July 2018

No sex discrimination or violation of privacy rights when trans students use bathrooms corresponding to their gender identity

The Third Circuit entertained and rejected a claim by cisgender students (whose gender identity corresponds to the gender assigned at birth) that their constitutional rights to privacy and their statutory rights to be free from sex discrimination were violated when trans students were allowed to use bathrooms corresponding to their gender identity....

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New York City and San Francisco vote to guarantee lawyers for some or all tenants facing eviction

New York City was the first city to guarantee lawyers to most low-income tenants facing eviction. Ashley Dejean, New York Becomes First City to Guarantee Lawyers to Tenants Facing Eviction, Mother Jones, Aug. 11, 2017.. When fully in force, the law will provide legal services to tenatns...

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Short term rentals (such as Airbnb) held not to violate a covenant prohibiting "commercial use" contrary to rulings of some other courts

Courts disagree about whether covenants prohibiting "commercial use" of real property apply to short term rentals like Airbnb. While some courts have said that such rentals do constitute commercial use, see, others have found the use not to be commercial but residential in nature. The Arkansas Supreme Court joined the courts that find Airbnb to be a residential rather than a commercial use of property....

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Landlord does not commit disability discrimination when refusing to allow a tenant to keep an aggressive dog

The Fair Housing Act requires landlords to avoid discrimination because of disability and to reasonably accommodate the needs of tenants by changing policies or practices to enable access to housing by persons with disabilities. However, accommodation is not required if it will pose a "direct threat" to the health or safety of others. This means that a landlord with a "no pets" policy must allow a tenant to keep an assistance animal unless doing so would...

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While real property held as tenancy by the entirety cannot be conveyed absent consent of both spouses, funds held in a bank account can be withdrawn by either spouse and, upon withdrawal, cease to be entireties property

The Supreme Court of Tennessee overruled prior cases and adopted the Arkansas approach that allows spouses that own bank account as tenants by the entirety are free to withdraw funds unilaterally (without consent of their co-owner) and that moneys so withdraw become the individual property of the spouse that withdrew the funds. This contrasts with real property which neither spouse may convey without the consent of the other....

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City has a constitutional due process obligation to notify an owner that the owner's property has been adjudicated to be blighted and subject to condemnation

Colorado statutes create a procedure for designating property as blighted and subject to condemnation and transfer either to public use or transfer to another owner. While the statute required notice when the city begins studying whether the property is blighted and when a public hearing is held, it did not require notice of a decision that the property is in fact blighted. The Tenth Circuit found this to violate the due process clause because the...

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Quitclaim deed does not negate good faith for purpose of adverse possession if the occupying parties did not actually know they were on land owned by another

Georgia is one of the few states that requires "good faith" in order to acquire property by adverse possession. That means that one cannot acquire property by adverse possession if one is knowingly occupying property of another. In McBee v. Aspire at Midtown Apts., L.P. 807 S.E.2d 455 (Ga. 2017), the question arose whether an owner was precluded from asserting...

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Courts may consider extrinsic evidence to interpret ambiguous easements

A Massachusetts appellate court had the difficult tasking of deciding whether a view easement prohibited all structures or only structures over eight feel high. MacLean v. Conservation Comm'n of Nantucket,(Mass. App. Ct. 2018). The easement language created a "view easement which prohibits any and all structures and/or vegetation with a height greater than eight (8’) feet from existing grade upon and over said lot." The court held that " the absence of a comma after the word 'structures' combined with the use... Read more about Courts may consider extrinsic evidence to interpret ambiguous easements