Sexual orientation discrimination as a form of sex discrimination

/ Antidiscrimination Law, Consumer Protection, Fair Housing Act, Sexual Orientation

While the West Virginia Supreme Court adopted the traditional view that discrimination because of sexual orientation is not a form of sex discrimination, State v. Butler, 2017 W. Va. LEXIS 333 (W.Va. 2017) (hate crime against two gay men did not constitute criminal civil rights violation willfully injuring a person “because of such other person’s … sex”), the Seventh Circuit came to the opposite view in Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339 (7th Cir. 2017). See also Christiansen v. Omnicom Group, Inc., 2017 U.S. App. LEXIS 5278 (2d Cir. 2017) (although bound by precedent to hold the opposite, the court argued that sexual orientation discrimination is a form of sex discrimination); Smith v. Avanti, 2017 U.S. Dist. LEXIS 54777 (D.Colo. 2017) (refusal to rent to same-sex couple when one of the two was a transgender woman is a form of sex discrimination because it is based on gender stereotyping). The West Virginia Supreme […]

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Electricity easement held not to encompass use for fiber-optic cable

/ Easements, Real Estate Transactions, Servitudes

While most courts have held that utility easements for electricity or telephone purposes can be used for cable television and other such purposes, see. e.g., Henley v. Continental Cablevision of St. Louis County, Inc., 692 S.W.2d 825 (Mo. Ct. App. 1985), a small number have gone the other way on the ground that easements are limited rights to use the land of another and that the use cannot exceed the scope of the original grant, see, e.g., Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697, 699 (Tex. 2002).  The Eighth Circuit recently took the minority approach in Barfield v. Sho-Me Power Elec. Coop., 852 F.3d 795 (8th Cir. 2017), holding that a rural electric cooperative’s easements did not allow use of fiber-optic cable installed alongside electrical lines to serve the general public. The court emphasized that an easement is a “right to use land for particular purposes,” and interpreted a statute that

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Cell tower on neighboring property is not an aesthetic nuisance

/ Nuisance

In Laubenstein v. Bode Tower, LLC, 392 P.3d 706, 2016 OK 118 (Okla. 2016), the Oklahoma Supreme Court refused to recognize a cell tower on neighboring property as a nuisance. The neighboring owner complained both about the tower’s appearance as well as the flashing warning lights installed for safety purposes which reflected in the water on his property. The court based its ruling partly on the traditional rule that “nuisance claims founded solely on aesthetic harm are not actionable.” ¶11. Prior nuisance cases in the state either involved physical injury to land or offensive activity rendering homes uninhabitable.

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Legal aid access to farm to aid migrant farmworkers held not to be a trespass

/ Trespass

In a case reminiscent of the well-known case of State v. Shack, , 277 A.2d 369 (N.J. 1971), a federal judge applying Maryland state law has held that lawyers have a right to enter farmland to provide services to migrant farmworkers and that such an entry is not a trespass even if it is against the wishes of the land owner. Rivero v. Montgomery Cnty., 2017 U.S. Dist. LEXIS 67170 (D. Md. 2017). The court noted that the First Amendment “protects individuals’ right to impart information and opinions to citizens at their homes” (citing Schneider v. New Jersey, 308 U.S. 147, 152 (1939) and that state statutes provided that, while one cannot enter cultivated land without the permission of the owner, the law “does not…prevent a person who resides on cultivated land from receiving a person who seeks to provide a lawful service.” Md. Code, Crim. Law §6-406(b), (d)(2)(i).

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Adverse possessor has trespass claim against original owner

/ Adverse Possession, Trespass

In Owens v. Buccheri, 2016 Mass. LCR LEXIS 121 (Mass. Land Ct. 2016), the Massachusetts Land Court held that an adverse possessor can sue the original owner of land acquired by adverse possession for trespass when the original owner cuts down trees and excavates on the land. While in some sense an unremarkable holding, it is an object lesson not to engage in self-help on disputed land when the facts are such that one might have lost title to that land by adverse possession. The court also reaffirmed the rule that one can commit a trespass by mistake if entry on the land is voluntary. The court also interpreted a state law allowing for treble damages for removal of trees on someone else’s land to allow damages not only for the value of the timber that was wrongfully cut or the diminution in the fair market value of the land but

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Retroactive restraints on leasing in homeowners associations

/ Condominiums and Homeowners Associations, Estates and Future Interests, Leaseholds, Real Estate Transactions, Restraints on Alienation, Servitudes

The courts continue to divide over the question of whether it is fair to allow homeowners associations to impose retroactive restraints on leasing on existing owners who purchased with no notice of the restriction. While most states allow this, a few do not, and the Restatement (Third) of Property (Servitudes) §6.10(2), §6.10 cmt. g, takes the position that such major changes in property rights can only be accomplished prospectively unless there is a unanimous vote to alter those rights. The Idaho Supreme Court recently adopted what appears to be the majority approach, authorizing a homeowners association to retroactively prohibit existing owners from agreeing to short term rentals of less than six months. Adams v. Kimberley One Townhouse Owner’s Ass’n, 352 P.3d 492 (Idaho 2015). In contrast, the Supreme Court of Washington refused to allow retroactive restraints on short term rentals in Wilkinson v. Chiwawa Commties. Ass’n, 327 P.3d 614 (Wash. 2014), requiring unanimous approval for such

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Distinguishing between a right of first refusal and a restraint on alienation

/ Estates and Future Interests, Real Estate Transactions, Restraints on Alienation, Servitudes

The Massachusetts Land Court decided an interesting case interpreting a conveyance that reads like a right of first refusal but can be interpreted as a broader restraint on alienation giving discretion to a nonprofit entity to refuse absolutely to any transfer of the land. Gottlieb v. Girl Scouts of E. Mass., 2016 WL 3523859 (Mass. Land Ct. 2016). The conveyance stated that “before [charitable organization A] shall sell, transfer, or otherwise dispose of the [land, it] shall first offer said land to [charitable organization B] as an unencumbered gift, sale or otherwise to be used by [charitable organization B] for any charitable or civic purpose…” The court found that the clause was not a use restriction but a limit on transfer and thus a restraint on alienation. It also found that it was not a right of first refusal because it did not require purchasing the property at fair market value or matching a bona fide third party

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Fee simple absolute found despite language of “in trust” and “for the uses, purposes” of the YWCA

/ Estates and Future Interests, Real Estate Transactions, Statute of Frauds, Title Issues, Wills and Inheritance

In a standard application of traditional estates doctrine, the Massachusetts Appeals Court has found a fee simple absolute despite language in the grant to the YWCA stating that the property was given “in trust, nevertheless, for the uses, purposes and trusts aforesaid.” Young Women’s Christian Ass’n, Inc. of Boston, Inc. v. Young Women’s Christian Ass’n of Philadelphia, Inc., 90 Mass. App. Ct. 1119, 2016 WL 7162737 (Table) (Mass. 2016). Traditionally any language in a conveyance of a fee simple that explains the “purpose” of the transfer or the “use” to which it is to be put, is interpreted as precatory language that has no legal effect on the title that is conveyed. The interpretive principle of the “presumption against forfeitures” suggests that any retained future interest or right of control in the grantor must be created explicitly and unambiguously. Some courts interpret this language to create an implied trust, or a fee simple

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Admitted student status at public university held to be a property right that cannot be taken without due process of law

/ Due Process

A federal court in Virginia has held that a student at a public university has a constitutionally-protected property interest in his place at the university and that he cannot be deprived of that right without due process of law under the fourteenth amendment. Doe v. Alger, 2016 WL 7429458 (W.D. Va. 2016). The student faced disciplinary hearings arising oiut of allegations that he sexually assaulted another student. He complained that the appeals process was unfair. He was found not responsible after the first hearing but after submission of new evidence he claims he was not able to fully contest, he was held responsible by the appeals committee. The court did not rule on the substantive question of the fairness of the procedures but did hold that students at a public university have a constitutionally protected right to continue as admitted students unless deprived of that right by due process of law. Suspending the student

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Town cannot impose greater parking requirements for a mosque than for churches or synagogues

/ Antidiscrimination Law, Real Estate Transactions, Religious Freedom, Zoning

A town violated the Religious Land Use-Institutionazlied Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5, when its planning board required a mosque to provide off-street parking for every single member as a condition of receiving a building permit when it had not imposed similar requirements for churches and synagogues. Islamic Soc’y of Basking Ridge v. Twp. of Bernards, 2016 U.S. DIst. LEXIS 180568 (D.N.J. 2016). The town had reasoned that, because religious services were on Friday afternoons, almost every person would be using a car to attend services while the same would not be true for churches and syanagogues. The court found this reasoning to be discriminatory since the proposed mosque plan was subjected to unprecedented individualized inquiry that had not taken place for other non-Islamic religious institutions in the past. That constituted a RLUIPA violation because it violated the “equal terms” provisions which prohibit “impos[ing] or implement[ing] a land use regulation in

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