Robert Westendorf—Research Attorney

      Ninety-four-year-old Geraldine Tyler lived in a condominium for more than a decade before moving to a senior community in 2010. Tyler v. Hennepin County, 143 S. Ct. 1369, 2023 U.S. LEXIS 2201, at *5-6 (May 25, 2023). Nobody paid the property taxes on the condo, and by 2015, $15,000 in unpaid taxes and penalties was owed. 2023 U.S. LEXIS 2201, at *6. Hennepin County seized the property and sold it for $40,000, thus extinguishing the $15,000 debt. If this had happened in one of 36 states, Tyler would have gotten the excess $25,000 back. Id. at *14. However, when property is sold due to the failure to pay taxes in Minnesota, proceeds in excess of the tax debt remain with the county. Id. at *5.

      Ms. Tyler brought suit, alleging violations of the Takings Clause of the Fifth Amendment and the Excessive Fines Clause of the Eighth Amendment. Id. at *6. The lower courts ruled against Ms. Tyler. The Supreme Court reversed. Id. at *6-22. Writing for a unanimous court, Chief Justice Roberts determined that Ms. Tyler had standing. Id. at *8. The Court then stated that the question was whether the $25,000 is “property under the Takings Clause, protected from uncompensated appropriation by the State.” Id. at *9. In determining what is property, the Court would look to traditional property law principles, historical practice, and the Court’s precedents. Id.

Brad Pettit—Senior Attorney, National Legal Research Group

            A recent decision by the District of Columbia Court of Appeals indicates that since a judgment for the debt of only one spouse does not attach to property held by the judgment debtor and his or her spouse as tenants-by-the-entireties, the nondebtor spouse takes the subject property free from a judgment lien against the debtor spouse's property even if the spouses’ divorce and the former couple's divorce decree and property settlement agreement calls for the debtor spouse to transfer to the nondebtor spouse his or her share of the couple's tenancy-by-the-entireties property. Blount v. Padgett, 261 A.3d 200 (D.C. 2021). In Blount, the court relied upon the rule that “[a]lthough the characteristics of a tenancy by the entireties include ‘an inability of one spouse to alienate his interest,’ Morrison [v. Potter], 764 A.2d [234,] 236 [(D.C. 2000)], one spouse can voluntarily ‘relinquish [and convey] his or her interest to the other.’ Clark [ v. Clark], 644 A.2d [449,] 452 [(D.C. 1994)]. Id. at 203. The Blount court also cited the District of Columbia rule, which is not followed in all jurisdictions, that "a lien that cannot attach to property held as tenants by the entireties during a debtor's marriage will not necessarily attach to the property upon the debtor's divorce."

Alistair Edwards—Senior Attorney, National Legal Research Group

            It is not unusual for homes in a subdivision to be subject to restrictive covenants limiting the owners’ use of their property to residential purposes and/or prohibiting the use of the property for commercial, trade, or business purposes. This sort of restriction can also be found in instruments such as declarations governing condominium or townhouse communities. With the increasing popularity of programs such as VRBO and Airbnb, numerous courts have recently dealt with the issue of whether these so-called short-term rentals violate these sort of use restrictions. So far, the courts, strictly construing the covenants, have been fairly hesitant to find a violation.

            For example, recently in Lake Serene Property Owners Association v. Esplin, No. 2020-CA-00689-SCT, 2022 WL 713417 (Miss. Mar. 10, 2022), the Mississippi Supreme Court held that a homeowner's use of his property for short-term rentals was a “residential use” and, thus, did not violate the restrictive covenants governing the subdivision and limiting use to residential use.

Brad Pettit—Senior Attorney, National Legal Research Group

            Although the general rule is that in the absence of an express agreement between a landlord and a tenant to the contrary, the tenant cannot recover from his or her landlord the costs of improvements that he or she made to the leased residential property, recent decisions by Idaho trial and appellate courts in the same case suggest that a tenant can obtain equitable restitution from his or her landlord on the grounds of unjust enrichment for improvements to the leased premises that he or she made while the parties were mutually contemplating a future conveyance of the premises to the tenant as long as the landlord was aware of the improvements and never objected to them. Asher v. McMillan, No. 47684, 2021 WL 443227, at *4 (Idaho Feb. 9, 2021) (not yet released for publication; until released, it is subject to revision or withdrawal). It is significant to note that the Asher court ruled that although the parties' relationship was grounded in contract, the tenants were not limited to seeking legal relief under breach-of-contract theories and could obtain restitution from their landlord under the equitable theory of unjust enrichment:

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.

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.

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:

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.

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.

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.