T
his article provides a brief summary of the most significant opinions issued by federal appellate courts during the period from May through June 2022, which addressed, among other topics, contracts, governmental takings, COVID shutdown orders, arbitration, bankruptcy, and consumer law. Contract Actions This summary begins in the First Circuit where the court, applying Maine law, held that a seller under an “as is” contract has no duty to disclose the existence of fill on a property when there is evidence of the fill in the public records. The court went further and stated that the seller could not be sued for “active concealment” for “hiding” the fill when fill is—by its very nature—buried and not visible. The court explained the concept of “active concealment” and found summary judgment was proper for the seller due to the fill’s existence being recorded and there being two decades between the filling of the property and the sale contract. Pleasantdale Condo., LLC v. Wakefield, 37 F.4th 728 (1st Cir. 2022). The Sixth Circuit explained how a “right of first refusal” under Low-Income Housing Tax Credit (LIHTC) program, 26 U.S.C. § 42, works in the SunAmerica Housing Fund 1050 v. Pathway of Pontiac, Inc., 33 F.4th 872 (6th Cir. 2022), decision. Briefly, a right of first refusal under the program requires there be a bona-fide, thirdparty offer but then differs from the common law right by permitting a qualifying nonprofit organization to exercise its right of first refusal at
Federal Real Property Case Law Update Published in Probate & Property, Volume 36, No 6 © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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November/December 2022
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By Manuel Farach
