Appurtenant easements cannot be used to access after-acquired land next to the dominant estate

/ Easements, Servitudes, Trespass

The Massachusetts Land Court has reaffirmed and applied the traditional rule that an appurtenant easement cannot be used to access after-acquired property next to the dominant estate. Kent v. Roma III, Ltd., 2016 WL 6908191 (Mass. Land Ct. 2016). The court noted that the Restatement (Third) of Property (Servitudes) §4.11, cmt. b suggests that in exceptional cases, damages might be awarded rather than injunctive relief and use of the easement authorized upon payment of those damages, but no facts warranted an exception and a bright line rule was viewed as predictable and as a way to avoid lawsuits to determine whether use of the easement to access after-acquired land imposed a “burden” on the servient estate.

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“Massachusetts rule” reaffirmed: no liability if an overhanging tree damages neighboring property

/ Nuisance, Trespass

A Massachusetts court has reaffirmed the “Massachusetts rule” that “an individual whose property is damaged by an overhanging tree has no cause of action against a landowner of the property upon which the tree lies.” Shiel v. Rowell, 2017 WL 3616892 (Mass. App. Div. 2017), citing Ponte v. DaSilva, 446 N.E.2d 77 (Mass. 1983). The court noted the contrary “Hawaii rule” that does make a tree owner financially responsible if her own trees overhangs neighboring property and damages it.

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First Circuit resolves dispute over religious real and personal property by reference to formal agreements

/ Personal Property, Religious Freedom, Title Issues, Trusts

The First Circuit Court of Appeals has resolved a longstanding and complicated dispute between two congregations over control of the real and personal property of the Touro Synagogue in Newport, Rhode Island. In an opinion by Judge John J. McConnell, Jr., the trial court had found that an implied or constructive trust existed by which a New York Congregation Shearith Israel (CSI) held title to the property for the benefit of the Newport Rhode Island Congregation Jeshuat Israel (CJI). Congregation Jeshuat Israel v. Congregation Shearith Israel, 186 F.Supp.3d 158 (D.R.I. 2016), rev’d, 2017 WL 3276805 (1st Cir. 2017). That opinion enforced Rhode Island property law and reviewed objective evidence of the parties’ relationship to find that the New York congregation held the property for the benefit of the Newport congregation. In an opinion by Justice Souter, the First Circuit reversed on the ground that the First Amendment requires courts to refrain from involvement in

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Out of court admission of permission from prior owners can defeat claim for adverse possession

/ Adverse Possession

The Wyoming Supreme Court has held that out of court statements made by an alleged adverse possessor that he was using the property with permission of the prior owners can be admitted to rebut the presumption that the use was nonpermissive. Galiher v. Johnson, , 2017 WY 31, 391 P.3d 1011 (Wyo. 2017)

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Violation of restrictive covenants by government is a taking of property requiring just compensation

/ Servitudes, Takings

The Kansas Supreme Court has held that restrictive covenants are “property” rights within the meaning of the fourteenth amendment and cannot be violated by government without payment of just compensation. Creegan v. Kansas, 391 P.3d 37 (Kan. 2017).

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Prescriptive easement denied because longstanding use of neighboring land was presumed to be permissive

/ Adverse Possession, Easements, Real Estate Transactions, Trespass

When one occupies property belonging to a neighbor, most courts presume the occupation is adverse (meaning non-permissive), and this “possession” will ripen into ownership through adverse possession law after the statutory period runs out. Most states use the same presumption for prescriptive easements but a minority presume use is permissive rather than nonpermissive when limited use — rather than full occupation or “possession” — is at issue. In such cases, permissive use will be revocable and not ripen into a prescriptive easement. The Massachusetts Land Court applied the presumption that use if permissive in the absence of statements or actions that show that it is nonpermissive and found no prescriptive easement in the case of DiNino v. Newman, 2016 Mass. LCR LEXIS 179 (Mass. Land Ct. 2016).  The court purported to apply the Massachusetts presumption that use is adverse (nonpermissive) and found that facts overcame that presumption. However, the only facts that

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Tribal rights in islands deemed not to include riparian and fishing rights in surrounding waters

/ Tribal Property

in Penobscot Nation v. Mills, 2017  U.S. App. LEXIS 11704 (1st Cir. 2017), the First Circuit held (over a vigorous dissent by Judge Torruella), that the Maine Indian Claims Settlement Act, 25 U.S.C. §1722(i) and the Maine Implementing Act, Me. Rev. Stat. tit. 30, § 6203(8), confirmed ownership of islands to the Penobscot Nation but no rights in the surrounding waters and no rights to fish in those waters. The court focused on the wording of the state act defined the Penobscot lands to include “the islands in the Penobscot River” and that the word “in” plainly referred to the islands and not the water surrounding them. Because the court found the language to be clear and unambiguous, there was no reason to apply the Indian law canons of construction that require ambiguities to be resolved in favor of Indian nations and as those nations would have understood them. The court relied

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Weekly rentals violate zoning restriction to “single-family residences”

/ Leaseholds, Real Estate Transactions, Zoning

The Massachusetts Land Court has held that property used for weekly rentals violate the town zoning ordinance that limits the property to single-family residences. Lytle v. Swiec, 2017 WL 2257702 (Mass. Land Ct. 2017). The case may have implications for AirBnb and other such short-term rental operations. See Zoning By-Law of the Town of Hull, §31-1.

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Supreme Court rejects regulatory takings challenge to zoning merger provision

/ Eminent Domain, Real Estate Transactions, Takings, Zoning

In Murr v. Wisconsin, 2017 WL 2694699 (U.S. 2017), the Supreme Court held that a zoning law that treated two contiguous parcels owned by the same persons as one parcel to determine minimum developable lot size was not an unconstitutional taking of property without just compensation. The merger law provided for variances that might allow development for lots that contained less than one acre of developable space but did not provide for such a variance if two lots were merged. One lot had a house on it and the other was vacant. The owners claimed that the vacant lot had no economically beneficial use since it could not be separately developed. However, the Supreme Court held that the denominator to determine the economic impact of the regulation was the “parcel as a whole” and that in this case that meant the merged parcels. Moreover, even if the two lots could be developed separately,

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First Amendment protects right to federal registration of offensive trademarks that disparage a person or group

/ Antidiscrimination Law, Consumer Protection, Fair Housing Act, Free Speech, Intellectual Property, Religious Freedom, Sexual Orientation, Trademarks

The Supreme Court held that the First Amendment prohibits enforcement of a provision of the Lanham Act that purports to deny the benefits of trademark registration to names or marks that “disparage” a person or “bring [them] into contempt or disrepute.” Matal v. Tam,2017 WL 2621315 (U.S. 2017); 15 U.S.C. §1502(a) (Lanham Act). The Court held that “this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.” The case involved a band called “The Slants” who sought to reclaim an offensive term for persons of Asian descent. Because the Court’s analysis focused on the idea that speech cannot be regulated because of its offensive content, it would appear that this ruling would equally apply to those who use a term about themselves (the members of the Slants are Asian-Americans)

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