Property Law Developments

Mall owners liable for commercial tenant's sales of counterfeit sunglasses

The Eleventh Circuit has held a commercial landlord liable for its tenant's sales of counterfeit sunglasses when it knew of those sales and failed to stop them. Luxottica Group, S.p.A. v. Airport Mini Mall LLC,  2019 U.S. App. LEXIS 23555 (11th Cir. 2019). The claim was for contributory trademark infringement under the Lanham Act, 15... Read more about Mall owners liable for commercial tenant's sales of counterfeit sunglasses

No easement by necessity to access fire escape

No easement by necessity exists that would allow a condo owner to pass through another condo to reach a fire escape. Nor was there an express easement even though the condo documents gave the unit owner the right to use the fire escape. Chamberlain v. Badaoui,  95 Mass App. Ct. 670, 2019 Mass. App. LEXIS 93, 2019 WL 3334700 (Mass. App. Ct. 2019). No express right to go through the neighboring unit to get to the fire escape was created and the court refused to create one by... Read more about No easement by necessity to access fire escape

Easement owner who exceeds the scope of the easement can obtain new use rights by prescription

Owner of an easement of passage that also uses the land without permission to park a car, use the area as a yard and maintain the lawn exceeds the scope of the easement and if done for the statutory period can obtain an easement by prescription for the longstanding uses. Savoie v. Zaniboni,  27 LCR 165, 2019 Mass. LCR LEXIS 58, 2019 WL 1511101 (Mass. Land Ct. 2019). The court applies the traditional presumption that uses of another's land are nonpermissive unless evidence of permission is present.

Federal court allows public accommodation to refuse to create custom videos of same-sex weddings

In a 2 to 1 vote, the Eight Circuit has held that the First Amendment prohibits a state from enforcing its public accommodations law if it requires videographers to create custom videotapes of same-sex weddings even though they provide this service to opposite-sex weddings. Telescope Media Group v. Lucero, 2019 U.S. App. LEXIS 25320 (8th Cir. 2019). Because the videos will be edited and posted on the videographer's website, the majority accepted the defendant's argument that they would convey a message of support for same-sex marriage contrary to the... Read more about Federal court allows public accommodation to refuse to create custom videos of same-sex weddings

Section 8 recipients denied right to file §1983 suit for wrongful termination of benefits

The Eleventh Circuit has overruled Basco v. Manchin, 514 F.3d 1177 (11th Cir. 2008) and held that federal law does not empower housing choice voucher (Section 8) holders to bring civil rights claims under 42 U.S.C. §1983 to contest wrongful termination of benefits by a housing authority. Yarbrough v. Decatur Housing Auth....

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Trespass to use mineral rights one property to extract minerals from a neighboring parcel.

The West Virginia Supreme Court held that a mineral owner or lessee that has the right to use the surface of one parcel to extract minerals or oil or gas from that parcel does not have the right to use that access to take minerals from neighboring parcels whose owners conferred no such rights. EQT Production Co. v. Crowder,2019 W. Va....

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Civil law or natural flow rule interpreted to allow artificial drainage of subsurface water

While the "free use" rule generally allows an owner to expel surface and subsurface water without liability, the civil law or "natural flow' rule imposes liability on an owner who artificially captures and expels such waters, especially if done in a direction different from the watercourse or the natural direction of water flow. However, interpreting a state statute codifying the civil law rule, (S.D. Codified Laws §...

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Owner seeking special permit has burden of showing it will not harm neighbors

A zoning board granted a special permit to au auto body shop after placing the burden of proof on neighbors to show that the shop would release harmful chemicals into the air. The Court of Appeals reversed because the owner seeking the special permit (the auto shop) should have the burden of proving that its operation would not significantly decrease air quality. Fish v. Accidental Auto Body, Inc.,2019 WL 2236279, 95 Mass.App.Ct. 355(Mass. App. Ct. 2019). In addition, the Court found that there was evidence that... Read more about Owner seeking special permit has burden of showing it will not harm neighbors