November 2019

Texas statute terminates tenancy on death of tenant

Texas law now provides that a lease terminates when a tenant dies, if the tenant's estate gives notice to the landlord of the death and removes the deceased tenant's belongings within 30 days. 2019 Tex. H.B. 69, codified at Tex. Prop. Code §92.0162.

New York finally imposes a duty to mitigate damages on residential landlords

After years of conflicting case law, the New York legislature has formally codified the obligation of landlords to mitigate damages when a tenant breaches lease obligations by abandoning the premises. 2019 N.Y. Laws 36, §4, codified at N.Y. Real Prop. Law§227-e....

Constructed pond on mountainous terrain is an abnormally dangerous condition that renders owner strictly liable for damage caused when it ruptured after a storm and flooded the downhill property

The Montana Supreme Court held in Covey v. Brishka, 2019 MT 164, 445 P.3d 785 (Mont. 2019), that it was so obviously unreasonably dangerous to construct a 4.5 million-gallon...

Proceeds of partition by sale divided according to ownership interests without any credit given to co-owner whose funds were used to buy the property

Because the Texas partition statute requires the proceeds of a partition sale to be divided "according to [the owners'] just rights therein," joint tenants were entitled to 50% of the sale proceeds even though one of the co-owners had used his own funds to purchase the property. ...

Landlords and condo associations may be liable for discrimination by tenants or unit owners against other occupants if they are aware of the conduct and take no action to stop it

New regulations adopted in 2016 provide that a discriminatory housing practice includes "[f]ailing to take prompt action to correct and end a discriminatory housing practice by a third-party, where the person knew or should have known of the discriminatory conduct and had the power to correct it." 24 C.F.R. §100.7(a)(iii),...

Rules governing court-ordered rental payments while eviction litigation is pending

When a landlord sued to evict a tenant for failure to pay rent, the court ordered to make rental payments (for "use and occupancy") during trial. The Massachusetts Appeals Court held that before ordering such payments, the trial judge must hold a hearing to determine whether the payments should be reduced because of defective conditions in the property....

Yardwork may be sufficient to establish adverse possession

A Massachusetts court has held that hiring a landscaper to regularly maintain a strip of land is sufficient to constitute "possession" and can ripen into adverse possession once the statute of limitations runs. Miller v. Abramson, 131 N.E.3 863 (Mass. App. Ct....

Grant of permission to use driveway 31 years after initial use did not defeat prescriptive easement claim

Owners who traversed a road over neighboring land to get to a public way for more than 30 years established a right to a prescriptive easement despite a grant of permission by the owner of the servient estate that occurred long after the statute of limitations had run....

Commercial tenant right to lost profits and specific performance when landlord breaches lease obligation to make structural repairs

When a landlord breached a commercial lease obligation to make structural repairs to the property, the tenant was entitled to lost profits in addition to specific performance. Motsis v. Ming's Supermarket, Inc., 2019 WL 5704322 (Mass. App. Ct. 2019). The tenant had been...

Eighth Circuit issues confused ruling turning recourse mortgages into non-recourse mortgages

In a surprising development, the Eighth Circuit has held that mortgage debts are extinguished by foreclosure. CitiMortgage, Inc. v. Equity Bank...

Joseph William Singer

Bussey Professor of Law, Harvard Law School