“Condition” language creates executory interest, but new executory interests banned unless held by public or charitable entities

/ Estates and Future Interests

n White v. Auger,2019 N.H. LEXIS 4 (N.H. 2019), the grantor conveyed property to a grantee “on condition that” the grantee build on it (or on adjacent land) and live there (within 10 years) created a fee simple subject to executory limitation. State statutes abolished possibilities of reverter, rights of entry, and executory limitations unless the grantee is a public or charitable organization but that law did not apply retroactively. N.H. Rev. Stat. 477:3-b. Older future interests could continue if they were re-recorded as required by the statute.

“Condition” language creates executory interest, but new executory interests banned unless held by public or charitable entities Read More »

Easement by necessity extinguished by marketable title act

/ Easements, Servitudes, Title Issues

Vermont’s marketable title act, Vt. Stat. tit. 27, §604(a), allows preservation of claims established more than forty years ago if they are re-recorded but does not require easements to be re-recorded if they are visible or evidenced by a “recorded agreement.” In Gray v. Treder, 2018 VT 137, 2018 Vt. LEXIS 237 (Vt. 2018), the Vermont Supreme Court held that easements by necessity fit into neither of those categories and thus need to be re-recorded every forty years to preserve them. While the case resulted in a landlocked parcel, the Court found the statutory policies of clearing title to be more important than ensuring access to a landlocked parcel.

Easement by necessity extinguished by marketable title act Read More »

New York landmarks commission approves electrifying historic clock and denying public access to the clock tower

/ Historic Preservation Law

In Save America’s Clocks, Inc. v. City of New York, 2019 WL 1385906 (N.Y. 2019), the New York Court of Appeals overturned lower court rulings that invalidated a decision of the local historic landmarks commission to allow changes to a clock that had been designated a historic landmark both as part of an historic buliding and in its own right. The buyer of the building proposed to privatize the room on the interior of the building and deny public access to the back of the clock while converting the mechanical clock to be powered by electricity while preserving the mechanical structures. The commission allowed the changes because the exterior face of the clock would remain unchanged. The trial court and the Appellate Division ruled this decision to be irrational but the high court reversed those decisions, finding them to be within the statutory authority granted the commission.

New York landmarks commission approves electrifying historic clock and denying public access to the clock tower Read More »

Discovery rule tolls statute of limitations for enforcing a right of first refusal

/ Estates and Future Interests, Real Estate Transactions, Restraints on Alienation

The Texas Supreme Court held that the owner of a right of first refusal was not too late in asserting it because the statute of limitations did not start running until the owner knew or reasonably could have known that the right had been triggered. Carl M. Archer Trust No. Three v. Tregallas,566 S.W.3d 281 (Tex. 2018). The sellers of a surface estate granted the buyer a right of first refusal to purchase the mineral estate within 60 days after being given notice of an intent to sell those rights. The right of first refusal was recorded. Without giving such notice, the owner of the mineral estate sold that estate to a third party in 2007. Four years later (and outside the statute of limitations), the owner of the right of first refusal found out about the conveyance of the mineral estate and immediately sued to nullify it. The statute of

Discovery rule tolls statute of limitations for enforcing a right of first refusal Read More »

Landlords in Virginia have no duty to maintain in a safe condition premises under the tenant’s exclusive control

/ Leaseholds

Most states find landlords liable to tenants injured in leased premises if the landlord acted negligently. That rule impose a duty on the landlord to act reasonably to avoid dangerous conditions in the premises that are leased. State housing codes and the implied warranty of habitability also place duties of repair and maintenance on landlords whose breach can result in tort liability to the tenant if the landlord acted unreasonably and cause an unreasonable risk of harm. The Virginia Supreme Court however, held that state statutes that impose maintenance obligations on landlords did not intend to alter the common law immunity landlords previously enjoyed from negligence claims by tenants. Isbell v. Commercial Inv. Assocs., Inc., 644 S.E.2d 72 (Va. 2007). In contrast, innkeepers do have such duties since they have greater access to and control over the premises.

Landlords in Virginia have no duty to maintain in a safe condition premises under the tenant’s exclusive control Read More »

Websites held to be public accommodations under the Americans with Disabilities Act and must be made accessible through screen reading technology

/ Antidiscrimination Law

The Ninth Circuit held that websites are public accommodations within the meaning of the Americans with Disabilities Act, 42 U.S.C. §12101, (and the California Unruh Civil Rights Act, Cal. Civ. Code §51) and must be made accessible to blind persons through screen reading technology. Robles v. Domino’s Pizza, LLC , 913 F.3d 898 (9th Cir. 2019), cert. denied, 140 S.Ct. 122 (2019).

Websites held to be public accommodations under the Americans with Disabilities Act and must be made accessible through screen reading technology Read More »

Bed & breakfast owner held to have no religious freedom right to refuse to provide lodging to a lesbian couple protected by state public accommodations law

/ Antidiscrimination Law, Religious Freedom

In a case decided several months before the Supreme Court’s ruling in Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rights Comm’n, 138 S.Ct. 1719 (2018), the Hawaiʻi Supreme Court held that there is no constitutional right to an exemption from a public accommodation law that prohibits discrimination on the basis of sexual orientation, even if the accommodation is a small bed and breakfast business. Cervelli v. Aloha Bed & Breakfast,415 P.3d 919 (Haw. Ct. App. 2018). Nor did the law violate the owner’s rights to privacy or intimate association.

Bed & breakfast owner held to have no religious freedom right to refuse to provide lodging to a lesbian couple protected by state public accommodations law Read More »

9th Circuit holds that the Constitution prohibits punishing homeless people for sleeping outdoors when there is no alternative

/ Homelessness, Trespass

The Eighth Amendment’s prohibition on cruel and unusual punishment prevents a city from imposing criminal penalties on homeless persons when they have no legal alternative alternative. Martin v. City of Boise, 2019 U.S. App. LEXIS 9453 (9th Cir. 2019). The City of Boise had two municipal ordinances – disorderly conduct and anticamping laws – that prohibited sleeping in parks. After being convicted for violating those laws, homeless persons challenged them because there were not enough shelter beds for everyone and they had no other place to sleep. The city police responded by issue a “Special Order” prohibiting enforcement of either ordinance when none of the three existing shelters had “an available overnight space.” However, the court found evidence that the police enforced the ordinances when shelter space was unavailable. Citing Robinson v. California, 370 U.S. 660 (1962), Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006), Pottinger v.

9th Circuit holds that the Constitution prohibits punishing homeless people for sleeping outdoors when there is no alternative Read More »

Condominium’s policy of segregating pool hours by gender violates fair housing laws

/ Antidiscrimination Law, Condominiums and Homeowners Associations, Fair Housing Act

The Third Circuit held that a condo association that adopted sex-segregated pool hours to accommodate its Orthodox Jewish residents in an “over-55” age-restricted condominum violated the Fair Housing Act both by denying access to the common area based on sex and by giving women only 3.5 hours to swim on weeknights compared to 16.5 hours given to men. Curto v. Country Place Condominium Ass’n, 921 F.3d 405 (3d Cir. 2019). It did not matter that the motive was benign; what mattered was the denial of access to common areas on the basis of sex on unequal “terms, conditions, or privileges of sale or rental of a dwelling,” 42 U.S.C. §3604(b). The Court did not reach the question of whether sex-segregated hours might be lawful if equal time was provided to men and women but a concurring Judge Julio Fuentes did, arguing that any limit on access would be discriminatory.

Condominium’s policy of segregating pool hours by gender violates fair housing laws Read More »

To avoid engaging in discrimination, Facebook changes its policy that had allowed advertisers for housing, employment, and credit to select which users could see their ads

/ Antidiscrimination Law, Fair Housing Act, Leaseholds, Mortgages, Real Estate Transactions

Responding to a lawsuit filed by the National Fair Housing Alliance and others that alleged discrimination against families with children, women, persons with disabilities, and on the basis of national origin, Facebook announced changes in its policies to avoid engaging in discriminatory advertisements. Brakkton Booker, After Lawsuits, Facebook Announces Changes to Alleged Discriminatory Ad Targeting, Mar. 19, 2019. See also Tracy Jan & Elizabeth Dwoskin, HUD is reviewing Twitter’s and Google’s ad practices as part of housing discrimination probe, Wash. Post, Mar. 28, 2019.

To avoid engaging in discrimination, Facebook changes its policy that had allowed advertisers for housing, employment, and credit to select which users could see their ads Read More »

Scroll to Top