Eighth Amendment prohibits punishing homeless people for using bedding supplies like blankets, pillows, or sleeping bags while sleeping on public lands when there are no available shelter beds

In a straightforward application of the ruling in Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018), the Ninth Circuit held that an Oregon city could not punish homeless people for “camping” on public property and using bedding supplies, such as blankets or pillows or sleeping bags, while doing so, when there were no available beds in city homeless shelters....

Arizona Supreme Court holds that the implied warranty in new home sales cannot be disclaimed

In an important decision, the Arizona Supreme Court held that buyers of new homes have a nonwaivable right to a warranty of fitness. Zambrano v. M & RC II, LLC, 254 Ariz. 53, 517 P.3d 1168 (Ariz. 2022). The court explained that allowing waivability would mean the end of the implied warranty since all builders would include such...

Tax foreclosures violate the takings clause if they government entity retains proceeds beyond the unpaid taxes

In an important case, the Supreme Court held in Tyler v. Hennepin County, 143 S.Ct. 1369 (2023), that it violates the takings clause for a municipality to foreclose on property for nonpayment of property taxes and to retain the value of the property that exceeds the unpaid taxes (with costs). The purpose of a tax foreclosure is to pay off the taxes owed....

Prescriptive easements do not actually require “exclusive” use no matter what courts say

Many courts say that prescriptive easements can only be acquired if the use is “exclusive” among other elements. This is a mechanical holdover from the requirements for adverse possession where courts simply keep the same requirements and substitute “use” for “possession.” But it make no sense for an easement to be “exclusive” since the dominant estate owner retains whatever rights of use are not inconsistent with the easement. It is simply not how...

NY court holds short term rentals violate a covenant limiting property to "single family residential purposes"

With continued disagreement among courts on this question, a trial court in New York has ruled that a covenant limiting property to "single family residential purposes" precludes an owner from renting to short term tenants, effectively preventing use of the property for Airnbnb (and similar) purposes. W...

Marketable title act does not prevent enforcement of reversionary interest in the root of title

The Ohio Supreme Court ruled that a reversionary interest in a deed donating a park to the city was not extinguished by operation of the state marketable title act. Cleveland Botanical Garden v. Worthington Drewien, 2022 Ohio LEXIS 2153 (Ohio 2022)....

Covid-19 closure order does not excuse tenant from paying rent

Applying New York law, the Second Circuit held that a business tenant was not excused from paying rent because of business closure order from the Governor of New York to protect the public from exposure to Covid-19 at the height of the pandemic crisis. In re NTS W. USA Corp...

Joseph William Singer

Bussey Professor of Law, Harvard Law School

August 2023