Property Law Developments

Doctrine of implied reciprocal negative servitudes only applies within the area intended to be covered by the general plan of uniform development

In Walters v. Colford, 900 N.W.2d 183 (Neb. 2017), a developer sold 14 lots with identical covenants restricting the property to one single-family two-story house and garage. The developer then solder a five-acre adjacent parcel without the covenants. The Nebraska Supreme Court held that the five-acre parcel was not part...

Easement by necessity can be widened and its uses can be expanded

The Virginia Supreme Court held in Palmer v. R.A. Yancey Lumber Co., 803 S.E.2d 742 (Va. 2017) that an easement by necessity is not limited to uses existing at the time the easement was created by severance of the parcels creating a landlocked parcel with a need to traverse the servient estate to obtain access to the dominant...

Defeasible easements are enforceable if clearly created

In Majestic Oaks Homeowners Ass’n v. Majestic Oaks Farms, Inc., 530 S.2d 3 435 (Ky. 2017), covenants for a residential subdivision creates easements that were subject to abolition by a supermajority vote of the homeowners. The Kentucky Supreme Court saw no reason not to allow easements to be made...

Landowner who reasonably relies on zoning administrator’s advice cannot be required to remove a noncomplying structure

In re Langlois/Novicki Variance Denial, 2017 VT 76, 2017 Vt. LEXIS 96, 2017 WL 3662437 (Vt. 2o17), the Vermont Supreme Court held that an owner cannot be compelled to remove a structure that violates the zoning law when the owner built the structure on the basis of advice given by the zoning admininstrator on its legality....

Vested right to keep a garage built on the basis of an erroneously granted special permit

In Board of Supervisors of Richmond County v. Rhoads, 803 S.E.2d 329 (Va. 2017), the Virginia Supreme Court ruled that an owner who built a garage that violated the zoning law could maintain that use even though the permit was erroneously granted because the owner had invested in reasonable reliance on the permit grant.

An easement granted by a tenant ends when the tenancy terminates

In Bedard v. City of Boise City, 403 P.3d 632 (Idaho 2017), the court recognized that a tenant who is empowered to grant an easement of access to property has no power to make that easement last beyond the term of the tenant’s rights in the property. Once the tenancy terminates, so does the easement. The... Read more about An easement granted by a tenant ends when the tenancy terminates

Courts debate whether short term rentals (like Airnbnb) violate restrictive covenants limiting property to “residential uses”

Some courts hold that short term rentals (such as Airbnb rentals) violate covenants that restrict the property to “residential use,” finding short-terms rentals to be closer to hotel use and thus commercial in nature. ...

New Orleans owners prevail on a takings claim against the US Army Corps of Engineers for taking their property without just compensation by the negligent design of a navigational channel

This is an older case now but worthy of being noted. The U.S. Court of Federal Claims held that the U.S. Army Corps of Engineers effected a taking of property without just compensation when it designed and maintained a navigational channel known as the Mississippi River Gulf Outlet (MRGO) in a manner that significantly increased storm surge and flooding on owners’ properties during...

Supreme Court will review Williamson County decision requiring exhaustion of state remedies before bringing a takings claim in federal court

The Supreme Court has taken certiorari in a case that will decide whether to affirm or overrule the holding of Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), which held that a property owner must exhaust state remedies before bringing a takings claim in federal court. Because proceedings in state court can be appealed to the Supreme Court, that rule means that the only way to get federal court review of a state takings claim is by getting the Court to accept review on a state supreme court decision, thereby precluding federal input into...

Legal questions about landlord liability when one tenant harasses another

Is a landlord liable for breach of the covenant of quiet enjoyment if one tenant harasses another and the landlord does not intervene in some way, either by trying to resolve the dispute or by evicting the harassing tenant? To answer this question we must distinguish two types of legal claims. In the first type of claim, the victim of the harassment claims “constructive eviction” and asks to be relieved of her rental obligations by moving out before the end of the term. In the second type of claim, the tenant sues the landlord for monetary damages for failing to protect her...

Joseph William Singer

Bussey Professor of Law, Harvard Law School