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May 2023

Municipal prohibitions on short-term rental of property not a taking of property under the fourteenth amendment

Two federal courts have held that municipal ordinances that prohibit or regulate the ability of owners to rent their properties to short-term tenants did not unconstitutionally take the owners' property rights without just compensation. Nekrilov v. City of Jersey City, 45 F.4th 662 (3d Cir. 2022);...

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North Dakota Supreme Court finds statutorily-authorized fracking to constitute a taking of property without just compensation

Fracking involves injecting fluids under the earth through pores (openings in the earth) that may extend to neighboring property. Such physical invasions, the North Dakota Supreme Court held, are takings of property that cannot be statutorily-mandated without just compensation. Northwest Landowners Ass'n v. State, 978 N.W.2d 679 (N.D. 2022).

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Vermont Supreme Court denies reserved easements implied from prior use unless they are strictly necessary

While owners can generally get an easement by necessity to obtain access to landlocked land over remaining lands of the grantor, most states also recognize easements implied from visible, continuous prior use before the parcels were separated if the access is helpful ("reasonably necessary") to the dominant estate. The prior use doctrine rests on the right to reform a deed because of mutual mistake.

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