Two court reject impossibility defense to tenant rent obligations under government shutdown orders while one abates rent under the wording of the force majeure clause

/ Leaseholds

When Governor Cuomo ordered most businesses to stop serving the public during the COVID-19 pandemic, some could not generate the income needed to pay rent. Some have argued that the impossibility of earning profits to pay rents should constitute a defense to the contractual obligation to pay rent. Two courts in New York have now rejected that argument, including the federal Southern District and a state supreme court. In Backal Hospitality Group LLC v. 627 West 42nd Retail LLC (N.Y. Sup. Ct. 2020), the court noted that a lease term provided that if “the fixed rent [shall] become uncollectable by virtue of any law, governmental order or regulation, or direction of any public officer or body, Tenant shall enter into such agreement … as Landlord may request,…to permit Landlord to collect [rent].” Because this clause provided for negotiated settlement if a government order made rent “uncollectable,” the parties had bargained for a …

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Loan modification agreements unenforceable unless in writing

/ Mortgages, Statute of Frauds, Title Issues

An appellate court in California has held that the state’s statute of frauds require loan modification agreements to be in writing to be enforceable. Reeder v. Specialized Loan Serv., LLC, 2020 WL 4345001 (Cal. Ct. App. 2020). This is an expected application of the statute of frauds but it does not mean that some courts, in other factual settings, might make exceptions if the lender engaged in fraud (made a false statement that induces reliance on the part of the borrower), or estoppel (a lender statement that the borrower reasonably relies on in changing their behavior), or that there might be a consumer protection claim for deceptive business practices if something short of fraud but nonetheless deceptive communications wind up hurting the borrower.

Trees planted along border held to constitute a spite fence

/ Nuisance

The neighbors in the case of Game Place, Tranfield v. Arcuni-English, 215 A.3d 222 (Me. 2019), never got along with each other and quarreled when one owner cut dead limbs on his property to open up a view over the neighbor’s land. The neighbor threatened to erect a high fence to block the view, but instead hired a landscaper who installed 24 trees along the boundary line that were eight to twelve feet tall. The court interpreted a Maine statute that provides that “Any fence or other structure in the nature of a fence, unnecessarily exceeding 6 feet in height, maliciously kept and maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance.” Me. Rev. Stat. §2801, and found the plantings to constitute a spite fence since they were more dense than needed to provide privacy and would not have been planted …

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A third case granting a wedding provider a free speech exemption from an antidiscrimination law

/ Antidiscrimination Law, Religious Freedom, Sexual Orientation

For the third time, a court has held that a public accommodations law cannot be enforced against a service provider who objects, for religious reasons, to same sex marriage. Chelsey Nelson Photography, LLC v. Louisville/Jefferson County Metro Gov’t, 2020 U.S. Dist. LEXIS 146246 (W.D. Ky. 2020). The other two times were: Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019); Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019). Cases going the other way and finding it constitutional to enforce public accommodations laws to service providers who oppose same-sex marriage include: Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013)’ State v. Arlene’s Flowers, Inc., 441 P.3d 1203 (Wash. 2019). The judge in the Chelsey Nelson case found a free speech violation because “photography is art,” “art is speech,” and the “government can’t compel speech when it violates the speaker’s religious or political principles.” In …

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Adverse possession available against city when land was not being used for a public purpose

/ Adverse Possession

The Pennsylvania Supreme Court has joined the modern movement to allow adverse possession claims against cities when the city’s land being occupied was not being devoted to a public purpose during the period was it was occupied by the adverse possessor. City of Philadephia v. Galdo, 217 A.3d 811 (Pa. 2019). The court noted that “it is well-established that a claim of title by adverse possession does not lie against Commonwealth property.” It explained: “The basis for this rule of immunity emanates from the doctrine nullum tempus occurrit regi, meaning “[t]ime does not run against the king,” which has its roots in the prerogative of the Crown.” But this doctrine does not extend to subdivisions of the Commonwealth like counties or municipal governments when land is not being used for a public purpose. Galdo holds that leaving land vacant for potential future use does not count as such a public purpose for adverse possession …

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No regulatory taking despite temporary flooding since the government’s action avoided more harm than it caused

/ Takings

In Alford v. United States, 961 F.3d 1380 (Fed. Cir. 2020), owners complained that the Army Corps of Engineers took their properties by temporarily flooding a nearby lake, knowing it would damage the plaintiffs’ property but doing so to avoid even greater damage to their property from a breach of the levee that was almost certain to occur if the Corps had not acted and which would have resulted in the complete destruction of plaintiffs’ properties. The Federal Circuit applied the “relative benefits” doctrine and reversed the Claims Court’s finding of a regulatory taking. It found that the plaintiffs’ properties “would have been far worse off and suffered more serious damage if the government had not acted” and, for that reason, the government’s action protected, rather than took, property.

Both sexual orientation and gender identity discrimination are forms of sex discrimination

/ Antidiscrimination Law, Gender Identity, Religious Freedom, Sexual Orientation

Although decided under Title VII (employment discrimination) rather than the Fair Housing Act, the Supreme Court’s 5-4 ruling in Bostock v. Clayton County, 140 S.Ct. 1731 (2020) that both sexual orientation and gender identity discrimination are forms of sex discrimination is quite likely to be extended to the housing context. Justice Gorsuch’s majority opinion focused on a textual reading of the statute and the so-called comparative or but for theory to the effect that an employer who fires a man for being attracted to other men but would not do so if he were a woman has necessarily discriminated against that men just because of his sex. It does not matter if his motives were related to his views of homosexuality or same-sex marriage or religion or anything else. While this argument is likely to extend to claims under the Fair Housing Act, 42 USC §3601 et seq., it will not …

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Bird feeding can be a nuisance

/ Nuisance

In a somewhat surprising but ultimately understandable case, the Montana Supreme Court held that bird feeding could constitute a nuisance that causes substantial and unreasonable harm to a neighboring owner. Simpkins v. Speck, 443 P.3d 428 (Mont. 2019). In this case, the defendant planted trees and shrubs designed to attract birds and hung multiple bird feeders and also seeded the ground. The birds often congregated on a power line running along the boundary with the plaintiff’s land as well as trees on plaintiff’s property. “Plaintiffs regularly found bird excrement on their property and on vehicles parked in their driveway, endured bird calls from dawn to dusk, and discovered feathers, dismembered birds, and bird carcasses in their yard.” While defendant tried to avoid or mitigate the harm by putting the bird feeders in the center of her land, this was not sufficient to avoid the harms. The Montana Supreme Court affirmed the trial …

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Fracking may be a trespass if it involves physical intrusion on land owned by others

/ Nuisance, Trespass

The Pennsylvania Supreme Court reaffirmed the rule of capture that allows an owner to withdraw oil and gas from beneath its property even if doing so draws oil and gas from beneath the land of others. The question was whether fracking is any different. In Briggs v. Southwestern Energy Production Co., 224 A.3d 334 (Pa. 2020), the court held that these rules do not change when an owner uses fracking techniques which pump large quantities of fluids (water and chemical additives) into an underground rock formation, even though the resulting fractures that are opened up may extend several hundred feet away — including under the land of a neighbor. But fracking may well constitute a trespass if the fluids injected beneath one’s land enter neighboring land beneath the surface. Some courts in the past have held that blasting activity on one’s own land that results in cracks in the surface of …

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Neighbor across the street denied standing to challenge a zoning variance

/ Zoning

The Supreme Judicial Court of the Commonwealth of Massachusetts has set a very high bar to obtain standing to object to a building permit. In Murchison v. Zoning Board of Appeals of Sherborn, 2020 WL 4012766 (Mass. 2020), owners across the street from an irregularly shaped lot objected to granting the owner a permit to build on it. The court found no harm that would justify granting the neighbors the right to challenge the zoning decision, holding that they were not “aggrieved” by the decision as required by state law. The court rejected the contention that construction would make the neighborhood overcrowded, increase traffic, noise, and interfere with light, or diminish property values. The court specifically stated that “diminution in value itself is not an interest protected under” the zoning law. This view is an outlier and not shared by most courts interpreting zoning acts.

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