Websites are public accommodations so Netflix must provide close captioning on web-streamed movies

/ Antidiscrimination Law, Consumer Protection

A federal judge in Massachusetts ruled that websites are “places of public accommodation” regulated by the Americans with Disabilities Act (42 U.S.C. §12182(a)), and thus the online movie service Netflix was required to provide closed captioning for all it “Watch Instantly” content. Nat’l Ass’n of the Deaf v. Netflix, Inc., 2012 U.S. Dist. LEXIS 84518 (D. Mass. June 19, 2012). The court’s judgment rested on the First Circuit’s conclusion that “places of public accommodation” under the ADA were not limited to “actual physical structures.” Carparts Distrib. Ctr. v. Auto. Wholesaler’s Ass’n, 37 F.3d 12, 19 (1st Cir. 1994).

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Mass high court prospectively requires banks to physically possess the note as well as the mortgage in order to foreclose

/ Consumer Protection, Due Process, Mortgages, Real Estate Transactions, Title Issues

In Eaton v. Fed. Nat’l Mortgage Ass’n (Fannie Mae), 2012 Mass. LEXIS 488 (Mass. June 22, 2012), the Supreme Judicial Court of Massachusetts held that a foreclosing party must be in physical possession of both the note and the mortgage (or be acting on behalf of someone who does) when bringing a foreclosure proceeding. However, the ruling applies only prospectively to foreclosures that occur in the future, with the exception that the plaintiff in Eaton that convinced the Court to clarify this rule can take the benefit of it. The refusal to apply the rule retroactively was based on the belief that the law may have been unclear beforehand and that it was the case that many people acted without regard for this principle in the past.

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Rhode Island passes Homeless Bill of Rights

/ Antidiscrimination Law, Fair Housing Act, Personal Property, Trespass

The Rhode Island legislature passed a statute likely to be signed by the Governor called the “Homeless Bill of Rights.” The act amends Rhode Island’s fair housing law by adding “housing status” to the list of prohibited kinds of discrimination and defines housing status to mean “the status of having or not having a fixed or regular residence, including the status of living on the streets or in a homeless shelter or similar temporary residence.” It guarantees access to public spaces (including sidewalks and public buildings) on the same terms as others and grants a certain amount of protection for the personal property of the homeless. The law also ensures that public services are available to homeless persons. The bill is S 2052 Substitute B (2012) and it will amend R.I. Gen. Laws ch. 34 by adding §§34-37.1-1 to 34-37.1-5 and amending §§34-37-1 and 34-37-3.

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Stray bullets from gun club ruled a nuisance

/ Nuisance, Zoning

A Massachusetts trial court has banned a gun club from allowing pistols and rifles to be fired on its premises in the face of evidence that stray bullets have entered neighboring properties. Read article Justice Charles Hely converted a three-year-old temporary restraining order into a permanent injunction and ordered payment of a total $22,000 in damages to be paid to several neighbors who lived within a half-mile radius of the club. One plaintiff narrowly escaped being hit by a bullet that entered her laundry room shortly after she left it. The club had also been shut down for failure to obtain necessary permits.

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Adverse possession based on occupation not intent to dispossess

/ Adverse Possession

The Massachusetts Land Court has reaffirmed the longstanding rule that occupation of property is sufficient to  make it “adverse” or nonpermissive. Kissinger v. Frankelton, MISC 10-420652 (Mass. Land Ct. Mar. 8, 2012). Adverse possessors need not know they are occupying land of another or intend to wrest it from the control of others. Such a requirement would reward land pirates and deny protection to longstanding good faith possessors. While this rule is long established and sensible, it is remarkable how many cases revisit it, perhaps because some lawyers did not pay attention in law school and continue to argue that “adverse” possession depends on the adverse possessor’s knowledge of intrusion onto the property of another and intent to take it.

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Easements implied by prior use or by necessity

/ Easements, Real Estate Transactions

The Massachusetts Land Court has reaffirmed that easements can be implied from prior use if they were used before severance of the two parcels and are “reasonably necessary” for use of the dominant estate while easements by necessity require the dominant estate to be inaccessible but for the easement. Black v. Klaetke, 20 LCR 120, 2012 Mass. LCR LEXIS 56 (Mass. Land Ct. 2012).

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Abutters have standing to challenge neighbor’s compliance with zoning law

/ Zoning

State zoning enabling statutes generally define who has the power to challenge decisions by zoning boards about allowable land uses. Many allow abutters who are specially affected by land uses to challenge the legality of building permits or zoning decisions on the ground that if they are not granted this right, there will be no deterrence to zoning boards who ignore the limits of local zoning regulations. The Massachusetts Land Court affirmed the right of abutters who can show they were affected by neighboring land use to challenge zoning permit decisions as “persons aggrieved” under state statutes. Teti v. Town of Sherborn, 20 LCR 154 (Mass. Land Ct. Feb. 29, 2012).

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New York high court exempts options to renew leases from the rule against perpetuities

/ Estates and Future Interests, Restraints on Alienation

The New York Court of Appeals joined the majority of states in holding that the rule against perpetuities does not apply to options to renew leases. Bleecker St. Tenants Corp. v. Bleeker Jones LLC,  945 N.E.2d 484 (N.Y. 2011). It should be noted that only a minority of states have the traditional rule against perpetuities and New York’s rule is codified by statute. “No estate in property shall be valid unless it must vest, if at all, not later than twenty-one years after one or more lives in being at the creation of the estate and any period of gestation involved.” N.Y. Est. Powers & Trusts §9-1.1(b).

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Covenants no longer strictly construed to reduce encumbrances on land but are now interpreted to achieve the intent of the parties

/ Consumer Protection, Real Estate Transactions, Servitudes

A New Mexico Appeals Court joined the modern trend in rejecting the interpretive rule that covenants should be narrowly construed, instead adopting the modern approach of interpreting the grant to achieve the grantor’s intent. Agua Fria Save The Open Space Ass’n v. Rowe, 255 P.3d 390 (N.M. 2011). When the language of the grant is unclear, “evidence of the circumstances surrounding the making of the contract and of any relevant usage of trade, course of dealing, and course of performance” is relevant in interpreting the government documents. 255 P.2d at 395.

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Court rules that designated open space on plat is insufficient to establish an easement absent proof the developer induced buyers to purchase in reliance on promises of open space

/ Consumer Protection, Easements, Estates and Future Interests, Real Estate Transactions, Statute of Frauds

Disagreeing with the ruling of the Massachusetts Supreme Judicial Court in Reagan v. Brissey, 844 N.E.2d 672 (Mass. 2006), an appeals court in New Mexico held that open space designated on a recorded plat is not sufficient to create an easement of access by owners of lots on the map in the absence of evidence the developer made representations to buyers inducing them to buy in reliance on promises those lots would remain open. The mere presence of open space on the map was insufficient to prevent the developer from selling that open space for development purposes. Agua Fria Save The Open Space Ass’n v. Rowe, 255 P.3d 390 (N.M. 2011)

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