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Courts continue to get property law wrong when trying to apply it to the Fourth Amendment

As happened in the Supreme Court cases of Georgia v. Randolph, 547 U.S. 103 (2006) and United States v. Jones, 565 U.S. 400 (2012), the Sixth Circuit has used property law concepts to interpret the Fourth Amendment while misunderstanding what the property laws in force. US v. Jones held that the fourth amendment was violated when...

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No claim against neighbor for damage caused by overhanging healthy tree

The Massachusetts Supreme Judicial Court has reaffirmed the "Massachusetts rule" that owners cannot sue their neighbors for any damage caused by an overhanging healthy tree. Shiel v. Rowell, 101 N.E.3d 290 (Mass. 2018). The remedy is for the owner to trim the branches that encroach on his property before they cause damage. In upholding the established rule, the court rejected the "Hawaii rule" which imposes liability on the owner of the tree if it causes harm to neighboring property. See Whitesell v. Houlton,... Read more about No claim against neighbor for damage caused by overhanging healthy tree

Tree may be removed by owner of property where it first grew even if it grew to encroach on neighboring land and the neighboring owner does not want it removed

The Colorado Supreme Court has held that an owner may remove a tree on her own land even if it has grown over the borderline onto neighboring land even if the neighboring owner objects to removal of the tree. Love v. Klosky,2018 CO 20, 413 P.3d 1267 (Colo. 2018). In contrast, a border tree that was planted on the border itself becomes the...

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Court wrestles with the question of whether use of a pavement area without permission creates a prescriptive easement or adverse possession

When an owner uses a driveway or pavement area owned by a neighbor, and does with openly and without permission for the statutory period, does the owner get a prescriptive easement to use the area for the specific purposes to which the property was devoted or does the owner acquire full title to the area by adverse possession? The problem arises...

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Expectation of privacy voids government search of car in driveway without a warrant but not if parked in shared lot

The Supreme Court held that the Fourth Amendment precludes search of a car parked in the driveway to a home without a warrant in Collins v. Virginia,138 S. Ct. 1663 (U.S. 2018), while a number of other courts have held that there is no such expectation of...

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Can an owner or inhabitant of real property give police the right to search property when a co-owner or coinhabitant objects?

The Appeals Court of Massachusetts held that the police could search a closed suitcase in a common closet of a bedroom when given permission to do so by the defendant's coinhabitant. Commonwealth v. Hernandez,93 Mass. App. Ct. 172, 2018 Mass. App. LEXIS 48 (Mass. App. Ct. 2018). This ruling was based on traditional...

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Oregon Appeals Court affirms application of state public accommodations law to cake shop that refused to sell a wedding cake to a same-sex couple

In Klein v. Or. Bureau of Labor & Indus., 2017 Ore.App. LEXIS 1598 (2017), the Court of Appeals of Oregon affirmed an administrative finding that Sweetcakes by Melissa violated the state public accommodations law when it refused to sell a wedding cake to a same-sex couple. The case is similar to the Masterpiece Cakeshop case currently being considered by the US Supreme Court because the cake shop based its claim on the...

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Appurtenant easements cannot be used to access after-acquired land next to the dominant estate

The Massachusetts Land Court has reaffirmed and applied the traditional rule that an appurtenant easement cannot be used to access after-acquired property next to the dominant estate. Kent v. Roma III, Ltd., 2016 WL 6908191 (Mass. Land Ct. 2016). The court noted that the Restatement (Third) of Property (Servitudes) §4.11, cmt. b suggests that in exceptional cases, damages might be awarded rather than... Read more about Appurtenant easements cannot be used to access after-acquired land next to the dominant estate