Alistair Edwards—Senior Attorney, National Legal Research Group

            As a result of the COVID-19 public health emergency, various states and municipalities around the country have imposed moratoriums on evictions and prohibited landlords for a certain period of time from filing eviction complaints for possession of real property. For example, on March 17, 2020, the Council of the District of Columbia enacted a variety of measures to prevent the spread of COVID-19 and protect District residents. Included among these measures was a moratorium on evictions "during a period of time for which the Mayor has declared a public health emergency."

            In District of Columbia v. Towers, 21-CV-34, 2021 WL 4617981 (D.C. Oct. 7, 2021), the District of Colombia's highest court considered whether this moratorium violated the landlords' due process right to access the courts. The case came to the appellate court after the District's lower court (the Superior Court) held that the moratorium on eviction filings for the duration of the public health emergency was unconstitutional. Specifically, the lower court held that the moratorium infringed on property owners' fundamental right of access to the courts because "[a] landlord's interest in summary resolution of its claims against a tenant has a constitutional basis." The District of Columbia appealed the lower court’s decision.

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Trish Sifka—Senior Attorney, National Legal Research Group

        An English Judge and Jurist, Sir Edward Coke, declared in 1604: “[T]he house of everyone is to him as his Castle and Fortress as well for defence against injury and violence, as for his repose[.]” This famous quote from the Court of King’s Bench has been simplified to essentially mean that “every man’s home is his castle” and, thus, deserves special protection. Sir Coke stated this as part of his ruling in Peter Semayne v. Richard Gresham & Estate of George Berisford. Gresham and Berisford were joint tenants of a house in Blackfriars, London. Berisford died while still owing a debt to Semayne, so Semayne sued for writ of attachment against the home.

        In Virginia, real property held as tenancy by the entirety is especially sacrosanct. Where a tenancy by the entirety in the fee simple is created, the property is completely immune from the claims of creditors against either husband or wife alone. Rogers v. Rogers, 257 Va. 323, 512 S.E.2d 821 (1999); Pitts v. United States, 242 Va. 254, 408 S.E.2d 901 (1991). “The tenancy by the entirety may be severed only by mutual consent of the spouses or by divorce.”  In re Bunker, 312 F.3d 145, 151 (4th Cir. 2002); see also In re Sampath, 314 B.R. 73, 92 (Bankr. E.D. Va. 2004) (“The tenancy by the entirety estate retains its full vitality in Virginia.”). Accordingly, a spouse cannot waive contest to forfeiture of real property held as tenancy by the entirety in a plea agreement because that would result in severing of the title without the other spouse’s consent.

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Brad Pettit—Senior Attorney, National Legal Research Group

            In a very recent ruling that was consistent with prior Virginia state court decisions that favor residential landlords in cases involving personal injury suits by tenants against landlords, a federal district court sitting in Virginia dismissed wrongful death and intentional infliction of emotional distress ("IIED") actions by the plaintiff, a mobile home owner, against a mobile home park lot owner that arose when a decaying tree fell on the plaintiff's mobile home and crushed her son to death. Darlington v. Harbour E. Vill. LLC, No. 3:20cv157-HEH, 2020 WL 3979664 (E.D. Va. July 14, 2020) (slip copy) (only the Westlaw citation is currently available), appeal filed (4th Cir. Aug. 11, 2020). Even though there was evidence that prior residents in the mobile home park had warned the lot owner at least three times about the decaying tree and the dangers that it posed, the Darlington court ruled that, in the absence of a statutory or common-law duty on the part of the mobile home park lot owner/lessor to the mobile homeowner/lot lessee to maintain a safe condition of the lot, the plaintiff could not bring a wrongful death claim against the lot lessor:

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Brad Pettit, Senior Attorney, National Legal Research Group

     An unreported mid-level appellate decision by a Pennsylvania Superior Court illustrates that courts take a dim view to a residential landlord's attempt to defend against breach of covenant of quiet enjoyment and constructive conviction claims against him or her by a tenant by asserting that the parties' dispute stemmed from a good-faith mistake or misunderstanding. In Grodin v. Farr, No. 45 WDA 2019, 2020 WL 919200 (Pa. Super. Ct. Feb. 26, 2020) (nonprecedential decision), the court rejected a landlord's claim that he did not breach the covenant of quiet enjoyment or constructively evict his tenants by changing the locks on their unit because he mistakenly assumed that the tenants had received a key to the back door from the previous tenants and could still gain access to the leased premises.

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Alistair Edwards—Senior Attorney, National Legal Research Group

     It is not uncommon for an individual to purchase a specific cemetery gravesite or gravesites many years in advance with the plan for family members to all be buried in the same area. That was the exact plan of the plaintiff, Kathy Salyer. In 1982, after the death of her first husband, Salyer purchased four contiguous gravesites in the cemetery comprising lot 14. Later that year, Salyer purchased an additional gravesite (Gravesite 15) contiguous to lot 14. Salyer possessed a Certificate of Ownership for each purchase. Salyer intended to bury her mother in Gravesite 15 and to have herself buried in the empty site between her first and second husbands. Despite Salyer's plan, she discovered in 2014 that a stranger, Mr. Johnson, had been buried in Gravesite 15. The cemetery acknowledged that it had made a mistake and had sold Gravesite 15 twice, first to Salyer and then to Mr. Johnson's family. Salyer's purchase of Gravesite 15 had not been entered in the cemetery's records, causing the cemetery's sale agent to sell the site twice.

     Salyer filed an action against the cemetery, seeking an order to have the cemetery reinter the decedent, Mr. Johnson, who had been mistakenly buried in the gravesite. Mr. Johnson's daughter intervened in the action, objecting to the removal of her father's body from the gravesite.

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Matthew McDavitt—Senior Attorney, National Legal Research Group

            Any co-owner possessing an interest in realty has a right, under common and/or statutory law, to the partition of such realty, as no owner may be forced to remain in co-ownership. Physical partition is preferred and should be made where such realty may be divided without substantial prejudice to the other co-owners. Partition may be made over the objections of the other co-owners, and the fact that the other owners possess property or use interests cannot prevent partition. Fesmire v. Digh, 385 S.C. 296, 683 S.E.2d 803 (Ct. App. 2009).

            In some states, if the realty sought to be partitioned constitutes an owner's constitutionally or statutorily protected homestead, then such homestead status is an affirmative defense to partition, see Morris v. Figueroa, 830 So. 2d 692 (Miss. Ct. App. 2002); conversely, other jurisdictions hold that a cotenant's homestead interest in the property does not preclude partition, premised upon the absolute right of co-owners to exit co-ownership at will, see Wisner v. Pavlin, 2006 SD 64, 719 N.W.2d 770.

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Alistair Edwards—Senior Attorney, National Legal Research Group

            Dogs barking incessantly can result in a nuisance lawsuit between neighbors. For example, in Allen v. Powers, 64 Misc. 3d 171, 97 N.Y.S.3d 837 (City Ct. 2019), the plaintiff sued her neighbors claiming that their two German Shepherds barked incessantly and the dogs' constant barking at all hours interfered with the plaintiff’s right to quiet use and enjoyment of her property. This was a classic private nuisance claim.

            However, the interesting twist in that case was that the defendant dog owners counterclaimed, contending that the plaintiff had repeatedly called the municipal authorities with specious complaints. As alleged in the counterclaim, the plaintiff’s efforts were an attempt to make the defendants move or have their landlord evict them.

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Alistair Edwards—Senior Attorney, National Legal Research Group

            Short-term vacation rentals have become increasingly popular and easier to obtain with the advent of websites such as Airbnb. Now, an owner can simply use such a website to attract potential renters and lease the property to vacationers on a very short-term basis. Some of these rentals can be as short as a one- or two-day rental. However, owners of residential properties that are subject to restrictive covenants are often prohibited from using their properties for commercial activities, uses, or purposes. Does this include renting the property to vacationers on a short-term basis?

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Brad Pettit, Senior Attorney, National Legal Research Group

            A decision by the Supreme Court of Idaho illustrates the difficulties that a guest of a residential tenant may face when trying to hold the tenant's landlord liable for injuries sustained by the guest when the guest was bitten by the tenant's dog. See Bright v. Maznik, 162 Idaho 311, 396 P.3d 1193 (2017). In Bright, a guest of the tenants advanced several theories of liability in her suit against the tenants' landlords: negligence per se under Idaho's vicious dog statute, breach of duty to protect the guest from an animal known to have vicious tendencies, common law negligence, voluntary assumption of duty, and premises liability. None of these claims were successful, primarily because the plaintiff failed to make the requisite factual showings that the landlords either "knew" about or "harbored" a vicious animal on the premises.

            For example, the Bright court found that the landlords could not be charged with "harboring" the tenants' dog on the property, as required under the vicious dog statute, regardless of whether the dog was actually "vicious." Id., 396 P.3d at 1197. The Bright court reasoned that since the term "harbor," as it is used in the vicious dog statute, "contemplates protecting an animal, or undertaking to control its actions," the landlords could not be charged with negligence per se under the statute because there was no evidence in the record that the landlords "received clandestinely and concealed the [tenants'] dog" or "had an animal in [their] keeping." Id. (citations omitted).

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