August 2020

Trees planted along border held to constitute a spite fence

The neighbors in the case of Game Place, Tranfield v. Arcuni-English, 215 A.3d 222 (Me. 2019), never got along with each other and quarreled when one owner cut dead limbs on his property to open up a view over the neighbor’s land. The neighbor threatened to erect a high fence to block the view, but instead hired a landscaper who installed 24 trees along the boundary...

Trump administration withdraws Obama era rules on “affirmatively furthering fair housing” (AFFH)

Although the Fair Housing Act (FHA) requires any government entity managing or receiving federal funds “affirmatively to further fair housing,” (AFFH), 42 U.S.C. §3608(e)(5), enforcement of this provision has been remarkably lax since the passage of the FHA in 1968.

The Obama Administration...

You cannot abandon real property

A helpful precedent can be found in a 1995 trial court ruling in Pennsylvania on the question of abandonment of real property. It is commonly noted that one can abandon personal property by acts that clearly show an intent to relinquish ownership. At the same time, Dean Eduardo Peñalver has shown environmental laws, among others, so heavily regulate the ability to discard personal property, that the “right to abandon” is more illusory than real. Eduardo M. Peñalver,...

Tenants have the right to receive guests

Affirming a traditional rule of law, the D.C. Court of Appeals held that tenants have the right to receive guests even over the objections of the landlord. Odumn v. United States, 227 A.3d 1099 (D.C. 2020). Defendant was charged with criminal trespass for violating a no-trespass order by the landlord but because he was on the property at the invitation of his aunt, who was a tenant...

Encroaching tree trunk and roots constitute a trespass under Montana law

The Montana Supreme Court reaffirmed the traditional rule that trees on one’s own land do not unreasonably interfere with the use and enjoyment of neighboring land even if they block the neighbor’s view and so are not nuisances Martin v. Artis, 290 P.3d 687 (Mont. 2012). However, the court held that it is a trespass for the tree’s roots to encroach on the neighbor’s land,...

Covid-19 temporary business closures do not effect regulatory takings

Several courts has addressed the question of whether temporary business closure orders to protect the public from Covid-19 constitutes regulatory takings of property. So far, the answer has been “no” as evident in a prominent decision of the Pennsylvania Supreme Court. Friends of DeVito v. Wolf, 227 A.3d 872 (Pa. 2020) (relying on Tahoe-Sierra Pres. Council, Inc....

Easement by necessity available if the difficulty or expense of using a legally available route renders the land unfit for its reasonably anticipated use

The Pennsylvania Supreme Court granted an owner an easement by necessity even though the land contained a small strip connecting the land to a public way. Bartkowski v. Ramondo, 219 A.3d 1083 (Pa. 2019) (applying the Private Roads Act, 36 Pa. Stat. §§2731-2891. It did so on the ground that access need not be strictly necessary to get to the land for an easement...

Horizontal wells are a trespass even if one has the right to drill for minerals on that land

In a complex and narrow holding, the West Virginia Supreme Court held that an oil and gas company had no right to drill horizontal wells from one parcel to another even if it owned mineral rights on the second parcel. EQT Prod. Co. v. Crowder, 828 S.E.2d 800 (W.Va. 2019). While a mineral owner has the right to use the surface of a tract in any way that is reasonable...

City can enforce ban on pit bulls against resident who needs emotional support animal when he had other dogs that might serve that purpose

The Nebraska Supreme Court faced a claim by a resident that he had a right under fair housing laws to a reasonable accommodation of a city law that prohibited residents from owning pit bulls due to their perceived dangerousness. Wilkison v. City of Arapahoe, 926 N.W.2d 441 (Neb. 2019). Because the resident had other dogs, and he could not prove that they could not serve...

Resolving conflicts between tenant with allergies and those needing support animals

In a case typical of a property law class, the Supreme Court of Iowa confronted a conflict between one tenant who needed an emotional support animal and another who was allergic to dogs. Cohen v. Clark, 945 N.W.2d 792 (Iowa 2020). The lease for both tenants contained a “no pets” clause. The question was whether the landlord had a duty under fair housing laws to make an exception...

Joseph William Singer

Bussey Professor of Law, Harvard Law School