Property Law Developments—Joseph William Singer

The Ninth Circuit has upheld a city administrative program that regulated landlords whose buildings violated the housing code by allowing tenants to pay a reduced rent into a publicly administered escrow fund which is paid to the landlord once the violations are corrected.    Sylvia Landfield Trust v. City of Los Angeles, 2013 WL 4779664 (9th Cir. 2013). Four landlords challenged the program as a violation of their substantive rights under the due process clause. The court upheld the program because it was rationally related to the legitimate government goal of enforcing the housing code to protect tenants from unsafe conditions.The landlords had claimed that the tenants caused the problems, that their properties were not sufficiently substandard to warrant application of the law, and that the program was intended to enrich the government. The court rejected all these claims, noting that the law allowed landlords to prove that tenants were responsible for the conditions and that the program was designed to promote compliance with safety regulations, not to generate income for the government. The program therefore did not arbitrarily deprive the landlords of their liberty or property; nor was it taken ‘with deliberate indifference toward…constitutional rights.”

Given the clear statement by the Supreme Court of New Jersey on how it was likely to rule in the pending marriage equality case, (see Garden State Equality v. Dow (N.J. 2013). Governor Chris Christie decided to drop the appeal. read article. That leaves the lower court ruling (read opinion here) in place with its conclusion that civil unions are not equal to marriages now that the federal government provides same-sex married couples the same federal rights as male-female married couples but does not confer such rights on partners to a civil union. The New Jersey Supreme Court’s prior ruling in Lewis v. Harris, 908 A.2d 196 (N.J. 2005), had found it to be a violation of the state constitution not to grant same-sex couples the same rights as married couples but left it to the legislature whether to call the resulting unions “marriages” or “civil unions” or something else. While New Jersey conferred equal rights under state law to “civil union” couples, they could not grant them the federal benefits of married couples; that would have been true even if they had allowed “marriages.” But after United States v. Windsor, married same sex couples do have the same federal benefits and married male-female couples so that created an inequality between married New Jersey couples and civil union New Jersey couples that could not stand under the state constitution.

The Supreme Court of New Jersey unanimously upheld the decision of a trial judge to allow same-sex marriage to proceed pending appeal of the trial judge’s ruling that the New Jersey civil union law violates equal protection by denying same-sex couples the same rights as granted to married couples under federal law. Garden State Equality v. Dow, (N.J. 2013). The court had previously held that same-sex couples were entitled under the state constitution to the same rights and privileges as married male-female couples but allowed the legislature to determine whether to accomplish this end by extending marriage rights to same-sex couples or adopting a civil union law. Because the legislature adopted a civil union law, such couples had the same rights under state law as did male-female couples; they had different rights under federal law but that was because federal law refused to recognize any same-sex couples as married for any federal purposes and the state could not change that situation.

However, after the Supreme Court decision in United States v. Windsor, 133 S.Ct. 2675 (2013), required the federal government to treat couples as married for federal purposes if they were married under state law, an inequality has now been introduced into New Jersey law. Before Windsor, civil union couples had the same rights as married male-female couples under state law but unequal rights with regard to federal law; that was something state law could not fix. But now that federal law gives married same-sex couples the same rights under state and federal law, it has been true that civil union couples in New Jersey are denied federal rights they would have if they were married under state law. The court determined that this likely violated the equal protection clause and that the state had no legitimate state interest to violate the constitution while the appeal proceeded. Same sex marriages will begin on Monday Oct 21 while the appeal in the NJ Supreme Court will take place in January 2014.

The Trademark Trial and Appeal Board refused to register “the Slants” as the name of an Asian-American band, despite its attempt to turn the name from an ethnic slur into a mark of pride. In re Tam, No. 85472044, 9/26/13. The federal trademark law prohibits registration of any mark that “may disparage or bring into contempt or disrepute persons, institutions, beliefs or national symbols.” 15 U.S.C. §1052(a). Even though the band sought to “take back” the ethnic slur by appropriating it (as happened with the term “queer” for gay people), the board refused registration because the derogatory meaning of the name was clear in context. The mere fact that the ones using the term were themselves East Asians did not automatically convert the term into one that was not disparaging. Note that the decision merely prohibits federal registration of the mark; it does not prevent the band from continuing to use the name and attempting to change views about its meaning.

New Jersey confusingly refers to conditional permits as “conditional use variances.” This language makes it easy to confuse conditional permits and variances. In TSI East Brunswick, LLC v. Zoning Bd. of Adjustment of Tp. of East Brunswick, 71 A.3d 762 (N.J. 2013), the Supreme Court of New Jersey reaffirmed the traditional rule that variances should be granted only in cases of unusual hardship (or other statutory requirements) because they allow something to be done that violates the intent of the zoning ordinance. Conditional permits, on the other hand, allow an activity to occur on land as long as the conditions are met and thus are subject to a lower standard of proof; they are presumptively permitted (as long as the conditions are established) rather than presumptively prohibited.

The Ninth Circuit affirmed that an action intended to discriminate in violation of the Fair Housing Act (FHA) creates a claim for which relief can be granted even if it has not had any other impact on the plaintiff. Pac. Shores Props., LLC v. City of Newport Beach, 2013 WL 5289100 (9th Cir. 2013). In this case, a city passed an ordinance intended to exclude group homes for recovering alcohol and drug users; it had terms that had the practical effect of prohibiting group homes from opening in most residential areas. The court held that a claim could be brought even if the plaintiff could not prove that the ordinance actually prevented it from acquiring property and operating. The ruling tracks prior case law which allow a damages claim for a prospective tenant denied housing because of her race even if she finds an apartment across the street five minutes later that is cheaper and better. Zoning practices that discriminate against individuals with disabilities can be discriminatory and violate the FHA if they contribute to making unavailable or denying housing to those persons.

A patron who knew he could not enter a diner because the diner did not have wheelchair access could sue the diner and its landlord for violating the Americans with Disabilities Act even though he never went to the diner and tried to get in. Kreisler v. Second Ave. Diner Corp., 2013 WL 5340465 (2d Cir. 2013). The mere fact that he was deterred from going to the diner is enough to give him standing to bring a claim for violating the public accommodation provisions of the ADA. Moreover, once he had standing to sue for one violation, he could sue the diner for other violations of the statute that relate to his particular disability even if he has never been inside.