Property Law Developments – Page 16

Tenants have the right to receive guests

August 18, 2020 / Leaseholds

Affirming a traditional rule of law, the D.C. Court of Appeals held that tenants have the right to receive guests even over the objections of the landlord. Odumn v. United States, 227 A.3d 1099 (D.C. 2020). Defendant was charged with criminal trespass for violating a no-trespass order by the landlord but because he was on the property at the invitation of his aunt, who was a tenant there, he was not committing a trespass since consent is a defense to trespass and the tenant had the right, as a tenant, to invite him to her apartment.

You cannot abandon real property

August 18, 2020 / Uncategorized

A helpful precedent can be found in a 1995 trial court ruling in Pennsylvania on the question of abandonment of real property. It is commonly noted that one can abandon personal property by acts that clearly show an intent to relinquish ownership. At the same time, Dean Eduardo Peñalver has shown environmental laws, among others, so heavily regulate the ability to discard personal property, that the “right to abandon” is more illusory than real. Eduardo M. Peñalver, The Illusory Right to Abandon, 109 Mich. L. Rev. 191 (2010). When we try to find out the rules about abandonment of real property, we will not find them because traditionally one is not empowered to abandon real property even if one intends to do so. That is because owners have duties as well as rights, including the duty to pay property taxes and to avoid causing a public nuisance, among others. For an example …

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Trump administration withdraws Obama era rules on “affirmatively furthering fair housing” (AFFH)

August 18, 2020 / Antidiscrimination Law, Fair Housing Act

Although the Fair Housing Act (FHA) requires any government entity managing or receiving federal funds “affirmatively to further fair housing,” (AFFH), 42 U.S.C. §3608(e)(5), enforcement of this provision has been remarkably lax since the passage of the FHA in 1968. The Obama Administration tried to change that with a new regulation that provided detailed guidance about steps local governments needed to take to determine whether they were complying with their AFFH obligations. They were required to report to HUD their efforts to comply with the obligation, including reporting on the ways their laws contributed to racial segregation. Importantly, that rule also required HUD to review those plans and approve them. Final Rule, Affirmatively Furthering Fair Housing, 80 Fed. Reg. 42,272, 42,273, 42,278 (July 16, 2015). The rule did not mandate specific outcomes but That regulation would have helped prompt local governments to determine how their local land use laws affected the availability …

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Easement by necessity may include right to lay utility lines for necessary services

August 18, 2020 / Easements, Servitudes

The Connecticut Supreme Court has held that an easement of access established by necessity, an expansion of that easement for utility lines will be allow so long as it is reasonably necessary for the beneficial enjoyment of the dominant estate and does not unreasonably impair the servient estate owner’s beneficial enjoyment of their property.

Short-term rentals consistent with covenant limiting land to “residence purposes” and prohibiting motels and hotels

August 18, 2020 / Condominiums and Homeowners Associations, Leaseholds, Servitudes

The Arkansas Supreme Court has held that short-term rentals (like Airbnb) are residential uses and are neither “commercial” uses nor “hotels.” Vera Lee Angel Revocable Trust v. Jim O’Bryant Joint Revocable Trust, 537 S.W.3d 254 (Ark. 2018)

Marketable title act extinguishes easement by necessity

August 18, 2020 / Easements, Servitudes, Title Issues

In a surprising decision, the Vermont Supreme Court held that an easement by necessity must be recorded or it will be lost by operation of the state’s marketable title act. Gray v. Treder, 2018 VT 137, 204 A.3d 1117 (Vt. 2018). The facts of the case were unusual, however, because the easement in this case was not clearly visible by physical evidence of its use. That will ordinarily not be the case because easements by necessity are required to obtain access to the land and most owners will visibly use those easements to obtain access. In this case, however, because the landlocked ninety-acre parcel had remained undeveloped for the period defined by the Marketable Title Act. The court’s ruling was based on its interpretation of the statute and because it was bound by that statutory language. In addition, the statute provided the landlocked owner a method to preserve an easement by …

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Tree that straddles the border can be removed by owner of land where it was planted

August 18, 2020 / Title Issues, Trespass

The Colorado Supreme Court held that a tree can be removed without consent of the neighbor when the tree was first planted on the owner’s land and it encroached on the neighbor’s land as it grew. Love v. Klosky, 413 P.3d 1267 (Colo. 2018)

Federal Circuit finds potential taking of property when federal statutes denied developers the right to prepay mortgages to escape limits on rent increases

May 10, 2020 / Takings

The Federal Circuit held that two federal statutes may have effected takings of property without just compensation by preventing owners from exercising contractual rights to prepay government-insured mortgages on their housing projects which would have the effect of terminating government rent restrictions designed to keep the housing affordable by low-income families. Anaheim Gardens, L.P. v. United States, 953 F.3d 1344 (Fed. Cir. 2020). The Federal Circuit distinguished between owners who purchased the properties after enacted of the statutes from those who had purchased before the statutes were enacted. The initial agreements involve promises by developers to limit rent increases in exchange for obtaining low-cost mortgages insured by HUD (Department of Housing and Urban Development). The mortgages lasted 40 years but the developer/borrower was entitled to prepay the mortgage after 20 years and be freed from the restrictions on raising the rents. The federal “preservation statutes” were passed to eliminate the prepayment option because Congress was worried …

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Owners cannot create easements in their own parcels

May 10, 2020 / Easements, Servitudes

In Fitzpatrick v. Kent, 458 P.3d 943 (Idaho 2020), an owner of of two adjacent lots recorded a grant of an appurtenant easement over the servient estate for maintenance of a pond and irrigation system to benefit the dominant lot. The Idaho Supreme Court held that this purported grant of an easement was invalid since one cannot create an easement in one’s own property. So when the owner sold the servient estate, it was not subject to the easement because the deed given to the servient estate owner did not itself reserve the easement. It also did not matter that the servient estate owner was aware of the easement and impliedly agreed to it. The opinion places formality over substance, but is based on an old property law rule whose purpose is to ensure that easements (and covenants) are created at the same moment that the owner parts company with the land …

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Hawaii Supreme Court measures deficiency judgment by reference to fair market value rather than foreclosure price

May 10, 2020 / Mortgages, Real Estate Transactions

The Hawai’i Supreme Court held that deficiency judgments should be measured by the difference between the unpaid debt and the property’s fair market value rather than by reference to the difference between the unpaid debt and the foreclosure price. HawaiiUSA Federal Credit Union v. Monalim, 2020 WL 2079890 (Haw. 2020). The court cited the Restatement (Third) of Property, Mortgages §8.4 (Am. Law Inst. 1997), and found no language in the state mortgage foreclosure act that might have required a different result. This is the modern approach and has been adopted by statute or judicial decision in the majority of states. The reasoning behind this modern approach is the mortgage statutes have an underlying policy designed to define and protect the legitimate interests of both the borrower and the lender. The lender is entitled to get back the loan with interest, as specified in the note, and the mortgage lien on the property …

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