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Property Law Developments

Neighbor cannot compel city to enforce zoning ordinance

The Florida Supreme Court has held that cities cannot be compelled to enforce zoning laws. In City of West Palm Beach v. Haver, 2021 Fla. LEXIS 1572 (Fla. 2021), a neighbor sought a court order to force the city to enforce a zoning prohibition on a group home. The court ruled that it would exceed the legitimate role of the courts to order city officials to comply with local zoning laws when the decision in question is one that has traditionally been discretionary on the part of public officials... Read more about Neighbor cannot compel city to enforce zoning ordinance

Foreclosure sale cannot be set aside even though the foreclosure price was only nine percent (9%) of fair market value

In a demonstration of the broken nature of our foreclosure system, the Alaska Supreme Court held in Thomas v. Joseph P. Casteel Trust, 496 P.3d 403 (Alaska 2021), that a foreclosure was lawful even though the buyer at foreclosure paid a mere nine percent (9%) of the fair market value of the property. Only if there were procedural irregularities could the foreclosure be set aside. This type of case makes the owner’s equity vanish into thin air and is inconsistent with the historical policies... Read more about Foreclosure sale cannot be set aside even though the foreclosure price was only nine percent (9%) of fair market value

Washington Supreme Court holds racial covenants in public records must be retained but can be marked void

Construing a state statute, Wash. Stat. §49.60.227, the Washington Supreme Court held that racial covenants cannot be completely excised from public records. The court determined that the statute allowed a court order to be filed with the recorded title voiding the covenant but did not authorize excising the covenant from the public records entirely. This result occurred despite the fact that the statute provided that courts should “strik[e] the void provisions from the public records.” Wash. Stat. §49.60.227(1)(b). The statute did provide that the original record “shall be separately... Read more about Washington Supreme Court holds racial covenants in public records must be retained but can be marked void

Covenants cannot be amended retroactively if this violates homeowners’ legitimate expectations

he Arizona Supreme Court has limited the powers of homeowners associations to amend covenants retroactively when those amendments would unfairly surprise buyers who were not on notice of them when they bought their properties. Kalway v. Calabria Ranch HOA, LLC, 506 P.3d 18 (Ariz. 2022). In this case, the homeowners association adopted new restrictions...

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Covenants that prohibit all leasing restrictions include short-term rentals

The Texas Supreme Court has held that covenants that prohibit all restrictions on leasing cannot prohibit short term rentals, finding that a lease is still a lease if it only lasts for one day. JBrice Holdings, LLC v. Wilcrest Walk Townhomes Ass’n, Inc., 2022 WL 1194364 (Tex. 2022). In addition, short-term rentals were held not to be “commercial” or “non-residential uses.” The court noted that the covenants provided that they could be retroactively amended through a 75% vote of the owners.

Covenants can burden future interests, at least where environmental protection is concerned

A California appellate court interpreted a conveyance to include both a fee simple subject to condition subsequent with a right of entry in the grantor and a conservation easement limiting the property as “natural open space.” While it is not clear the court interpreted the conveyance correctly, it is significant that the court found that an easement (or covenant) can coexist with a right of entry. If structured correctly, such a conveyance would mean that a grantor can both require title to be forfeited to the grantor (or its assignees) if the current possessor violates a conservation... Read more about Covenants can burden future interests, at least where environmental protection is concerned

Tribal title can only be extinguished by federal, not state, law

In a reaffirmation of longstanding doctrine, a federal court in New York has applied the Trade and Intercourse Act of 1790, as amended, 25 U.S.C. §177 (the “Nonintercourse Act”), to hold that the title to land of the Canadian St. Regis Band of Mohawk Indians retains title to certain lands in the state of New York since the transfer of those lands from the tribe to the state of New York was never ratified by Congress as required by the Nonintercourse Act. Canadian St. Regis Band of Mohawk Indians v. New York,... Read more about Tribal title can only be extinguished by federal, not state, law

No prescriptive easements for light and air

Re-affirming a longstanding common law rule, a Maryland court has held that land use that interferes with a neighbor’s desire for unobstructed light and air neither constitutes a nuisance nor can the neighbor acquire such rights by prescription. Gestamp Wind N. Am., Inc. v. All. Coal, LLC, 2021 WL 3612747 (Md. Ct. Spec. App. 2021). A neighbor whose wind turbines were losing effectiveness because the neighbor was piling coal remains on its property could not get a remedy for the change in wind to run... Read more about No prescriptive easements for light and air

Recorded covenants can run with lands the grantor does not own if owners of those lands ratify the covenants

The Utah Supreme Court has held that a landowner who recorded covenants on land he did not own were potentially binding on subsequent owners of that land if they engaged in acts that ratified the covenants (for example, by making payments to the homeowners association (HOA)). WDIS, LLC, as Trustee of MDMG Trust, dated Apr. 25, 2016 v. Hi-Country...

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