The Supreme Court of Washington held that restraints on eviction that were temporary during the pandemic and designed to protect human life were not regulatory takings of property. Gonzales v. Inslee, 535 P.3d 864 (Wash. 2023).
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).
The North Carolina Supreme Court held that a landlord cannot be held liable for negligence in failing to correct a dangerous condition if the tenant has not told the landlord about it so that the landlord had the chance to fix it before it caused harm. Terry v. Pub. Serv. Co. of N.C., Inc., 898 S.E.2d 648 (N.C. 2024).
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 …
Interpreting estates in land: presumption against forfeitures or grantor’s intent Read More »
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).
The Rhode Island Supreme Court held that a mortgage of an interest by a joint tenant does not sever the joint tenancy and end the right of survivorship. Bank of N.Y. Mellon v. Gosset, 307 A.3d 861 (R.I. 2024). Some other states hold to the contrary.
We see continued disagreement among the states on the question of whether short-term rentals violate residential use restrictions in covenants or zoning law. Some courts say that short-term rentals are consistent with residential or single-family use restrictions. See, e.g., Pandharipande v. FSD Corp., 679 S.W.3d 610 (Tenn. 2023); Lake Serene Prop. Owners Ass’n Inc. v. Esplin, 334 So.3d 1139 (Miss. 2022); Wilson v. Maynard, 961 N.W.2d 596, 2021 SD 37 (S.D. 2021). But other courts deem short-term rentals to be a trade or business and presumptively not a residential use. See, e.g., Morgan v. Townsend, 302 A.3d 30, 2023 ME 62 (Me. 2023). See also Dixon v. City of Auburn, 2023 WL 7096600 (Ala. 2023) (short-term rentals are inconsistent with zoning limitation to single-family detached dwelling units”).
The Tennessee Supreme Court affirmed the traditional rule that covenants should be seen as encumbrances on the land and strictly construed in a narrow manner so that free use of land is not unduly limited. Phillips v. Hatfield, 624 S.W.3d 464 (Tenn. 2021). This is inconsistent with the more modern method adopted by an increasing number of courts that interpret covenants by focusing on the grantor’s intent.
The Arizona Supreme Court has held that a general amendment power in a declaration does not give a homeowners’ association power to amend covenants retroactively in major ways that would violate the reasonable expectations of buyers. Kalway v. Calabria Ranch HOA, LLC, 506 P.3d 18 (Ariz. 2022). The covenants that were thought to be unfairly surprising limited the size and use of dwellings, prohibited improvements without consent of the association, changed the types and quantity of permissible livestock, limited the height and size of non-dwelling structures, and other limitations on improvements. The court noted that Arizona statutes permit amendment of covenants by the association, but held that the statute did not displace the common law rule that requires the declaration to give buyers sufficient notice of the types of amendments that are permitted.
The Alabama Supreme Court has affirmed the traditional rule that covenants remain in effect even if some owners have violated them or exceptions have been made. They only cease to be enforceable under the changed conditions doctrine when they have “ceased to have any beneficial or substantial value to the … property.” Cole v. Davis, 2023 WL 2620610 (Ala. 2023).
