New York Mellon, 473 Md. 535, 251 A.3d 1102 (Md. 2021), that a lender that becomes a property owner by buying property at a foreclosure sale
The Ninth Circuit upheld a city eviction moratorium against a contracts clause challenge. Apartment Ass’n of Los Angeles County, Inc. v. City of Los Angeles, 2021 WL 3745777 (9th Cir. 2021). While the law did affect contract rights, it was reasonable and appropriate and did not constitute retroactive deprivation of vested rights as required for the clause to apply. The court cited Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934), a Supreme Court precedent that was on point and has not been repudiated by the current Court. The Ninth Circuit also cited the recent 2018 case of Sveen v. Melin, 138 S. Ct. 1815 (2018) which adopted a two-step test, asking whether the law imposes a “substantial” impairment of contract rights, and, if so, whether the law is “appropriate” and “reasonable” way to advance a legitimate public purpose. The court did not reach the question of whether the
Eviction moratorium does not violate contract clause Read More »
A Kansas statute (Kansas Farm Animal and Field Crop and Research Facilities Protection Act, Kan. Stat. §47-1825 to §47-1828) criminalized entry into an agricultural facility “without the effective consent of the owner” if the intent is to “damage the enterprise.” Animal Leg. Defense Fund v. Kelly, 2021 WL 3671122 (10th Cir. 2021). The Tenth Circuit struck down three provisions of the act under the first amendment because they were not content or viewpoint neutral and thus subject to strict scrutiny. The three provisions were in §47-1827 and they prohibited exercising control over an animal facility, recording on the property, or trespassing without the effective consent of the owner with the intent to damage the enterprise. The court cited Judge Posner’s opinion in Desnick v. Am. Broadcasting Co., Inc., 44 F.3d 1345 (7th Cir. 1995) approvingly for the proposition that entry to property does not infringe on the right to exclusive possession just
Kansas “ag gag” law unconstitutional infringement on free speech Read More »
The Eleventh Circuit joins other courts that have held that sexual harassment by a landlord (or an agent of the landlord) can constitute sex discrimination in violation of the Fair Housing Act, 42 U.S.C. §3601 to §3613 if the behavior would not have occurred but for the tenant’s sex. This formulation has been adopted by other courts, see United States v. Hurt, 676 F.3d 649 (9th Cir. 2012), Quigley v. Winter, 598 F.3d 938 (8th Cir. 2010), and suggests that a landlord that sexually harasses both men and women would not be liable for engaging in sex discrimination — a result that would enable landlords to insulate themselves from liability by choosing to harass tenants indiscriminately.
Sexual harassment of tenant by property manager violates Fair Housing Act Read More »
The Eleventh Circuit ruled that a town could prevent an owner from building a home that had an architectural design out of keeping with surrounding homes. Burns v. Town of Palm Beach, 2021 WL 2325300 (11th Cir. 2021). The owner hoped to demolish his home and build one more than twice as large in a midcentury modern style rather than the typical Palm Beach beachfront house style. The town zoning laws had created an architectural review commission empowered to regulate the architectural style of homes to achieve a coherent and beautiful neighborhood environment free from large deviations. Because Palm Beach is a tourist destination, the town has an interest in preserving what makes the town attractive to visitors. When the commission rejected the proposed plans, the owner sued claiming that the design expressed his commitment to a simpler lifestyle with fewer possessions and that the town’s prohibition on his design infringed
Town esthetic zoning law does not violate the owner’s free speech rights Read More »
The Eleventh Circuit held that the public accommodation provisions of the Americans with Disabilities Act, Title III, do not apply to websites but only to physical stores. Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir. 2021). The court found the language in the statute to be unambiguous. The court explained that the statutory definition “describes twelve types of locations that are public accommodations. All of these listed types of locations are tangible, physical places. No intangible places or spaces, such as websites, are listed. Thus, we conclude that, pursuant to the plain language of Title III of the ADA, public accommodations are limited to actual, physical places. Necessarily then, we hold that websites are not a place of public accommodation under Title III of the ADA. Therefore, Gil’s inability to access and communicate with the website itself is not a violation of Title III.” The court noted disagreement among the
Websites held not to be public accommodations under the Americans with Disabilities Act Read More »
New York retains a version of the traditional rule against perpetuities. Like most states, it has classified options to purchase and rights of first refusal as “executory interests” subject to the rule against perpetuities. They therefore must vest (if at all) within 21 years of their creation, or within 21 years of the death of a named person in the conveyance or during the lifetime of a named person. The latter was the case in Martin v. Seeley, 142 N.Y.S.3d 252 (App. Div. 2021) where the right of first refusal could be exercised only by the original holder of it. The court also resolved a conflict between language suggesting the covenant ran with the land but that it would not apply to any successors in interest by finding that the “running with the land language” was of no legal effect.
The Maryland Supreme Court held that residential tenants can sue for damages if the landlord posts a notice telling them that they are being evicted. This constitutes a form of “nonjudicial self-help eviction” prohibited by state law, which requires landlords to use court eviction procedures to recover possession of the premises. State law would have allowed self-help eviction only if the landlord had a reasonable belief based on a reasonable inquiry that the tenants had abandoned the premises, something that did not happen in this case. Wheeling v. Selene Finance LP,2021 WL 1712318 (Md. 2021). The court found that a threat to use self-help eviction violated the statute and that this allowed a suit for damages under the state statute prohibiting self-help eviction, Md. Real Prop. art. §7-113, and a suit for emotional damages under the Maryland Consumer Protection Act, Md. Commercial Law art. §13-101 et seq.
Damages awarded tenant when landlord threatens to engage in illegal self-help eviction Read More »
