Patron can sue for ADA violations by a diner even if he never went there

/ Antidiscrimination Law, Trespass

A patron who knew he could not enter a diner because the diner did not have wheelchair access could sue the diner and its landlord for violating the Americans with Disabilities Act even though he never went to the diner and tried to get in. Kreisler v. Second Ave. Diner Corp., 2013 WL 5340465 (2d Cir. 2013). The mere fact that he was deterred from going to the diner is enough to give him standing to bring a claim for violating the public accommodation provisions of the ADA. Moreover, once he had standing to sue for one violation, he could sue the diner for other violations of the statute that relate to his particular disability even if he has never been inside.

Patron can sue for ADA violations by a diner even if he never went there Read More »

City ordinance intended to exclude a group home can constitute intentional discrimination even if there is no evidence of an impact on the group home

/ Antidiscrimination Law, Fair Housing Act

The Ninth Circuit affirmed that an action intended to discriminate in violation of the Fair Housing Act (FHA) creates a claim for which relief can be granted even if it has not had any other impact on the plaintiff. Pac. Shores Props., LLC v. City of Newport Beach, 2013 WL 5289100 (9th Cir. 2013). In this case, a city passed an ordinance intended to exclude group homes for recovering alcohol and drug users; it had terms that had the practical effect of prohibiting group homes from opening in most residential areas. The court held that a claim could be brought even if the plaintiff could not prove that the ordinance actually prevented it from acquiring property and operating. The ruling tracks prior case law which allow a damages claim for a prospective tenant denied housing because of her race even if she finds an apartment across the street five minutes later that is

City ordinance intended to exclude a group home can constitute intentional discrimination even if there is no evidence of an impact on the group home Read More »

Conditional permits subject to relaxed standard of review rather than the rigorous proofs required for variances

/ Zoning

New Jersey confusingly refers to conditional permits as “conditional use variances.” This language makes it easy to confuse conditional permits and variances. In TSI East Brunswick, LLC v. Zoning Bd. of Adjustment of Tp. of East Brunswick, 71 A.3d 762 (N.J. 2013), the Supreme Court of New Jersey reaffirmed the traditional rule that variances should be granted only in cases of unusual hardship (or other statutory requirements) because they allow something to be done that violates the intent of the zoning ordinance. Conditional permits, on the other hand, allow an activity to occur on land as long as the conditions are met and thus are subject to a lower standard of proof; they are presumptively permitted (as long as the conditions are established) rather than presumptively prohibited.

Conditional permits subject to relaxed standard of review rather than the rigorous proofs required for variances Read More »

Supreme Court taking cases from last Term

/ Takings

In Arkansas Game & Fish Comm’n v. United States, 133 S.Ct. 511 (2012), the Supreme Court unanimously overruled the Federal Circuit decision in Arkansas Game & Fish Comm’n v. United States, 637 F.3d 1366 (Fed. Cir. 2011), that had held that deviations by the Army Corps of Engineers from a flood management plan that resulted in temporary flooding of riverfront property did not constitute a taking of property without just compensation but might constitute a tort for which compensation could be sought. The Court held that the mere fact that the flooding was temporary did not immunize the government from a takings claim. Justice Ginsburg’s opinion reaffirmed the Court’s preference for “situation-specific factual inquires” in this area, emphasizing that, with only two narrow exceptions, “no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking.” 133 S.Ct. at 518. Because permanent, government-induced flooding

Supreme Court taking cases from last Term Read More »

State seizure of unused traveler’s checks survives substantive due process challenge

/ Due Process, Personal Property, Takings

Kentucky had a law declaring unused traveler’s checks to be abandoned property if they are not used after a period of fifteen years; such property escheated to the state. When the legislature reduced the period from fifteen to seven, the change was challenged as a violation of due process of law. The Sixth Circuit held that the legislation was consistent with the due process clause on the ground that substantive due process requires only that the legislation be rationally related to a legitimate government interest. In this case, the legislation shortening the period from fifteen years to seven was a legitimate revenue-raising measure. American Express Travel Related Services Co. v. Kentucky, 641 F.3d 685 (6th Cir. 2013). The court refused, however, to rule on the question of whether the law effected an unconstitutional taking of property without just compensation, unconstitutionally impaired American Express’s contractual obligations, or was unconstitutionally retroactive in application.

State seizure of unused traveler’s checks survives substantive due process challenge Read More »

Idaho Supreme Court allows MERS to initiate foreclosure proceedings

/ Mortgages, Real Estate Transactions

The Idaho Supreme Court endorsed the power of MERS (Mortgage Electronic Registration Systems) to initiate nonjudicial foreclosure proceedings. Edwards v. Mortg. Elec. Registration Sys. Inc., 300 P.3d 43 (Idaho 2013).The court held that MERS was an agent (nominee) for the actual lender and holder of the beneficial interest in the deed of trust and could act on behalf of its principal. The original deed of trust named Alliance Title as trustee, Lehman Brothers as the lender, and MERS as the beneficiary as nominee for the lender. After MERS substituted a new trustee, the borrower defaulted and the new trustee filed a notice of default to begin foreclosure proceedings. Although the court held that MERS could not be the beneficiary (since no debt was owed to it), MERS could be an agent for the beneficiary (in this case, Lehman Brothers). As agent for the beneficiary, MERS had legal authority to record the

Idaho Supreme Court allows MERS to initiate foreclosure proceedings Read More »

Foreclosure purchaser cannot use self-help to evict tenant at will

/ Leaseholds, Real Estate Transactions

New Hampshire law allows tenancies to be created at-will; that means they can be terminated by either party at any time. When the landlord lost the property through foreclosure, the tenancy ended automatically and no new landlord/tenant relationship was established merely because the tenant kept living on the property. Nor did a state statute that specifically prohibited self-help eviction, N.H. Ev. Stat. §540-A, apply in such a case. Nonetheless, the New Hampshire Supreme Court ruled that summary process was available to evict recover possession of the property and that this available procedure impliedly removed the self-help option. Evans v. J Four Realty, LLC, 62 A.3d 869 (N.H. 2013).

Foreclosure purchaser cannot use self-help to evict tenant at will Read More »

Right to farm law prevents nuisance suit

/ Nuisance

In Toftoy v. Rosenwinkel, 983 N.E.2d 463 (Ill. 2012), the court enforced the state right to farm act to prevent a homeowner from suing a neighboring cattle farm for creating a nuisance. The home owner tried to get around the right to farm statute by arguing that the farm was established after the house had been present. But the court focused on the fact that the the tenant had moved out of the house before the farm was established and that only after the farm was in operation did the home owner demolish the house, build a new one, and move in. The court found that the plaintiff had come to the nuisance despite the fact that a house had been on the property before the farm was established and that the purpose of the right to farm law was to codify the “coming to the nuisance” defense to any nuisance claim.

Right to farm law prevents nuisance suit Read More »

Right of entry held to be compensable under the takings clause

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

The Texas Supreme Court held that a transfer of land to a city with an option to repurchase if the property were ever used for non-park purposes constituted a fee simple subject to condition subsequent and that the right of entry was a property right for purposes of the takings clause and compensable when then city failed to honor the condition. El Dorado Land Co., L.P. v. City of McKinney, 395 S.W.3d 798 (Tex. 2013). The deed provided that the conveyance was “subject to the requirement and restriction that the property shall be used only as a Community Park” and gave the grantor the right to repurchase the property at the price the city paid for it or the current fair market value whichever was less if the property were not used for the designated purpose. Although the repurchase right was called an option to purchase, the Texas Supreme Court interpreted it

Right of entry held to be compensable under the takings clause Read More »

Scroll to Top