Property Law Developments

Not a regulatory taking and no compensation due when a town acquires an easement by prescription

The Supreme Judicial Court of the Commonwealth of Massachusetts held that a town can acquire an easement by prescription and that, if it does, no just compensation is due because no regulatory taking has occurred. Rather, the landower failed to object by suing for trespass or to give permission so the statute of limitations for ejecting the intrusion passed and the owner's right to exclude was limited by statute and the doctrine of easement by prescription. The town did not "take" the property; the owner lost property rights by failing to take steps required by law to preserve those rights.... Read more about Not a regulatory taking and no compensation due when a town acquires an easement by prescription

Commercial lease disclaimer of liability for negligence held to be enforceable

A California appeals court has found a disclaimer of liability for negligence in a commercial lease to be enforceable and not to violate public policy even though a state statute made them invalid as to cases involving fraud, willful injuries, gross negligence, or violations of law. Garcia v. D/AQ Corp., 271 Cal. Rptr. 3d 861 (Ct. App. 2020). This case did not fit in...

Physical partition denied when the sale value significantly exceeds the value of the separate parcels despite a co-owners attachments to the land

The Nebraska Supreme Court held that partition by sale is preferred to physical partition if the fair market value of the land as a whole exceeds the market value of separate parcels even if a co-owner objects to the sale because of sentimental attachments to the land. FTR Farms, Inc. v. Rist Farms, Inc., 942 N.W.2d 204 (Neb. 2020). A somewhat similar case came out the...

Tenant not entitled to damages under the implied warranty of habitability for injuries from slipping on an icy driveway

The Supreme Judicial Court of the Commonwealth of Massachusetts held, in Goreham v. Martins, 147 N.E.3d 478 (Mass. 2020), that a landlord is not liable for injuries to a tenant who slips on ice in the driveway under the implied warranty of habitability because such claims are, in effect, strict liability claims and injuries to the body in the context of landlord-...

Judicial foreclosure is not “debt collection” under FDCPA

The Ninth Circuit held, in Barnes v. Routh Crabtree Olsen PC, 963 F.3d 993 (9th Cir. 2020), that judicial foreclosure is not a form of “debt collection” covered by and regulated by the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692e-g. The court relied on the Supreme Court’s decision in Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029 (2019) that a law...

Two court reject impossibility defense to tenant rent obligations under government shutdown orders while one abates rent under the wording of the force majeure clause

When Governor Cuomo ordered most businesses to stop serving the public during the COVID-19 pandemic, some could not generate the income needed to pay rent. Some have argued that the impossibility of earning profits to pay rents should constitute a defense to the contractual obligation to pay rent. Two courts in New York have now rejected that argument, including the federal Southern District and a state supreme court.

Loan modification agreements unenforceable unless in writing

An appellate court in California has held that the state's statute of frauds require loan modification agreements to be in writing to be enforceable. Reeder v. Specialized Loan Serv., LLC, 2020 WL 4345001 (Cal. Ct. App. 2020). This is an expected application of the statute of frauds but it does not mean that some courts, in other factual settings, might make exceptions if the... Read more about Loan modification agreements unenforceable unless in writing

Tree that straddles the border can be removed by owner of land where it was planted

The Colorado Supreme Court held that a tree can be removed without consent of the neighbor when the tree was first planted on the owner’s land and it encroached on the neighbor’s land as it grew. Love v. Klosky, 413 P.3d 1267 (Colo. 2018)

Marketable title act extinguishes easement by necessity

In a surprising decision, the Vermont Supreme Court held that an easement by necessity must be recorded or it will be lost by operation of the state’s marketable title act. Gray v. Treder, 2018 VT 137, 204 A.3d 1117 (Vt. 2018). The facts of the case were unusual, however, because the easement in this case was not clearly visible by physical evidence of its use. That will...

Easement by necessity may include right to lay utility lines for necessary services

The Connecticut Supreme Court has held that an easement of access established by necessity, an expansion of that easement for utility lines will be allow so long as it is reasonably necessary for the beneficial enjoyment of the dominant estate and does not unreasonably impair the servient estate owner’s beneficial enjoyment of their property.

Joseph William Singer

Bussey Professor of Law, Harvard Law School