Expectation of privacy voids government search of car in driveway without a warrant but not if parked in shared lot

/ Fourth Amendment, Trespass

The Supreme Court held that the Fourth Amendment precludes search of a car parked in the driveway to a home without a warrant in Collins v. Virginia,138 S. Ct. 1663 (U.S. 2018), while a number of other courts have held that there is no such expectation of privacy for cars parked in shared lots. United States v. Jones,2018 U.S. App. LEXIS 16409, 2018 WL 3028685 (2d Cir. 2018); State v. Dumstrey,2016 WI 3, 873 N.W.2d 502 (Wis. 2016).

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Owners must continue to pay homeowners association fees to maintain private roads even after all other covenants terminate

/ Condominiums and Homeowners Associations, Consumer Protection, Easements, Real Estate Transactions, Servitudes

A Massachusetts court has held that owners in a homeowners association that have access to shared private roads must continue to pay fees to the association to maintain those roads even after all other covenants terminate. Meadowview Heights Homeowners Ass’n, Inc. v. Chosse, 2018 Mass. App. Div. 54, 2018 Mass. App. Div. LEXIS 14 (Mass. Dist. Ct. App. Div. 2018). The court found that the assessments were not covenants subject to a termination clause but were implied obligations to share in the burden of maintaining a common benefit in the private roads that arose as an equitable servitude and implied contract.

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Court wrestles with the question of whether use of a pavement area without permission creates a prescriptive easement or adverse possession

/ Adverse Possession, Easements, Real Estate Transactions, Servitudes, Trespass

When an owner uses a driveway or pavement area owned by a neighbor, and does with openly and without permission for the statutory period, does the owner get a prescriptive easement to use the area for the specific purposes to which the property was devoted or does the owner acquire full title to the area by adverse possession? The problem arises because an owner who parks a car on a driveway that encroaches on neighboring land may be viewed as undertaking a limited use of the land (use for parking purposes) or may be viewed as acting as an owner with full control of the property being used. Often the question will turn on whether the use of the area was exclusive, i.e., whether the owner of record title was excluded from the property. If the record owner was excluded, adverse possession is likely to be awarded. If the parties

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Another federal court rules that transgender discrimination is a form of sex discrimination

/ Antidiscrimination Law, Gender Identity, Sexual Orientation

Gavin Grimm is a man who was denied the right to use the men’s restrooms in a public school in Virginia because the school classified him as a woman based on his birth designation. U.S. District Court Judge Judge Arenda l. Wright Allen held that this constituted discrimination on the basis of sex in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §1681-1688, the federal law that prohibits sex discrimination in any educational institution receiving federal funds. Grimm v. Gloucester County School Board, 2018 U.S. Dist. LEXIS 88638 (D.Va. 2018). The court applied the gender stereotyping theory of Price Waterhouse v. Hopkins, 490 U.S. 228, 235 (1989), and agreed with the First, Sixth, Ninth, and Eleventh Circuits that discrimination based on gender identity constitutes “sex” discrimination. It concluded that “”discrimination on the basis of transgender status constitutes gender stereotyping because ‘by definition, transgender persons do not conform to

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Landowner who reasonably relies on zoning administrator’s advice cannot be required to remove a noncomplying structure

/ Zoning

In re Langlois/Novicki Variance Denial, 2017 VT 76, 2017 Vt. LEXIS 96, 2017 WL 3662437 (Vt. 2o17), the Vermont Supreme Court held that an owner cannot be compelled to remove a structure that violates the zoning law when the owner built the structure on the basis of advice given by the zoning admininstrator on its legality.

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Defeasible easements are enforceable if clearly created

/ Easements, Estates and Future Interests, Servitudes

In Majestic Oaks Homeowners Ass’n v. Majestic Oaks Farms, Inc., 530 S.2d 3 435 (Ky. 2017), covenants for a residential subdivision creates easements that were subject to abolition by a supermajority vote of the homeowners. The Kentucky Supreme Court saw no reason not to allow easements to be made defeasible and upheld the power of the association to end the easements.

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Easement by necessity can be widened and its uses can be expanded

/ Easements, Servitudes

The Virginia Supreme Court held in Palmer v. R.A. Yancey Lumber Co., 803 S.E.2d 742 (Va. 2017) that an easement by necessity is not limited to uses existing at the time the easement was created by severance of the parcels creating a landlocked parcel with a need to traverse the servient estate to obtain access to the dominant property. An easement created in 1828 was used for road access and transportation of timber. More than a hundred years later, the Virginia Supreme Court not only allowed new methods of transportation to be used (tractor-trailers) but allowed the road to be widened to accommodate the new uses. Because the easement guarantees access to the dominant estate and the ability to use it effectively, the use of the easement can expand to accommodate the new uses to which the dominant estate is put. There is a limitation that the easement cannot be widened in

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Doctrine of implied reciprocal negative servitudes only applies within the area intended to be covered by the general plan of uniform development

/ Real Estate Transactions, Servitudes

In Walters v. Colford, 900 N.W.2d 183 (Neb. 2017), a developer sold 14 lots with identical covenants restricting the property to one single-family two-story house and garage. The developer then solder a five-acre adjacent parcel without the covenants. The Nebraska Supreme Court held that the five-acre parcel was not part of the original common scheme and was not impliedly limited by the covenants. There was no basis for putting the future owners of that neighboring parcel on notice that they were part of a common scheme. Developers can avoid litigation about this issue by filing a declaration with a map that explicitly identifies the properties intended to be mutually restricted.

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Courts expand “sex” discrimination laws to include prohibitions on sexual orientation and gender identity discrimination

/ Antidiscrimination Law, Sexual Orientation

Two recent Circuit Court cases create a conflict among the Circuits on the question of whether sexual orientation or gender identity discrimination is a form of “sex discrimination.” While the 11th Circuit and most other Circuits holds that it is not (see Evans v. Georgia Regional Hospital, 850 F>3d 1248 (11th Cir. 2017)), the Second and Sixth Circuits have issued rulings to the contrary. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018); Zarda v. Altitude Express, Inc, 883 F.3d 100 (2d Cir. 2018). Both courts agree with the 7th Circuit’s holding in Hively v. Ivy Tech Cmty. College of Indiana, 853 F.3d 339 (7th Cir. 2017) (Title VII prohibits discrimination on the basis of sexual orientation). Zarda holds that discrimination in employment on the basis of sexual orientation is both per se sex discrimination and a form of gender stereotyping. It is sex discrimination because the employer would not have engaged

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Legal questions about landlord liability when one tenant harasses another

/ Antidiscrimination Law, Consumer Protection, Leaseholds, Nuisance, Real Estate Transactions

Is a landlord liable for breach of the covenant of quiet enjoyment if one tenant harasses another and the landlord does not intervene in some way, either by trying to resolve the dispute or by evicting the harassing tenant? To answer this question we must distinguish two types of legal claims. In the first type of claim, the victim of the harassment claims “constructive eviction” and asks to be relieved of her rental obligations by moving out before the end of the term. In the second type of claim, the tenant sues the landlord for monetary damages for failing to protect her from the other tenant’s actions when the landlord had the legal power to evict the harassing tenant for causing a nuisance or otherwise violating the lease terms by disturbing the quiet enjoyment of the neighbor. Traditionally, the landlord has been held not to be responsible for actions of

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