Property Law Developments

Supreme Court rejects regulatory takings challenge to zoning merger provision

In Murr v. Wisconsin, 2017 WL 2694699 (U.S. 2017), the Supreme Court held that a zoning law that treated two contiguous parcels owned by the same persons as one parcel to determine minimum developable lot size was not an unconstitutional taking of property without just compensation. The merger law provided for variances that might allow development for lots that contained less than one acre of developable space but did not provide for such a variance if two lots were merged.

Supreme Court will decide whether a bakery must sell wedding cake to a same-sex couple as required by Colorado public accommodations law

On June 26, 2017, the Supreme Court took certiorari in this case under the name, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n. (No. 16-111).

The Colorado Court of Appeals has affirmed the Civil Rights Division's that a bakery must sell wedding cakes to same-sex couples if they would ordinarily do so to male-female couples. Mullins v. Read more about Supreme Court will decide whether a bakery must sell wedding cake to a same-sex couple as required by Colorado public accommodations law

First Amendment protects right to federal registration of offensive trademarks that disparage a person or group

The Supreme Court held that the First Amendment prohibits enforcement of a provision of the Lanham Act that purports to deny the benefits of trademark registration to names or marks that "disparage" a person or "bring [them] into contempt or disrepute." Matal v. Tam,2017 WL 2621315 (U.S. 2017); 15 U.S.C. §1502(a) (Lanham Act). The Court held that "this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned Read more about First Amendment protects right to federal registration of offensive trademarks that disparage a person or group

Will leaving land to surviving heirs of the decedent's child creates a life estate in the child with remainder in the heirs

The Georgia Supreme Court has interpreted a will leaving land to the "surviving heir or heirs" of the decedent's child as creating a life estate in the child with a contingent remainder in the child's heirs. Anderson v. Anderson, 791 S.E. 2d 40 (Ga. 2016)

Part performance as exception to the statute of frauds

The Idaho Supreme Court reaffirmed the traditional rule that part performance of a real estate agreement can constitute an exception to the statute of frauds. If that is the case, a contract that would otherwise be unenforceable because it does not comply with the statutory writing formalities may be enforced nonetheless. Hoke v. NeYada, 387 P.3d 118 (Idaho 2016). The case involved a lease with an option to purchase. Because the "buyer" had already entered into possession of the Read more about Part performance as exception to the statute of frauds

No right to be protected from aesthetic nuisance (solar panels)

Courts traditionally refuse to recognize aesthetic nuisances. The mere objection to the appearance of structures on neighboring property is insufficient to constitute a substantial and unreasonable interference with the use and enjoyment of land. Although some courts in recent years have recognized the possibility of an aesthetic nuisance, the Vermont Supreme Court recently reaffirmed the traditional rule when owners complained of ugly solar panels on neighboring property owned by companies that used the land to construct solar arrays. Read more about No right to be protected from aesthetic nuisance (solar panels)

States may not take tribal land by eminent domain

Lands owned by Indian nations and held in trust status cannot be taken by the states by eminent domain, although federal statutory authority allows states to take "allotments" held by the United States in trust for individual tribal citizens for public purposes including utility easements. 25 U.S.C. §357. The Tenth Circuit has held that if the tribe (in this case the Navajo Nation) owns a fractional interest in an allotment, then the state (or its service companies) cannot use eminent domain power to take a utility easement from those allotment owners. Read more about States may not take tribal land by eminent domain

Seventh Circuit holds that transgender discrimination is a form of sex discrimination

Applying Title IX of the Education Amendments Act of 1972, 20 U.S.C. §1681, as well as the Equal Protection Clause of the Fourteenth Amendment, a three judge panel of the Seventh Circuit has ruled that a school must allow a transgender boy to use the boy's bathroom, holding that discrimination on the basis of gender idenitty is a form of sex discrimination. Whitaker v. Kenosha Sch. Dist. No. 1 Bd. of Educ., 2017 U.S. App. LEXIS 9362 (7th Cir. 2017). The court Read more about Seventh Circuit holds that transgender discrimination is a form of sex discrimination

Time-barred claim in bankruptcy held not to violate Fair Debt Collection Practices Act

The Fair Debt Collection Practices Act, 15 U.S.C. §§1692e, 1692f, probibits debt collectors from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt. §1692e, as well as prohibiting any "unfair or unconscionable menas to collect or attempt to collect any debt," §1692f. In Midland Funding, LLC v. Johnson, 197 L.Ed.2d 790 (2017), the Supreme Court, in an opinion by Justice Breyer, held that it was not Read more about Time-barred claim in bankruptcy held not to violate Fair Debt Collection Practices Act

Veteran's retirement pay can be distributed as community property but not so for disability benefits

In Howell v. Howell, 197 L. Ed. 2d 781 (2017), the Supreme Court interpreted and applied a federal statute that allows veterans' retirement pay to be distributed on divorce as community property but does not allow distribution of disability benefits. 10 U.S.C. §1408(c)(1), §1408(a)(4)(B).

Joseph William Singer

Bussey Professor of Law, Harvard Law School