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

/ 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 […]

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

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

/ 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.

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

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

/ 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)

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

Marketable title act extinguishes easement by necessity

/ 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

Marketable title act extinguishes easement by necessity Read More »

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

/ 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

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

Owners cannot create easements in their own parcels

/ 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

Owners cannot create easements in their own parcels Read More »

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

/ 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

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

Loan servicer liable for negligent handling of loan modification negotiations

/ Mortgages, Real Estate Transactions

A California court has found a mortgage loan servicer to be liable for negligence in its handling of an application for a loan modification. Weimer v. Nationstar Mortgage, LLC, 260 Cal. Rptr.3d 712 (Ct. App. 2020. The court found loan servicers to be in a “special relationship” with the borrower and thus within an exception to the general rule of no tort duty for economic losses. After defaulting on a mortgage, the mortgagor entered into a loan modification process with Bank of America, and was told that he had been approved for a loan modification. Because of that approval, he made a downpayment of $50,000 to obtain the loan modification. The bank had promised him that once it received the downpayment, it would halt foreclosure proceedings. The bank transferred the loan servicing rights and obligations to Specialized Loan Servicing (SLS) which initially refused to honor the terms of the loan modification

Loan servicer liable for negligent handling of loan modification negotiations Read More »

Virginia prohibits sexual orientation and gender identity discrimination in housing and public accommodations

/ Antidiscrimination Law, Fair Housing Act, Sexual Orientation

By passage of the Virginia Values Act, Virginia joins 22 other states and the District of Columbia in prohibiting discrimination on the basis of sexual orientation and gender identity in public accommodations and housing (as well as employment). Va. Stat. §2.2-3904 and §36–96.3 (as amended by 2020 Va. H.B. 1663 (Feb. 27, 2020)).

Virginia prohibits sexual orientation and gender identity discrimination in housing and public accommodations Read More »

Scroll to Top