Violation of fair housing statute is a defense to eviction

/ Antidiscrimination Law, Leaseholds

The Colorado Supreme Court has held that a landlord who has violated fair housing laws may be disabled from evicted the tenant who was the victim of that discrimination. Miller v. Amos, 543 P.3d 393 (Colo. 2024). The court reasoned that the statutory rights to be free from discrimination not only provide claims but can operate as a valid defense to an assertion of property rights. In this case, the landlord repeatedly demanded that the tenant have sex with him. When she refused, he sued to evict her. In that eviction action, she raised the state fair housing statute as a defense (sexual harassment constitutes sex discrimination), and the state supreme court agreed that the state fair housing law could be used as a defense when the the lease was an oral one that otherwise could be terminated for any reason.

Property tax assessments can violate Fair Housing Act if disproportionately high in communities of color

/ Antidiscrimination Law

The New York Court of Appeals has held that a municipal tax assessment practice may violate the federal Fair Housing Act, 42 U.S.C. §3601 et seq.. if assessments are higher without justification in areas of the city disproportionately inhabited by non-white residents. Tax Equity Now N.Y., LLC v. City of New York, 2024 WL 1160498 (N.Y. 2024). The court also held that these practices may perpetuate segregation. Both the disparate impact because of race and ethnicity and the perpetuation of segregation constitute prima facie claims of disparate impact discrimination under federal regulations. As a factual matter, the trial court found that similar properties in comparable neighborhoods were being assessed at extremely different rates.

Tribe is awarded $400 million in trespass damages against a railroad company that exceeded the scope of an express easement

/ Trespass, Tribal Property

A federal court in Washington has awarded damages of $400 million to The Swinomish Indian Tribal Community to be paid by a railroad company (BNSF Railway Company) for knowingly exceeding the scope of a railroad easement on the tribe’s property. Swinomish Indian Tribal Cmty. v. BNSF Rwy. Co., 2024 WL 3027911, 2024 US. Dist. LEXIS 107314 (W.D. Wash. 2024). Federal common law governs a claim for trespass on Indian lands. The railroad company breached its easement agreement by unilaterally increasing the number of trains and the number of cars crossing tribal land without the tribe’s written consent. The court had found that the railroad company breached a right-of-way easement agreement with the tribe, and that the trespass was “willful, conscious, and knowing throughout the trespass period.” Swinomish Indian Tribal Cmty. v. BNSF Rwy. Co., 664 F.Supp.3d 1218 (W.D. Wash. 2023). In the remedies phase, the court held that disgorgement of …

Tribe is awarded $400 million in trespass damages against a railroad company that exceeded the scope of an express easement Read More »

Denial of right to build a per se taking

/ Takings

The Nevada Supreme Court held that denial of a building permit was a categorical taking when the city did not provide the owner with any viable alternative ways to develop the land. City of Law Vegas v. 180 Land Co., LLC, 546 P.3d 1239 (Nev. 2024).

Interpreting estates in land: presumption against forfeitures or grantor’s intent

/ Estates and Future Interests

Traditionally, courts adopt a “presumption against forfeitures” so that an ambiguous conveyance will not be interpreted to create a future interest. Many courts still retain this interpretive presumption which is not focused on the probably intent of the grantor but on the public policy goal of promoting the alienability of land and freeing current owners from forfeiture of their title. See, e.g.,  Carter Country Club, Inc. v. Carter Comty. Bldg. Ass’n, 273 A.3d 915 (N.H. 2021) (““We generally disfavor interpreting deed conditions in a manner that would cause a forfeiture of the property upon breach of such conditions.”). But see id. (“However, we adhere to the guiding principle that the intent of the parties should be effectuated whenever possible.”). But other courts focus on effectuating the grantor’s intent even if that results in a future interest and a forfeiture of the present estate in land. Bd. of Cnty. Comm’rs of …

Interpreting estates in land: presumption against forfeitures or grantor’s intent Read More »

What happens when unmarried couples purchase property as tenants by the entirety?

/ Concurrent or Common Ownership

Only married couples can own property as tenants by the entirety so what happens if an unmarried couple buys property with a deed that purports to convey a tenancy by the entirety interest? If we presume that the goal was to create a right of survivorship, then we should interpret it as a joint tenancy. If we adopt the general presumption in favor of tenancy in common for ambiguous conveyances, then it should be a tenancy in common. The D.C. Court of Appeals adopted the former assumption and interpreted a conveyance to a father and a son as a joint tenancy finding the entireties language sufficient to overcome the statutory preference for tenancies in common. In re Estate of Hamilton, 299 A.3d 542 (D.C. 2023).

Short-term rentals and residential use restrictions

/ Servitudes, Zoning

We see continued disagreement among the states on the question of whether short-term rentals violate residential use restrictions in covenants or zoning law. Some courts say that short-term rentals are consistent with residential or single-family use restrictions. See, e.g., Pandharipande v. FSD Corp., 679 S.W.3d 610 (Tenn. 2023); Lake Serene Prop. Owners Ass’n Inc. v. Esplin, 334 So.3d 1139 (Miss. 2022); Wilson v. Maynard, 961 N.W.2d 596, 2021 SD 37 (S.D. 2021). But other courts deem short-term rentals to be a trade or business and presumptively not a residential use. See, e.g., Morgan v. Townsend, 302 A.3d 30, 2023 ME 62 (Me. 2023). See also Dixon v. City of Auburn, 2023 WL 7096600 (Ala. 2023) (short-term rentals are inconsistent with zoning limitation to single-family detached dwelling units”).

Scroll to Top