Fifth Circuit rules that landlord rejection of Section 8 housing voucher recipients does not violate the Fair Housing Act by imposing a disparate impact on the basis of race

/ Antidiscrimination Law, Fair Housing Act, Leaseholds

Persons in need of financial assistance to afford housing are in a variety of categories of persons protected by the Fair Housing Act. African Americans are more likely than white persons to be poor; women of all races are more likely to be poor than men; persons with disabilities are more likely to need government assistance than those who are temporarily abled; and children are much more likely to be poor than adults. It would seem easy to show that refusing to rent to persons who are eligible for and who receive housing vouchers from the federal government (so-called Section 8 certificates) causes a disparate impact based on race, disability, sex, and familial status that may be unlawful under the Fair Housing Act unless the impact can be justified by a sufficient strong business objective that cannot be achieved in a less discriminatory way. However, the 5th Circuit rejected a […]

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Shooting range may be a nuisance unless state statutes say otherwise

/ Nuisance

Construing a state statute, the Supreme Court of Appeals of West Virginia held that a shooting range cannot constitute a nuisance if it complies with local noise ordinances. However, that statute could not be applied retroactively without violating vested property rights so the plaintiffs in the case were entitled to damages but not injunctive relief. Goldstein v. Peacemaker Props., LLC, 2019 W. Va. LEXIS 102 (W.Va. 2019).

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No right to jury trial in regulatory takings case

/ Takings

A Massachusetts court held that a landowner was not entitled to have a jury determine whether a wetlands protection bylaw constituted a regulatory taking. Smyth v. Conservation Comm’n of Falmouth, 119 N.E.3d 1188 (Mass App. Ct. 2019). The owner who inherited an unimproved lot from her parents (who paid $49,000 for it in 1975) was denied a building permit since her plans violated the town wetlands protection bylaw. The owner presented evidence at trial that the lot had a fair market value of $700,000 if buildable but only $60,000 if not buildable. The jury found that a regulatory taking had occurred and awarded $640,000 in damages. The Appeals Court reversed, holding that the state constitution did not guarantee a jury right for this type of claim and that the regulatory takings question was a matter of law to be decided by the judge. The court found no regulatory taking since the land

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Eighth Amendment’s Excessive Fines Clause applies to the states

/ Due Process, Takings

The Supreme Court held in Timbs v. Indiana, 2019 WL 691578 (2019) that the Eighth Amendment’s Excessive Fines Clause applies to the states by incorporation into the due process clause of the fourteenth amendment. Tyson Timbs had pled guilty to drug crimes that had a maximum fine of $10,000 but the police had seized his car in a civil forfeiture even though the car was worth $42,000 or more than four times the maximum fine for the crime. The trial court had found the forfeiture to be unconstitutional because it was so grossly disproportionate to the gravity of his offense. While that ruling was upheld by the appeals court, it was overruled by the Indiana Supreme Court on the ground that the Excessive Fines Clause did not apply to the states. That opinion was reversed by the United States Supreme Court and the case remanded for proceedings consistent with it which will

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Restrictive covenant held not to be “property” compensable under the takings clause

/ Servitudes, Takings

A town bought a parcel of land subject to a restrictive covenant in order to build a municipal water storage tank contrary to a restrictive covenant prohibiting such construction. The town sued for a declaratory judgment that it could violate the covenant without paying just compensation under the fourteenth amendment’s takings clause. Relying on an earlier case decided by the Colorado Supreme Court, Smith v. Clifton Sanitation District, 300 P.2d 548 (Colo. 1956), the Colorado Court of Appeals held that covenants are not compensable property rights under the fourteenth amendment. Town of Monument v. State,2018 WL 4781388, 2018 Colo. App. LEXIS 1396 (Colo. Ct. App. 2018). The court argued (1) that having to compensate every owner who land value may be affected by the government’s violating a covenant would make use of the eminent domain power too difficult; (2) owners should not be able to contract to make taking property by

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Short term rental use held not to violate covenant prohibiting “commercial activity”

/ Condominiums and Homeowners Associations, Real Estate Transactions, Servitudes

The courts continue to split on this question with the majority holding use of property for short-term rental (such as vacation rental or Airbnb use) is a residential rather than a commercial use. The Wisconsin Supreme Court has joined the courts that have found short-term home rentals to be consistent with a covenant prohibiting “commercial activity.” Forshee v. Neuschwander, 914 N.W.2d 643 (Wis. 2018). The court noted that “[p]ublic policy of the State of Wisconsin favors the free and unrestricted use of property…Accordingly, restrictions contained in deeds and in zoning ordinances must be strictly construed to favor unencumbered and free use of property. Consequently, in order to be enforceable, deed restrictions that limit the free use of property must be expressed in clear, unambiguous, and peremptory terms.”

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Delaware creates mechanism to strike unlawful discriminatory covenants from recorded instruments

/ Antidiscrimination Law, Real Estate Transactions, Title Issues

Delaware has passed a statute creating procedures to excise discriminatory or otherwise unlawful covenants in recorded deeds. The stricken portions in the chain of title are deleted and can only be revealed by the recording office in response to a subpoena. Del. Code tit. 9, §§9605, 9628 (81 Del. Laws 409).

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