Restraints on Alienation

Parcel is landlocked after 90 year easement ends

Most courts granted an easement by necessity when an owner severs its land and leaves a parcel without access to a public road. The easement allows passage over land that had been connected to the landlocked parcel before it became landlocked. The courts differ on whether this is a mandatory rule of law (owners are not allowed to create land to which there is no access) or a default rule based on the implied intent of the parties, in which case the...

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Will devising home to testator's four children and his widow that allowed her to "remain" in the home "for as long as she desires" gave her a tenancy in common interest with protection from removal by partition

In an older case that came to my attention, the Massachusetts Supreme Judicial Court held that a will that gave a widow the right to "remain" in the home "for as long as she desires" did not create a life estate when her interest was shared with the decedent's four children. Hershman-Tcherepnin v. Tcherepnin, 891 N.E.2d 194 (Mass...

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Possibility of reverter or right of entry cut off after 30 years

Massachusetts law sets a thirty year limit to possibilities of reverter following a fee simple determinable or rights of entry following a free simple subject to condition subsequent. Mass. Gen. Laws ch. 184A, §7. This contrasts with the 90 year limit for executory interests. Mass. Gen. Laws ch. 190B, § 2-901. The 30 year limitation was recently applied in ... Read more about Possibility of reverter or right of entry cut off after 30 years

Section 8 (housing voucher) tenants cannot be evicted without cause even if their lease term has expired and the landlord has opted out of the housing assistance program

The Third Circuit has ruled that the federal statute, 42 U.S.C. §1437f(t)(1)(B), that gives Section 8 (housing voucher) tenants the right to "remain in their housing developments, even after their landlord has opted out of the federal housing assistance program," gives them the right to stay unless just cause can be shown to evict have the right to remain even if the lease term has expired. Hayes v. Harvey, 2018 U.S. App. LEXIS 24848 (3d... Read more about Section 8 (housing voucher) tenants cannot be evicted without cause even if their lease term has expired and the landlord has opted out of the housing assistance program

Permanent rights of refusal for tenancy in common interests owned by family members held void as unreasonable restraints on alienation

A Massachusetts court has held that permanent rights of refusal applying to tenancy-in-common interests were void as unreasonable restraints on alienation. DiSchino v. Delanson Circle Holding, 2018 Mass. Super. LEXIS 67 (Mass. Super. Ct. 2018).

The court noted that the state had a...

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Retroactive restraints on leasing in homeowners associations

The courts continue to divide over the question of whether it is fair to allow homeowners associations to impose retroactive restraints on leasing on existing owners who purchased with no notice of the restriction. While most states allow this, a few do not, and the Restatement (Third) of Property (Servitudes) §6.10(2), §6.10 cmt. g, takes the position that such major changes in property rights can only be accomplished prospectively unless there is a unanimous vote to alter those rights.

The Idaho Supreme Court recently adopted what appears to be the majority...

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Distinguishing between a right of first refusal and a restraint on alienation

The Massachusetts Land Court decided an interesting case interpreting a conveyance that reads like a right of first refusal but can be interpreted as a broader restraint on alienation giving discretion to a nonprofit entity to refuse absolutely to any transfer of the land. Gottlieb v. Girl Scouts of E. Mass., 2016 WL 3523859 (Mass. Land Ct. 2016). The conveyance stated that "...

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