Supreme Court will decide whether a bakery must sell wedding cake to a same-sex couple as required by Colorado public accommodations law

/ Antidiscrimination Law, Sexual Orientation

On June 26, 2017, the Supreme Court took certiorari in this case under the name, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n. (No. 16-111). The Colorado Court of Appeals has affirmed the Civil Rights Division’s that a bakery must sell wedding cakes to same-sex couples if they would ordinarily do so to male-female couples. Mullins v. Masterpiece, 2015 Colo. App. LEXIS 121, 2015 COA 115 (Colo. App. 2015). State law prohibits discrimination on the basis of sexual orientation in public accommodations, and neither the state statute itself nor the constitution entitles the providers of goods and services to engage in proscribed discrimination for religious reasons. The court rejected the bakery’s contention that it was acting on the basis of an opposition to same-sex marriage rather than an intent to discriminate on the basis of sexual orientation. The court held that it did not matter that the bakery would sell baked goods other than a […]

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States may not take tribal land by eminent domain

/ Easements, Eminent Domain, Tribal Property

Lands owned by Indian nations and held in trust status cannot be taken by the states by eminent domain, although federal statutory authority allows states to take “allotments” held by the United States in trust for individual tribal citizens for public purposes including utility easements. 25 U.S.C. §357. The Tenth Circuit has held that if the tribe (in this case the Navajo Nation) owns a fractional interest in an allotment, then the state (or its service companies) cannot use eminent domain power to take a utility easement from those allotment owners. Public Serv. Co. of N.M. v. Barboan, 2017 U.S. App. LEXIS 9204 (10th Cir. 2017). The only way to acquire such an easement is for the land to be taken by the eminent domain power of the United States or in a voluntary sale with the consent of the relevant Indian nation and required consent by the United States generally exercised

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No right to be protected from aesthetic nuisance (solar panels)

/ Nuisance

Courts traditionally refuse to recognize aesthetic nuisances. The mere objection to the appearance of structures on neighboring property is insufficient to constitute a substantial and unreasonable interference with the use and enjoyment of land. Although some courts in recent years have recognized the possibility of an aesthetic nuisance, the Vermont Supreme Court recently reaffirmed the traditional rule when owners complained of ugly solar panels on neighboring property owned by companies that used the land to construct solar arrays. Myrick v. Peck Elec. Co., 2017 V. 4, 2017 Vt. LEXIS 4 (2017). “An unattractive sight — without more — is not a substantial interference as a matter of law because the mere appearance of the property of another does not affect a citizen’s ability to use and enjoy his or her neighboring land.” Id. at ¶5.

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No right to be protected from aesthetic nuisance (solar panels)

/ Nuisance

Courts traditionally refuse to recognize aesthetic nuisances. The mere objection to the appearance of structures on neighboring property is insufficient to constitute a substantial and unreasonable interference with the use and enjoyment of land. Although some courts in recent years have recognized the possibility of an aesthetic nuisance, the Vermont Supreme Court recently reaffirmed the traditional rule when owners complained of ugly solar panels on neighboring property owned by companies that used the land to construct solar arrays. Myrick v. Peck Elec. Co., 2017 V. 4, 2017 Vt. LEXIS 4 (2017). “An unattractive sight — without more — is not a substantial interference as a matter of law because the mere appearance of the property of another does not affect a citizen’s ability to use and enjoy his or her neighboring land.” Id. at ¶5.

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Part performance as exception to the statute of frauds

/ Leaseholds, Real Estate Transactions, Statute of Frauds, Title Issues

The Idaho Supreme Court reaffirmed the traditional rule that part performance of a real estate agreement can constitute an exception to the statute of frauds. If that is the case, a contract that would otherwise be unenforceable because it does not comply with the statutory writing formalities may be enforced nonetheless. Hoke v. NeYada, 387 P.3d 118 (Idaho 2016). The case involved a lease with an option to purchase. Because the “buyer” had already entered into possession of the property and needed only to make the required payments, the agreement was enforceable despite the fact that the land description was not sufficiently precise to satisfy the statute of frauds.

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Will leaving land to surviving heirs of the decedent’s child creates a life estate in the child with remainder in the heirs

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

The Georgia Supreme Court has interpreted a will leaving land to the “surviving heir or heirs” of the decedent’s child as creating a life estate in the child with a contingent remainder in the child’s heirs. Anderson v. Anderson, 791 S.E. 2d 40 (Ga. 2016)

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Seventh Circuit holds that transgender discrimination is a form of sex discrimination

/ Antidiscrimination Law, Fair Housing Act, Sexual Orientation, Trespass

Applying Title IX of the Education Amendments Act of 1972, 20 U.S.C. §1681, as well as the Equal Protection Clause of the Fourteenth Amendment, a three judge panel of the Seventh Circuit has ruled that a school must allow a transgender boy to use the boy’s bathroom, holding that discrimination on the basis of gender idenitty is a form of sex discrimination. Whitaker v. Kenosha Sch. Dist. No. 1 Bd. of Educ., 2017 U.S. App. LEXIS 9362 (7th Cir. 2017). The court affirmed a preliminary injunction granted by the District Court requiring the school to allow plaintiff access to the restroom that conforms to his gender identity. The court rested on the gender conformity argument because “[b]y definition, a transgender individual does not conform to the sex-based stereotypes of the sex that he or she was assigned at birth” and a “policy that requires an individual to use a bathroom that

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Veteran’s retirement pay can be distributed as community property but not so for disability benefits

/ Marital Property

In Howell v. Howell, 197 L. Ed. 2d 781 (2017), the Supreme Court interpreted and applied a federal statute that allows veterans’ retirement pay to be distributed on divorce as community property but does not allow distribution of disability benefits. 10 U.S.C. §1408(c)(1), §1408(a)(4)(B).

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Time-barred claim in bankruptcy held not to violate Fair Debt Collection Practices Act

/ Consumer Protection, Mortgages, Real Estate Transactions

The Fair Debt Collection Practices Act, 15 U.S.C. §§1692e, 1692f, probibits debt collectors from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt. §1692e, as well as prohibiting any “unfair or unconscionable menas to collect or attempt to collect any debt,” §1692f. In Midland Funding, LLC v. Johnson, 197 L.Ed.2d 790 (2017), the Supreme Court, in an opinion by Justice Breyer, held that it was not unfair, deceptive, misleading, or unconscionable to make a claim in a bankruptcy proceeding based on a debt when the statute of limitations has run on the claim. The majority argued that the Bankruptcy Code allowed presentation of any “claim” and did not qualify that by saying “enforceable claim.” The Court noted that such a claim might be unfair in an ordinary civil suit but distinguished the bankruptcy process partly because it treats untimeliness as an affirmative defense and because

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Supreme Court rules that a city has a claim against a bank for the consequences of discriminatory subprime mortgages

/ Antidiscrimination Law, Consumer Protection, Mortgages, Real Estate Transactions

In Bank of America Corp. v. City of Miami, 137 S.Ct. 1296, 197 L. Ed. 2d 678 (2017), the Supreme Court held that the City of Miami was an “aggrieved person” within the meaning of the Fair Housing Act, 42 U.S.C. §3602(i), and that it could sue the Bank of America (and other banks) for lost tax revenue and other municipal expenses resulting from alleged discriminatory grants of subprime mortgages to Miami residents that resulted in mass foreclosures and vacancies. While it violates the FHA to deny mortgages on the basis of race, it also violates the FHA to target a racial group for disfavored terms. The Court noted that it had been previously held that white persons have a claim under the FHA when they are deprived of the benefits of interracial associations when discriminatory rental practices kept African Americans out of a rental complex (citing Trafficante v. Metropolitan Life Ins. Co., 409

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