Property Law Developments

Eviction moratorium does not violate contract clause

The Ninth Circuit upheld a city eviction moratorium against a contracts clause challenge. Apartment Ass'n of Los Angeles County, Inc. v. City of Los Angeles, 2021 WL 3745777 (9th Cir. 2021). While the law did affect contract rights, it was reasonable and appropriate and did not constitute retroactive deprivation of vested rights as required for the clause to apply. The court cited Home Building...

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Sexual harassment of tenant by property manager violates Fair Housing Act

The Eleventh Circuit joins other courts that have held that sexual harassment by a landlord (or an agent of the landlord) can constitute sex discrimination in violation of the Fair Housing Act, 42 U.S.C. §3601 to §3613 if the behavior would not have occurred but for the tenant's sex.

This formulation has been adopted by other courts, see United States v. Hurt, 676 F.3d 649 (9th Cir. 2012), Quigley v. Winter, 598 F.3d 938 (8th Cir. 2010), and suggests that a landlord that sexually harasses both men and women would not be liable for engaging in sex discrimination — a result that...

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Kansas "ag gag" law unconstitutional infringement on free speech

A Kansas statute (Kansas Farm Animal and Field Crop and Research Facilities Protection Act, Kan. Stat. §47-1825 to §47-1828) criminalized entry into an agricultural facility "without the effective consent of the owner" if the intent is to "damage the enterprise." Animal Leg. Defense Fund v. Kelly, 2021 WL 3671122 (10th Cir. 2021). The Tenth Circuit struck down...

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Town esthetic zoning law does not violate the owner's free speech rights

The Eleventh Circuit ruled that a town could prevent an owner from building a home that had an architectural design out of keeping with surrounding homes. Burns v. Town of Palm Beach, 2021 WL 2325300 (11th Cir. 2021). The owner hoped to demolish his home and build one more than twice as large in a midcentury modern style rather than the typical Palm Beach beachfront...

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Rights of first refusal do not violate the rule against perpetuities if they must be exercised during the holder's lifetime

New York retains a version of the traditional rule against perpetuities. Like most states, it has classified options to purchase and rights of first refusal as "executory interests" subject to the rule against perpetuities. They therefore must vest (if at all) within 21 years of their creation, or within 21 years of the death of a named person in the conveyance or during the lifetime of a named person. The latter was the case in...

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Damages awarded tenant when landlord threatens to engage in illegal self-help eviction

The Maryland Supreme Court held that residential tenants can sue for damages if the landlord posts a notice telling them that they are being evicted. This constitutes a form of "nonjudicial self-help eviction" prohibited by state law, which requires landlords to use court eviction procedures to recover possession of the premises. State law would have allowed self...

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Two customers of hotel awarded $475,000 each for denial of equal services under West Virginia state public accommodation law

Erik Taylor and James Turner sought long term rentals at a hotel to work on a local pipeline project in West Virginia. When Taylor called the hotel to inquire about long term apartment rooms, he was told they were available, only to be told the opposite by manager Cindy Kay Adams when he arrived. She falsely told him that there was a waiting list for those rooms...

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