Police damage to house not compensable under the takings clause

/ Takings, Trespass

In an upsetting but not surprising decision, the Sixth Circuit has held that damage to property caused by police in the course of their duties, including finding and apprehending those who committed or are suspected of having committed a crime, is not compensable as a “taking” of property within the meaning of the Takings Clause of the US Constitution. Slaybaugh v. Rutherford Cnty., 2024 WL 4020769 (6th Cir. 2024). In this case, a mother and son were in her house and she could not convince him to give himself up to the police. She exited the home and they fired 35 tear gas cannisters into the home, causing $70,000 of damage to the house and the contents inside. The insurance company would not cover the loss because it was “self-inflicted” and the owner’s suit against the city failed because the longstanding rule is that the police cannot be hampered in …

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Promise to make a gift at death enforceable if relied on by continued cohabitation

/ Estates and Future Interests, Marital Property, Trusts, Wills and Inheritance

The New Hampshire Supreme Court has held that a promise to give a gift at death if she continued to live with him until his death is enforceable even though it does not satisfy the state statute of wills if the promisor receives consideration for the promise, and continued cohabitation after the promise suffices. Tremblay v. Bald, 2024 WL 332101 (N.H. 2024). The contract was enforceable even though the decedent died intestate and could have, but did not, convert the written promise into a formal will.

Violation of fair housing statute is a defense to eviction

/ Antidiscrimination Law, Leaseholds

The Colorado Supreme Court has held that a landlord who has violated fair housing laws may be disabled from evicted the tenant who was the victim of that discrimination. Miller v. Amos, 543 P.3d 393 (Colo. 2024). The court reasoned that the statutory rights to be free from discrimination not only provide claims but can operate as a valid defense to an assertion of property rights. In this case, the landlord repeatedly demanded that the tenant have sex with him. When she refused, he sued to evict her. In that eviction action, she raised the state fair housing statute as a defense (sexual harassment constitutes sex discrimination), and the state supreme court agreed that the state fair housing law could be used as a defense when the the lease was an oral one that otherwise could be terminated for any reason.

Property tax assessments can violate Fair Housing Act if disproportionately high in communities of color

/ Antidiscrimination Law

The New York Court of Appeals has held that a municipal tax assessment practice may violate the federal Fair Housing Act, 42 U.S.C. §3601 et seq.. if assessments are higher without justification in areas of the city disproportionately inhabited by non-white residents. Tax Equity Now N.Y., LLC v. City of New York, 2024 WL 1160498 (N.Y. 2024). The court also held that these practices may perpetuate segregation. Both the disparate impact because of race and ethnicity and the perpetuation of segregation constitute prima facie claims of disparate impact discrimination under federal regulations. As a factual matter, the trial court found that similar properties in comparable neighborhoods were being assessed at extremely different rates.

Tribe is awarded $400 million in trespass damages against a railroad company that exceeded the scope of an express easement

/ Trespass, Tribal Property

A federal court in Washington has awarded damages of $400 million to The Swinomish Indian Tribal Community to be paid by a railroad company (BNSF Railway Company) for knowingly exceeding the scope of a railroad easement on the tribe’s property. Swinomish Indian Tribal Cmty. v. BNSF Rwy. Co., 2024 WL 3027911, 2024 US. Dist. LEXIS 107314 (W.D. Wash. 2024). Federal common law governs a claim for trespass on Indian lands. The railroad company breached its easement agreement by unilaterally increasing the number of trains and the number of cars crossing tribal land without the tribe’s written consent. The court had found that the railroad company breached a right-of-way easement agreement with the tribe, and that the trespass was “willful, conscious, and knowing throughout the trespass period.” Swinomish Indian Tribal Cmty. v. BNSF Rwy. Co., 664 F.Supp.3d 1218 (W.D. Wash. 2023). In the remedies phase, the court held that disgorgement of …

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Denial of right to build a per se taking

/ Takings

The Nevada Supreme Court held that denial of a building permit was a categorical taking when the city did not provide the owner with any viable alternative ways to develop the land. City of Law Vegas v. 180 Land Co., LLC, 546 P.3d 1239 (Nev. 2024).

Interpreting estates in land: presumption against forfeitures or grantor’s intent

/ Estates and Future Interests

Traditionally, courts adopt a “presumption against forfeitures” so that an ambiguous conveyance will not be interpreted to create a future interest. Many courts still retain this interpretive presumption which is not focused on the probably intent of the grantor but on the public policy goal of promoting the alienability of land and freeing current owners from forfeiture of their title. See, e.g.,  Carter Country Club, Inc. v. Carter Comty. Bldg. Ass’n, 273 A.3d 915 (N.H. 2021) (““We generally disfavor interpreting deed conditions in a manner that would cause a forfeiture of the property upon breach of such conditions.”). But see id. (“However, we adhere to the guiding principle that the intent of the parties should be effectuated whenever possible.”). But other courts focus on effectuating the grantor’s intent even if that results in a future interest and a forfeiture of the present estate in land. Bd. of Cnty. Comm’rs of …

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What happens when unmarried couples purchase property as tenants by the entirety?

/ Concurrent or Common Ownership

Only married couples can own property as tenants by the entirety so what happens if an unmarried couple buys property with a deed that purports to convey a tenancy by the entirety interest? If we presume that the goal was to create a right of survivorship, then we should interpret it as a joint tenancy. If we adopt the general presumption in favor of tenancy in common for ambiguous conveyances, then it should be a tenancy in common. The D.C. Court of Appeals adopted the former assumption and interpreted a conveyance to a father and a son as a joint tenancy finding the entireties language sufficient to overcome the statutory preference for tenancies in common. In re Estate of Hamilton, 299 A.3d 542 (D.C. 2023).

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