Permanent rights of refusal for tenancy in common interests owned by family members held void as unreasonable restraints on alienation

/ Concurrent or Common Ownership, Estates and Future Interests, Restraints on Alienation

A Massachusetts court has held that permanent rights of refusal applying to tenancy-in-common interests were void as unreasonable restraints on alienation. DiSchino v. Delanson Circle Holding, 2018 Mass. Super. LEXIS 67 (Mass. Super. Ct. 2018). The court noted that the state had a strong policy against unreasonably long restrictions on the alienability of land but that reasonable restraints are valid and enforceable. Rights of first refusal are not unreasonable if they are not for a fixed price or a long period. Here, however, the rights of first refusal owned by co-owners existed in perpetuity. That meant that even after an interest was transferred to another owner, it would remain subject to the right of first refusal whenever that new owner decided to sell the owner’s interest. The permanency of the restraint on alienation (it would effectively last forever) doomed it. In contrast, a restraint on partition of tenancy-in-common interests might […]

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Forged deeds cannot convey title

/ Consumer Protection, Estates and Future Interests, Real Estate Transactions, Title Issues

In a case involving a claim for a prescriptive easement, the Massachusetts Land Court has affirmed an old rule of law that denies a forged deed any validity whatsoever. Braxton v. City of Boston, 26 LCR 119, 2018 Mass. LCR LEXIS 30 (Mass. Land Ct. 2018). The court also noted that it was a crime to write and record a forged deed.

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Reduction in property value held not sufficient to give an abutting neighbor standing to challenge a zoning decision to allow a group home for veterans to be created

/ Zoning

Massachusetts law allows abutters to challenge zoning permit decisions only if they can show that they are affected by those decisions. In Walsh v. Town of Dennis Planning Bd.,26 LCR 89, 2018 Mass. LCR LEXIS 24 (Mass. Land Ct. 2018), the court clarified that the abutter needs to show harm to use of enjoyment of land and that a mere claimed reduction in fair market value is not sufficient to grant standing to challenge a zoning decision granting a special permit. The court’s ruling was based on an interpretation of the town’s by-law, suggesting that the result might be different if municipal or state law provided otherwise.

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Tree may be removed by owner of property where it first grew even if it grew to encroach on neighboring land and the neighboring owner does not want it removed

/ Adverse Possession, Concurrent or Common Ownership, Easements, Trespass

The Colorado Supreme Court has held that an owner may remove a tree on her own land even if it has grown over the borderline onto neighboring land even if the neighboring owner objects to removal of the tree. Love v. Klosky,2018 CO 20, 413 P.3d 1267 (Colo. 2018). In contrast, a border tree that was planted on the border itself becomes the joint property of both neighbors and cannot be removed with the consent of both of them.

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Lease cannot transfer landlord’s right to receive rents to his daughter after his death because it is a testamentary transfer that does not comply with the formalities needed to create a will

/ Leaseholds, Wills and Inheritance

The MIssissippi Supreme Court held that a lease provision cannot transfer the landlord’s power to receive rents to his daughter after his death because that effectuates a testamentary transfer that must comply with the statute of wills to be valid, including all formalities such as two witnesses. Estate of Greer v. Ball, 218 So. 3d 1136 (Miss. 2017).

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Commercial landlord can mitigate damages by selling the property rather than reletting it

/ Leaseholds

When the tenant breached the lease, the landlord had a duty to mitigate damages. That usually means making reasonable efforts to find a replacement tenant. However, the Nebraska Supreme Court has held that a commerical landlord fulfilled the duty to mitigate damages by seeking to sell the property rather than re-rent it. Hand Cut Steaks Acquisitions, Inc. v. Lone Star Steakhouse & Saloon of Nebraska, Inc., 905 N.W.2d 644 (Neb. 2018). The landlord’s rejection of offers to rent the property did not violate his duty to mitigate damages given his reasonable efforts to sell the property. That meant the old tenant was liable for the rents up until the property was sold.

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Is it an unconstitutional taking of property without just compensation to require sex offenders to move away from their home if a school, playground, or daycare center is established near their home after their initial occupation?

/ Consumer Protection, Estates and Future Interests, Homelessness, Takings

In Mann v. Georgia Department of Corrections,653 S.E.2d 740 (Ga. 2007), the Georgia Supreme Court held that a state statute prohibiting registered sex offenders from living or working within 1,000 feet of any facility where minors congregate, see Ga. Code Åò42-1-15, constituted a taking of property as applied to a sex offender who was forced to move after a child care center opened a facility within 1,000 feet of his home. The court noted that “it is apparent that there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected.” 653 S.E.2d at 755. Moreover, the effect of the statute “is to mandate appellant’s immediate physical removal from his . . . residence.” The court noted “the strong governmental interests that are advanced by the residency restriction” on sex offenders, but also found that the law effectively allowed “private third parties”

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Religious exemption to public accommodation laws rejected by Supreme Court while those laws cannot be administered in a way that demonstrates hostility to religion or that unfairly discriminates among religious beliefs

/ Antidiscrimination Law, Consumer Protection, Free Speech, Legal Theory, Religious Freedom, Sexual Orientation

This blog entry has a long title because the Supreme Court’s ruling in Masterpiece Cakeshop, Ltd., v. Colo. Civil Rights Comm’n, 2018 U.S. LEXIS 3386, 2018 WL 2465172 (U.S. 2018) is complicated and cannot be summarized quickly. While the baker won the case (the Supreme Court reversed the state court order to him to pay civil rights damages to the plaintiff couple for refusing to sell them a “wedding cake”), he won it on such narrow grounds that the decision is likely to wind up supporting the power to states to enforce civil rights law without regard to the religious objections of business owners. The Supreme Court ruled in favor of the baker on narrow grounds in a 7-2 decision with four judges concurring. The two dissenting judges were Ginsburg and Sotomayor. Three concurring opinions were written by Kagan (joined by Breyer) and Gorsuch (joined by Alito) and Thomas (joined by Gorsuch).

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Can an owner or inhabitant of real property give police the right to search property when a co-owner or coinhabitant objects?

/ Concurrent or Common Ownership, Estates and Future Interests, Fourth Amendment, Leaseholds, Marital Property, Trespass

The Appeals Court of Massachusetts held that the police could search a closed suitcase in a common closet of a bedroom when given permission to do so by the defendant’s coinhabitant. Commonwealth v. Hernandez,93 Mass. App. Ct. 172, 2018 Mass. App. LEXIS 48 (Mass. App. Ct. 2018). This ruling was based on traditional rules of property law that give tenants in common rights of access to the property they both own. The court noted that any coinhabitant had the right to consent to a search of her home, her bedroom, and her closet because these were areas where both inhabitants shared joint access or control. The Supreme Court reached the opposite conclusion in the case of Georgia v. Randolph,547 U.S. 103 (2006) when it held that the police could not enter property owned by a married couple when one (but not the other) objected to entry. The Massachusetts case is consistent with

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Landlord’s failure to comply with security deposit regulations may be defense to eviction

/ Consumer Protection, Leaseholds

A Massachusetts court, in the case of Duff v. Pouliot,2018 Mass. App. Div. 42, 2018 Mass. App. Div. LEXIS 10 (Mass. Dist. Ct. App. Div. 2018), has reaffirmed and applied a state supreme court precedent, Meikle v. Nurse,49 N.E.3d 210 (Mass. 2016), holding that a landlord’s violation of the state security deposit statute may constitute a defense to a claim for possession and thus protect the tenant from eviction.

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