Property Law Developments—Joseph William Singer

The Supreme Court has taken certiorari in a Fifth Circuit case to address the question of whether disparate impact claims are available under the Fair Housing Act (FHA), 42 U.S.C. §§3601 et seq. Tex. Dep’t of Hous. & Comty. Affairs v. The Inclusive Communities Project, Inc., 135 S.Ct. 46 (2014), on appeal from The Inclusive Communities Project, Inc. v. Tex. Dep’t of Hous. & Comty. Affairs, 747 F.3d 275 (5th Cir. 2014). All federal Circuit Courts to address the issue have found such claims to be available and the Department of Housing and Urban Affairs has fairly recently promulgated a regulation defining the test for disparate impact claims under the FHA. 24 Code Fed. Reg. Part 100, §§100.5 to 100.500.

The Michigan Supreme Court overturned a lower court ruling that had held it to be unconstitutional for a city to demolish a structure that the city believes is financially unreasonable to repair even if the owner claims to want to make the repairs. The court held that it does not constitute a deprivation of due process of law to require the demolition given the fact that the owner allowed the property to become dilapidated and the city could rationally believe that demolition was the best remedy to remove the public nuisance. Bonner v. City of Brighton, 848 N.W.2d 380 (Mich. 2014).

The Vermont Supreme Court has adopted the rule promoted by the Restatement (Third) of Property (Servitudes), §4.8(3), allowing the owner of a servient estate to relocate an easement if this does not reduce the utility of the easement to the owner of the dominant estate. Roy v. Woodstock Cmty. Trust, Inc., 94 A.3d 530 (Vt. 2014). The case concerned an underground easement for water lines.

The court also held that the dominant estate owner was entitled to build a housing complex and that this development did not exceed the scope of a right-of-way easement even though it had been originally used only by a church.

A Hawai`i court has recognized an easement by necessity over government land when the landlocked parcel was separated from land belonging to the state. Malulani Group, Ltd. v. Kaupo Ranch, Ltd. 329 P.3d 330 (Haw. 2014). The court held that the intent of the parties determines whether an easement exists over remaining land of the grantor to ensure access to a public road from an otherwise landlocked parcel. The court also held that no statute of limitations bars assertion of an easement by necessity.

While the US Constitution’s free speech provisions in the first amendment apply only to state action, both California and New Jersey have interpreted their state constitutions to grant individuals free speech rights in some cases in relation to private parties. In both states, citizens have the right to distribute leaflets in shopping centers. In Dublirer v. 2000 Linwood Avenue Owners, Inc., 2014 WL 6777311 (N.J. 2014), a resident wanted to run for a seat on the Board of Directors of the coop and sought to distribute materials relevant to his campaign and he was prevented from doing so by the coop board. The Supreme Court of New Jersey held that the coop rule banning soliciting and distributing written materials in the building was unreasonable and a violation of the resident’s state constitutional free speech rights. The ruling reaffirmed and expanded on the rulings in earlier cases that protected free speech rights of owners in common-interest communities when those owners wanted to post signs. See Mazdabrook Commons Homeowners’ Ass’n v. Khan, 46 A.3d 507 (N.J. 2012); Comm. for a Better Twin Rivers v. Twin Rivers Homeowners Ass’n, 929 A.2d 1060 (N.J. 2007).

New York state has adopted a statute that defines procedures for ensuring that children conceived after the death of their biological parents can inherit property, receive Social Security survivor benefits, and benefit from trusts established for them. The law applies to  ova or sperm that are stored for use after the death of a biological parent, usually when that parent knows his or her lifespan is limited. The law requires a written declaration of the purpose for which the biological material was stored, recording of the document in public records, and requires the genetic child to be in utero within 24 months or born within 33 months of the death of the genetic parent. read article