Property Law Developments

Short-term rentals do not violate “residential use only” covenant

The Mississippi Supreme Court has held that short term rental of property is not a commercial use that would violate a covenant limiting land to residential purposes. Lake Serene Prop. Owners Ass’n v. Esplin, 334 So.3d 1139 (Miss. 2022). There has been some disagreement among state courts on this question because the use of property as an Airbnb or other short term...

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Homeowners Association architecture regulations must be reasonable and authorized by governing documents

The Nevada Supreme Court adopted §6.7 and §6.9 of the Restatement (Third) of Property (Servitudes) and held that restrictions on construction (including architectural review committees) are only valid if owners are on notice of them and they exercise their powers “reasonably.” Moretto Trustee of the Jerome F. Moretto 2006 Trust, v. ELK Point Country Club...

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Massachusetts law denies adverse possession of property owned by the Commonwealth or its municipalities

When a dispute arose between the Cambridge Housing Authority and its neighbors over the location of a fence, the Massachusetts Land Court applied a statute that denies adverse possession of government-owned property, Mass. Gen. Laws ch. 260, §31, when that property is held for public purposes. Some other states have done away with sovereign immunity from adverse possession claims but this case reminds us that some states have the older immunity rule. Vasquez v....

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City repeal of gas drilling permits held to be a Lucas taking

A Texas court has ruled that a city ordinance prohibiting all drilling of gas wells in the city took the property of a company that had leased land for gas drilling purposes and been given permits in the past to do so. The company claimed that the denial of new permits to drill and the ordinance permanently prohibiting drilling rendered their lease without any value. The court agreed since the lease was limited to a use that was now illegal. No finding was made on...

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Fair Housing Act claim available for racial harassment by one owner against another but no claim against the homeowners association itself even though the harassers were president of the HOA

When an African American couple bought property and were subject to taunts and told they were unwelcome by other owners, they had claims against those owners under the Fair Housing Act both by “making housing unavailable” under 42 U.S.C. §3604(a), and “interfering” with others in the “enjoyment of… right[s] granted by [the Fair Housing Act].” Watters v. Homeowners’ Ass’n at the Preserve at Bridgewater, 48 F.4th779 (7th Cir. 2022). However, even... Read more about Fair Housing Act claim available for racial harassment by one owner against another but no claim against the homeowners association itself even though the harassers were president of the HOA

Broker remarks to prospective tenant that landlord might object to housing voucher approval process violate state law that prohibits statements that indicate a preference to refuse to rent to such tenants

The Supreme Court of Connecticut has held that it violates state statutes that prohibit discrimination against housing voucher recipients to indicate a preference not to rent to tenants whose rental payments are subsidized by government. Lopez v. William Raveis Real Est. Inc., 272 A.3d 150 (Conn. 2022). While there was no statement of an intent to discriminate, the state law does not require proof of intent; rather it prohibits making any statement that indicates a preference not to rent to someone because... Read more about Broker remarks to prospective tenant that landlord might object to housing voucher approval process violate state law that prohibits statements that indicate a preference to refuse to rent to such tenants

Restraint on partition or conversion of joint tenancy interest to tenancy in common is an invalid restraint on alienation

A deed prohibiting joint tenants from suing for partition or converting their joint tenancy interest into a tenancy in common without the consent of the other owners was an invalid restraint on alienation and unenforceable. Mindock v DuMars, 2022 WL 1410017, 2022 US App LEXIS 12044 (10th Cir 2022). The court did not accept the argument that the restraint was reasonable as a...

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Real estate purchase and sale agreement enforceable against the estate of the seller

A contract of sale signed by the seller could be enforced by the buyer against the estate of the seller when the seller died after signing the contract but before the closing. Liberty Hill, LLC v. Fernald (Mass. Super. Ct. 2022) (Civ. Action No. 2281CV00480). State statutes provided for specific performances of real estate contracts when the owner dies prior to conveyance. Mass. Gen. Laws ch. 204, §1.

Conflicting rulings on whether testers have standing under the Americans with Disabilities Act (ADA)

The First Circuit has held that a tester may bring a lawsuit against a hotel for an inaccessible website even if the tester never had an intention of booking a room at the hotel. Laufer v. Acheson Hotels, LLC., 50 F.4th 259 (1st Cir. 2022). The Eleventh Circuit agrees, Laufer v. Arpan LLC, 29 F.4th 1268 (11th Cir. 2022), but the Second, Fifth, and Tenth Circuits... Read more about Conflicting rulings on whether testers have standing under the Americans with Disabilities Act (ADA)