Mortgage of joint tenancy interest does not encumber interests of joint tenants who do not join the deal

/ Estates and Future Interests, Mortgages, Real Estate Transactions, Statute of Frauds

In Bac Home Loans Servicing, L.P. v. Savankham, 2016 Mass. LCR LEXIS 86 (Mass. Land Ct. 2016), a mother gave a bank a mortgage on her joint tenancy interest in property she shared with her two children. The children did not know about or participate in the transaction. Apparently, the bank thought it was getting a mortgage on the whole property rather than just the joint tenancy interest of one joint tenant and sought to reform the documents to reflect that understanding. However, because there was no proof that all parties understood the transaction this way, it was a unilateral mistake of the bank rather than a mutual mistake of all owners and the lender. The court refused to reform the documents to reflect the arrangement the bank wanted or thought it was getting. A word to the wise, I suppose. You really need to do a title search to make sure […]

Mortgage of joint tenancy interest does not encumber interests of joint tenants who do not join the deal Read More »

Estoppel by deed does not require reliance

/ Consumer Protection, Estates and Future Interests, Leaseholds, Real Estate Transactions, Statute of Frauds, Title Issues

The Pennsylvania Supreme Court has reaffirmed and applied the doctrine of estoppel by deed in the case of Shedden v. Anadarko E. & P. Co., L.P, 136 A.3d 485 (Pa. 2016) and distinguished it from the doctrine of equitable estoppel. Equitable estoppel “recognizes that an informal promise implied by one’s words, deeds or representations which leads another to rely justifiably thereon to his own injury or detriment, may be enforced in equity” while “[i]n contrast, the doctrine of estoppel by deed precludes one who conveys an interest in land that he does not own, but subsequently acquires the title thereto, from denying the validity of the first conveyance.” In this case, an owner leased oil and gas rights to a 62-acre parcel while actually owning only 50% of them. When the owner later acquired the other 50% of the oil and gas rights, the doctrine of estoppel by deed folded those

Estoppel by deed does not require reliance Read More »

Legal consequences of the distinction between affirmative easements and restrictive covenants

/ Condominiums and Homeowners Associations, Easements, Real Estate Transactions, Servitudes, Trespass

Massachusetts statutes regulate the enforceability of “covenants” by limiting the circumstances in which they can be enforced, defining when they can be enforced by damages only and not injunctive relief, and subjecting enforcement to a 6 year statute of limitations. Mass. Gen. Laws ch. 184 §23A, §30.  In a recent application of those statutes, the Massachusetts Appeals Court ruled in BP Watertown Retail, LLC v. Home Depot U.S.A., Inc., 2016 WL 513955 (Mass. App. Ct. 2016), that these limitations do not apply to affirmative easements; rather they apply only to restrictive covenants. So when an owner of a store in a shopping center engaged in construction in a shared parking area, eliminating several parking spaces, its actions did not merely violate the restrictions on construction in the parking area but interfered with access to the parking area by other easement beneficiaries who had a right to use the parking lot without

Legal consequences of the distinction between affirmative easements and restrictive covenants Read More »

State agency owed substantial deference when it exercises its legitimate authority to override local zoning law to enable construction of affordable housing

/ Real Estate Transactions, Zoning

The Massachusetts Comprehensive Permit Statute, colloquially known as the Anti-Snob Zoning Act, Mass. Gen. Laws ch. 40B, §§20-23, enables developers to file a single comprehensive permit before the local zoning appeals board to construct affordable housing. Municipalities in which less than 10 percent of the housing stock is affordable face a heavy burden of proof to overcome the statutory preference for such housing. The statute delegates authority to a state agency, called the Housing Appeals Committee, that enables it to override local permit denials when necessary to allow affordable housing to be constructed. In Eisai, Inc. v. Housing Appeals Committee, 89 Mass. App. Ct. 604 (2016), the court affirmed the substantial deference owed to the state agency when it exercises its powers ordering a municipality to issue a comprehensive development permit for affordable housing. Local concerns that include protection of health or safety of occupants or residents of the municipality cannot override

State agency owed substantial deference when it exercises its legitimate authority to override local zoning law to enable construction of affordable housing Read More »

Heirs under intestacy statute include adopted children

/ Marital Property, Wills and Inheritance

In a decision one might think was unnecessary today, the Maine Supreme Judicial Court ruled that the “children” who inherit under state intestacy statutes include adopted children. Fiduciary Trust Co. v. Wheeler, 132 A.3d 1178, 2016 ME 26 (Me. 2016). The issue was raised because an earlier court decision interpreting the decedent’s will had held that a separate clause leaving property to the decedent’s “issue” went to biological children (in this case grandchildren) only. This clause did not affect another clause, at issue here, that referred to the state’s intestacy statute to govern distribution of property upon termination of the trust.

Heirs under intestacy statute include adopted children Read More »

Yard maintenance not sufficiently visible for adverse possession

/ Adverse Possession, Trespass

The Nebraska Supreme Court held that operation of a hidden sprinkler system and lawn maintenance were not sufficiently visible or “notorious” to put the record owner on notice of the adverse actions and thus could not ripen into adverse possession. Poullos v. Pine Crest Homes, LLC, 876 N.W.2d 356 (Neb. 2016).

Yard maintenance not sufficiently visible for adverse possession Read More »

Informal border change by acquiescence

/ Adverse Possession, Real Estate Transactions, Statute of Frauds, Trespass

The Utah Supreme Court has affirmed and applied the doctrine of “boundary by acquiescence” under which a border is set informally when neighbors recognize a line between their properties. Q-2 LLC v. Hughes, 368 P.3d 86 (Utah 2016). The court noted that title shifts at the point when the parties act to satisfy the doctrine not when the border is recognized by a court. Establishment of boundary by acquiescence in Utah requires (1) occupation up to a visible line marked by monuments, fences, or buildings; (2) mutual acquiescence in the line as a boundary; (3) for at least 20 years; (4) by adjoining owners. The doctrine differs from adverse possession because it is based on mutual permission rather than adverse occupation (occupation that is non-permissive).

Informal border change by acquiescence Read More »

Washington state law bans mortgage lender from changing locks and barring the borrower from her home after default but before foreclosure

/ Mortgages, Real Estate Transactions, Trespass

Many mortgage agreements allow the lender to change the locks on the door and take over the property when a borrower-mortgagor defaults or abandons the property; this is intended to prevent the property from becoming dilapidated or taken over by squatters. However, some banks have locked owners out of their homes after they default even if they are still living there and there is no evidence of abandonment or harm to the premises. The Washington Supreme Court outlawed this practice in  Jordan v. Nationstar Mortg., LLC, 2016 WL 3748978 (Wash. 2016), interpreting a state statute that denies the “owner of the mortgage” the power to “recover possession of the real property, without a foreclosure and sale according to law,” Rev. Code Wash. §7.28.230(1).  The court emphasized that Washington is a lien theory state that leaves title with the homeowner and gives the lender a lien on the property unlike title theory

Washington state law bans mortgage lender from changing locks and barring the borrower from her home after default but before foreclosure Read More »

North Carolina finds taking of properties restricted from development because listed for highway takings

/ Takings

In Kirby v. N.C. Dep’t of Transp., 2016 WL 3221090 (N.C. 2016), the North Carolina Supreme Court held that the state took property without just compensation under the state constitution when it published maps showing where roads would be placed in the future and what properties would have to be taken to enable those roads to exist. The underlying statute imposes restrictions on properties identified on the officials maps as likely to be taken for road purposes. No owner is allowed to obtain a building permit or a subdivision approval, although owners can apply for hardship exceptions to the building permit limitation. On the other hand property tax relief is also provided to these owners. Publication of the map does not mean the property actually will be taken; the state Department of Transportation is not obligated to build or complete the highway project. The Map Act could be justified as a legitimate

North Carolina finds taking of properties restricted from development because listed for highway takings Read More »

Taking of property when an easement is expanded beyond its original scope

/ Easements, Servitudes, Takings

In Marvin M. Brandt Revocable Trust v. United States, 134 S.Ct. 1257 (2014), landowners objected when an easement that had been granted for railroad purposes was converted to a trail for public hiking. An easement is a permanent right to use land owned by another for a specific purpose. State law determines how to interpret the scope of the purpose. Some states interpret a general right of way as not only giving the easement owner the right to pass over the land by walking or driving but a right to install utility lines; other states interpret the scope of the easement narrowly and would view utility lines as exceeding the scope of the easement. In addition, state law determines when an easement ends because of abandonment. Most states find that mere nonuse does not constitute abandonment. However, once state law determines that a use exceeds the scope of the easement or that

Taking of property when an easement is expanded beyond its original scope Read More »

Scroll to Top