Sex offender residency law struck down as unconstitutional by California Supreme Court

/ Due Process, Homelessness

The California Supreme Court has struck down a voter initiative that barred all sex offenders from living within 2000 feet of schools and parks. In re Taylor, 83 U.S.L.W. 1299, 2015 BL 54822 (Cal. 2015). The court held that the ban deprived sex offenders of liberty without due process of law because it rendered many sex offenders homeless and was not reasonably related to government interests in protecting children. Because 97 percent of the county was off limits to sex offenders, many had no place where they could live or receive medical treatment and services, depriving them of constitutionally protected liberty interests. The law also  made it difficult or impossible for the sex offenders to be monitored by parole officers, thereby defeating the purpose of the regulation and depriving it of any rational relationship to the legitimate government objective of protecting the public.

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Fair Housing Act’s Disparate Impact Claims at Issue

/ Antidiscrimination Law, Fair Housing Act, Real Estate Transactions

The Supreme Court has taken certiorari in a Fifth Circuit case to address the question of whether disparate impact claims are available under the Fair Housing Act (FHA), 42 U.S.C. §§3601 et seq. Tex. Dep’t of Hous. & Comty. Affairs v. The Inclusive Communities Project, Inc., 135 S.Ct. 46 (2014), on appeal from The Inclusive Communities Project, Inc. v. Tex. Dep’t of Hous. & Comty. Affairs, 747 F.3d 275 (5th Cir. 2014). All federal Circuit Courts to address the issue have found such claims to be available and the Department of Housing and Urban Affairs has fairly recently promulgated a regulation defining the test for disparate impact claims under the FHA. 24 Code Fed. Reg. Part 100, §§100.5 to 100.500.

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Easement by necessity implied over government land

/ Easements, Real Estate Transactions

A Hawai`i court has recognized an easement by necessity over government land when the landlocked parcel was separated from land belonging to the state. Malulani Group, Ltd. v. Kaupo Ranch, Ltd. 329 P.3d 330 (Haw. 2014). The court held that the intent of the parties determines whether an easement exists over remaining land of the grantor to ensure access to a public road from an otherwise landlocked parcel. The court also held that no statute of limitations bars assertion of an easement by necessity.

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Servient owner entitled to change easement location

/ Easements, Real Estate Transactions, Servitudes

The Vermont Supreme Court has adopted the rule promoted by the Restatement (Third) of Property (Servitudes), §4.8(3), allowing the owner of a servient estate to relocate an easement if this does not reduce the utility of the easement to the owner of the dominant estate. Roy v. Woodstock Cmty. Trust, Inc., 94 A.3d 530 (Vt. 2014). The case concerned an underground easement for water lines. The court also held that the dominant estate owner was entitled to build a housing complex and that this development did not exceed the scope of a right-of-way easement even though it had been originally used only by a church.

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City can demolish blighted structure it believes is financially unreasonable to repair

/ Due Process, Eminent Domain, Takings

The Michigan Supreme Court overturned a lower court ruling that had held it to be unconstitutional for a city to demolish a structure that the city believes is financially unreasonable to repair even if the owner claims to want to make the repairs. The court held that it does not constitute a deprivation of due process of law to require the demolition given the fact that the owner allowed the property to become dilapidated and the city could rationally believe that demolition was the best remedy to remove the public nuisance. Bonner v. City of Brighton, 848 N.W.2d 380 (Mich. 2014).

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New Jersey Supreme Court confirms state constitution’s grant of free speech rights to enable a coop owner to disseminate written information to co-owners

/ Condominiums and Homeowners Associations, Consumer Protection, Free Speech, Trespass

While the US Constitution’s free speech provisions in the first amendment apply only to state action, both California and New Jersey have interpreted their state constitutions to grant individuals free speech rights in some cases in relation to private parties. In both states, citizens have the right to distribute leaflets in shopping centers. In Dublirer v. 2000 Linwood Avenue Owners, Inc., 2014 WL 6777311 (N.J. 2014), a resident wanted to run for a seat on the Board of Directors of the coop and sought to distribute materials relevant to his campaign and he was prevented from doing so by the coop board. The Supreme Court of New Jersey held that the coop rule banning soliciting and distributing written materials in the building was unreasonable and a violation of the resident’s state constitutional free speech rights. The ruling reaffirmed and expanded on the rulings in earlier cases that protected free speech rights of owners in common-interest communities

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New York law protects inheritance rights of children conceived after the death of their biological parents

/ Wills and Inheritance

New York state has adopted a statute that defines procedures for ensuring that children conceived after the death of their biological parents can inherit property, receive Social Security survivor benefits, and benefit from trusts established for them. The law applies to  ova or sperm that are stored for use after the death of a biological parent, usually when that parent knows his or her lifespan is limited. The law requires a written declaration of the purpose for which the biological material was stored, recording of the document in public records, and requires the genetic child to be in utero within 24 months or born within 33 months of the death of the genetic parent. read article

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Cert denial brings same-sex marriage to many more states

/ Antidiscrimination Law, Marital Property, Sexual Orientation

The Supreme Court’s refusal to take certiorari in a number of cases means that same-sex marriage will become legal in Indiana, Oklahoma, Utah, Virginia and Wisconsin, and soon afterwards in Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming bringing the total number of jurisdictions to 31 (including the District of Columbia) plus at least 5 Indian nations. In addition a ruling by a three judge panel in the 9th Circuit on Oct 7, 2014 will likely open up Nevada and Idaho as well, making a total of 33 jurisdictions. States that still ban same-sex marriages include Alaska, Montana, Arizona, North Dakota, South Dakota, Nebraska, Texas, Missouri, Arkansas, Louisiana, Michigan, Ohio, Kentucky, Tennessee, Mississippi, Alabama, Georgia and Florida. Jessica Meyers, Appeals rejected, way cleared for wider same-sex marriage: court action likely to affect 11 more states, Boston Globe, Oc. 6, 2014.

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No easement by necessity when parcel is landlocked because of eminent domain

/ Servitudes, Takings

When a taking of property by eminent domain to build a highway bifurcated a parcel, one part became landlocked but obtained access to a public road by permission over neighboring property. When that permission ended many years later and the parcel became landlocked the owner sought an easement by necessity over the neighbor’s land but the court found the traditional requirements for such an easement to be lacking. Since the parcel had not become landlocked when severed from the neighboring land there was no basis for imposing an obligation on that neighbor to create an easement for access to the roads. Nor did the owner obtain a prescriptive easement because access to the land had been by permission. No claim was made for a constructive trust or easement by estoppel, alternative theories that might have been relevant if the owner of the servient estate had induced the owner of the

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Tribal sovereign immunity precludes tax foreclosure action against tribe

/ Tribal Property

The Supreme Court’s recent reaffirmation of the long-standing rule that that Indian nations have sovereign immunity from suit in the absence of waiver by the tribe or abrogation by Congress, Michigan v. Bay Mills Indian Cmty., 134 S.Ct. 2024 (2014),  led the Second Circuit to reaffirm its earlier decision to deny a county the power to foreclose on tribal land for failure to pay state property taxes. Cayuga Indian Nation v. Seneca Cnty., 2014 WL 3746795 (2d Cir. 2014). While having a right without a remedy would seem to render the right meaningless, the oddity of this situation can be attributed to the vagaries of federal Indian law and casts doubt on the wisdom of earlier decisions that authorized the state to tax tribal land. For the earlier Second Circuit decision, see Oneida Indian Nation of N.Y. v. Madison Cnty., 605 F.3d 149 (2d Cir. 2010), vacated, 131 S.Ct. 704 (2011). The Supreme Court decision

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