Courts may consider extrinsic evidence to interpret ambiguous easements

/ Easements, Servitudes

A Massachusetts appellate court had the difficult tasking of deciding whether a view easement prohibited all structures or only structures over eight feel high. MacLean v. Conservation Comm’n of Nantucket,(Mass. App. Ct. 2018). The easement language created a “view easement which prohibits any and all structures and/or vegetation with a height greater than eight (8’) feet from existing grade upon and over said lot.” The court held that ” the absence of a comma after the word ‘structures’ combined with the use of the term ‘and/or’ makes it unclear whether the eight-foot height restriction applies only to vegetation or to structures as well.” Id.at 3. That ambiguity made the meaning of the language a question of fact to be determined by the trial court on remand.

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Quitclaim deed does not negate good faith for purpose of adverse possession if the occupying parties did not actually know they were on land owned by another

/ Adverse Possession, Title Issues

Georgia is one of the few states that requires “good faith” in order to acquire property by adverse possession. That means that one cannot acquire property by adverse possession if one is knowingly occupying property of another. In McBee v. Aspire at Midtown Apts., L.P. 807 S.E.2d 455 (Ga. 2017), the question arose whether an owner was precluded from asserting good faith when they signed a deed that defined the disputed parcel as belonging to a neighbor. The court held that the occupying parties was doing so in good faith despite the deed they did not know where the actual border was and did not actually know that they were occupying property belonging to another.

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Seizure of abandoned real property by municipality is not an unconstitutional taking of property

/ Nuisance, Takings

The Iowa Supreme Court held that the Constitution does not require just compensation when it seizes abandoned property pursuant to a statute giving the city title to such property. City of Eagle Grove v. Cahalan Investments, LLC, 904 N.W.2d 552 (Iowa 2017). Such property is deemed a nuisance and no owner owns the right to commit a nuisance. The court explained that the state has the “power to condition the permanent retention of…property rights on the performance of reasonable conditions that indicate a present intention to retain the interests.” In this case, by “allowing the properties to persist in a condition unfit for human habitation, allowing the premises to remain vacant, and failing to make timely and reasonable efforts to remedy the public nuisances created by the properties after notification of the problems,” the owner failed to comply with reasonable conditions established by law to retain his ownership interest. Because he did

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City has a constitutional due process obligation to notify an owner that the owner’s property has been adjudicated to be blighted and subject to condemnation

/ Due Process, Nuisance, Takings

Colorado statutes create a procedure for designating property as blighted and subject to condemnation and transfer either to public use or transfer to another owner. While the statute required notice when the city begins studying whether the property is blighted and when a public hearing is held, it did not require notice of a decision that the property is in fact blighted. The Tenth Circuit found this to violate the due process clause because the statute gives property owners a right to judicial review of the blight determination but without notice of the blight determination owners have no reasonable opportunity to seek such judicial review. M.A.K. Investment Group, LLC v. City of Glendale,889 F.3d 1173 (10th Cir. 2018).

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While real property held as tenancy by the entirety cannot be conveyed absent consent of both spouses, funds held in a bank account can be withdrawn by either spouse and, upon withdrawal, cease to be entireties property

/ Concurrent or Common Ownership, Estates and Future Interests, Marital Property, Personal Property

The Supreme Court of Tennessee overruled prior cases and adopted the Arkansas approach that allows spouses that own bank account as tenants by the entirety are free to withdraw funds unilaterally (without consent of their co-owner) and that moneys so withdraw become the individual property of the spouse that withdrew the funds. This contrasts with real property which neither spouse may convey without the consent of the other. In re Estate of Fletcher, 538 S.W.3d 444 (Tenn. 2017). It should be noted as well that Tennessee presumes that a conveyance to a married couple is held as a tenancy by the entirety unless the language provides otherwise.

While real property held as tenancy by the entirety cannot be conveyed absent consent of both spouses, funds held in a bank account can be withdrawn by either spouse and, upon withdrawal, cease to be entireties property Read More »

Landlord does not commit disability discrimination when refusing to allow a tenant to keep an aggressive dog

/ Antidiscrimination Law, Fair Housing Act, Leaseholds

The Fair Housing Act requires landlords to avoid discrimination because of disability and to reasonably accommodate the needs of tenants by changing policies or practices to enable access to housing by persons with disabilities. However, accommodation is not required if it will pose a “direct threat” to the health or safety of others. This means that a landlord with a “no pets” policy must allow a tenant to keep an assistance animal unless doing so would impose an undue financial burden on the landlord or would fundamentally alter the nature of the housing services. In this case, the court found that the tenant was not entitled to a reasonable accommodation when the dog exhibited aggressive tendencies, that some residents stayed inside because they were afraid of the dog, and that the tenant might not be able to control the dog. Gill Terrace Retirement Apts., Inc. v. Johnson,177 A.3d 1087 (Vt. 2017).

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Short term rentals (such as Airbnb) held not to violate a covenant prohibiting “commercial use” contrary to rulings of some other courts

/ Leaseholds, Servitudes

Courts disagree about whether covenants prohibiting “commercial use” of real property apply to short term rentals like Airbnb. While some courts have said that such rentals do constitute commercial use, see, others have found the use not to be commercial but residential in nature. The Arkansas Supreme Court joined the courts that find Airbnb to be a residential rather than a commercial use of property. Vera Lee Revocable Trust v. O’Bryant, 537 S.W.3d 254 (Ark. 2018). Accord, Slaby v. Mountain River Estates Residential Ass’n, Inc.,100 So. 3d 569 (Ala. Ct. Civ. App. 2012). This is an ongoing debate among courts: Some courts hold that short term rentals (such as Airbnb rentals) violate covenants that restrict the property to “residential use,” finding short-terms rentals to be closer to hotel use and thus commercial in nature. Vonderhaar v. Lakeside Place Homeowners Ass’n, 2014 WL 3887913 (Ky. Ct. App. 2014). Other courts find short term rentals to be

Short term rentals (such as Airbnb) held not to violate a covenant prohibiting “commercial use” contrary to rulings of some other courts Read More »

New York City and San Francisco vote to guarantee lawyers for some or all tenants facing eviction

/ Consumer Protection, Due Process, Leaseholds, Real Estate Transactions

New York City was the first city to guarantee lawyers to most low-income tenants facing eviction. Ashley Dejean, New York Becomes First City to Guarantee Lawyers to Tenants Facing Eviction, Mother Jones, Aug. 11, 2017.. When fully in force, the law will provide legal services to tenatns facing eviction who make below 200 percent of the federal poverty line. The program will be phased in over a five-year period.  San Francisco voters passed Proposition F on June 5, 2018 that would require the city to establish, fund, and run a program to provide legal representation for all residential tenants in San Francisco facing eviction regardless of their income. Adam Brinklow, SF voters guarantee lawyers for evicted tenants: Proposition F passes with more than 55 percent of the vote, Curbed: San Francisco, Jun. 7, 2018.

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No sex discrimination or violation of privacy rights when trans students use bathrooms corresponding to their gender identity

/ Antidiscrimination Law, Due Process, Gender Identity, Sexual Orientation

The Third Circuit entertained and rejected a claim by cisgender students (whose gender identity corresponds to the gender assigned at birth) that their constitutional rights to privacy and their statutory rights to be free from sex discrimination were violated when trans students were allowed to use bathrooms corresponding to their gender identity. Doe v. Boyertown Area School District,2018 U.S. App. LEXIS 16323 (3d Cir. 2018). The court found that cisgender students were not deprived of a right to privacy when they had to change clothes in view of transgender students because the presence of the transgender students in bathroom and locker rooms according with their gender identity furthered an important government interest in preventing sex discrimination. Further, the court found that it would constitute sex discrimination not to treat transgender students in accord with their gender identity so that allowing them to do so could not constitute sex discrimination against cisgender

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