Justia Real Estate & Property Law Opinion Summaries

The Real Estate Bar Association of Massachusettes ("REBA") claimed that certain activities undertaken by the National Real Estate Information Services ("NREIS") constituted an unauthorized practice of law. At issue was whether NREIS's activities, either in whole or in part, based on the record and as described in the parties' filings, constituted the unauthorized practice of law in violation of Mass. Gen. Laws ch. 221, section 46 et seq. Also at issue was whether NREIS's activities, in contracting with Massachusetts attorneys to attend real estate closings, violated Mass. Gen. Laws ch. 221, section 46 et seq. The court held that certain of the real estate settlement activities undertaken by NREIS did not constitute the unauthorized practice of law but the court could not determine based on the record whether the other described settlement activities did. The court also held that the closing or settlement of the types of real estate transactions described in the record required not only the presence but the substantive participation of an attorney on behalf of the mortgage lender and that certain services connected with real property conveyances constituted the practice of law.

In this case the Court was asked to determine who won an eminent domain action in which the winner should have been awarded attorney's fees. Despite winning the judgment, Appellees were denied attorney's fees. Technically Appellees were not the "prevailing party" at trial, and thus not entitled to fees. At issue in the case was the value of mineral rights to land the Government sought to take by eminent domain. Competing experts disputed the valuation, eventually resting on a number with the district court's help. Appellees sought fees but were denied. They brought their case to the Tenth Circuit to challenge the district court's decision. Relying on it's own precedent, the Tenth Circuit found that the district court had to use the highest valuation "attested to at trial." In this case, Appellants "won" the battle of the experts even though Appellees "won" the judgment. Appellants' expert had the highest valuation of the mineral rights, and because the amount of the judgment was far less than his highest valuation, Appellants were the "prevailiang party." The Court accordingly affirmed the district court's decision denying Appellees attorney's fees.

Respondent filed a complaint against petitioners alleging that petitioners had breached their agreement to pay the "Advisory Fee" that respondent earned while acting as petitioners' broker in the sale of petitioners' real property. At issue was whether the seller of real property was entitled to refuse to pay an agreed upon fee to the broker who represented seller on the ground that the broker was a "dual agent." The court held that it was questionable whether there was any legally sufficient evidence of dual agency; and if there was any evidence, the jury was entitled to decide as a matter of fact that a dual agency did not exist. The court also held that there simply was no evidence of any other material fact that respondent had a duty to disclose but did not. Therefore, the court affirmed the jury award of damages to respondent.

The owner of a mortgage company was sentenced to 96 months for fraud and money laundering. The Sixth Circuit affirmed, holding that the conviction was supported by substantial evidence. Evidence of a government witness's prior inconsistent statements that referred to a conviction more than 10 years prior was properly excluded; the trial judge gave the defense proper latitude to impeach the witness. The sentence was properly enhanced for attempting to obstruct the investigation, use of "sophisticated means," and acting as the organizer or leader.

In the underlying cases, the respective property owners failed to satisfy their debt obligations to professional lending institutions, which precipitated foreclosure proceedings. The Commonwealth intervened, seeking to block the foreclosures pending resolution of the tax liens. In both cases, the lenders brought suit to assert that their respective mortgages were superior to the general tax liens filed pursuant to the state recording statutes. Kentucky is a "race-notice" state in that a mortgage, deed or deed of trust takes effect at the time it is recorded. In both cases, the tax liens superseded the lenders' liens; but the lenders argued that state law provided super priority for ad valorem taxes, not general tax liens, therefore their purchase money mortgages superseded the Commonwealth's liens. Disagreeing with the lenders' characterization of the tax liens, the Supreme Court held that the tax liens took priority over the lenders' liens, and should be afforded no special priority.

Appellee John Jennings operates a commercial marina/boatyard. He challenged the local zoning board's authority to regulate the construction of additional mooring slips that would lie beyond the mean low-water mark of a navigable body of water on his property. Appellant also challenged the authority's "special exception permit" ordinance, claiming that the ordinance lacks adequate standards to guide the governing body's decision to grant or deny a permit. On review, the Supreme Court found no errors from the lower court's record on either ground: "the County's zoning authority 'embrace[s] the entirety of [Appellee's] proposed construction, even the portion that 'extends into the Chesapeake Bay's tidal tributaries.'" The Court affirmed the lower court's denial of Appellee's request for declaratory relief.

Paul and Pat Nash own twenty-eight acres in Campbell County. Clifford and Toby Torline own thirty-five acres. Both Nash and Torline wished to divide their parcels into tracts of five or more acres each for agricultural uses. Nash and Torline see the five-acre plots as mini-farms, but the County views the plots as residential subdivisions with large lots. The County Clerk petitions the court for guidance as to whether or not he should accept the deeds of the five-acre divisions for recording. The County maintains that two of its ordinances prohibit any division until the property owners prove to the Planning Commission that the divisions were for agricultural purposes. Nash and Torline take exception to having the burden placed on them, and argue that the County must prove the divisions were not exempt from subdivision regulations. The trial court agreed with Nash and Torline, and held that the County's ordinances violated the agricultural supremacy clause and were therefore unconstitutional. The appellate court reversed the lower court and ordered summary judgment on behalf of the County. The Supreme Court accepted discretionary review, affirmed in part the lower court's decision, reversed in part, and remanded the case to the trial court to enter summary judgment in favor of the County. The Court found that the five-acre plots were subdivisions that required planning commission approval before recording.

In 2008, the Board of County Supervisors filed a petition for condemnation in trial court against Appellee's Charles and Anna Dean, seeking to obtain the Deans' property to expand a bus maintenance facility and parking structure. The Deans' property consisted of approximately one acre, and had been used previously as a gas station and transmission repair shop. The County had tried to purchase the property, but had been unable to reach an agreement regarding compensation for the property. Before trial, the County filed a motion in limine requesting the court exclude evidence of a purported comparable sale that the Deans relied on to arrive at a price for their property. At trial, the County's expert appraiser testified that the Deans' property was worth $475,000; the Deans' expert valued the property at $900,000. Ultimately the jury fixed the property's value at $488,750. The Deans filed exceptions to the jury's report that the court overruled and denied. On review, the Supreme Court found that the trial court did not abuse its discretion in sustaining the County's motion in limine and excluding evidence regarding the "comparable sale," and affirmed the judgment of the trial court.

In 1925, the owner of a parcel of land adjacent to the James River obtained the right to construct a wharf and pier extending into the river and adjacent to public land, then owned by the Isle of Wight County. Over time, the wharf was extended to include a pavilion and attached piers resting on pilings placed in the subsurface lands of the river, within the area between the mean low-water mark and the line of navigation. Through a chain of successive recorded transfers, the pavilion and piers were acquired by members of the Bracey family, including Appellee R. Forrest Scott. The family performed extensive renovations and began using the pavilions as a family retreat. The pavilion and connecting piers were destroyed by hurricane in 2003, and although a number of pilings that supported the original structures remain in place, there has been no reconstruction. In 2006, Appellant Burwell's Bay Improvement Association received approval to construct a pier from its property into the riparian area formerly containing the pavilion and piers that were destroyed in 2003. In March, 2007, Scott and other members of the Bracey sought a declaratory judgment from the circuit court that they own the riparian and other rights on and adjacent to the public area, to determine the extent of those rights, and to enjoin construction by Appellant that would interfere with the family's rights. The circuit court found that the family failed to establish ownership of the riparian rights by adverse possession or a prescriptive easement by clear and convincing evidence. On appeal, the Supreme Court was asked to review whether the evidence was sufficient to show that the use of the riparian rights was exclusive and continuous for the required period of time. The Court found because the family chose not to reconstruct after the 2003 hurricane, the piers that remained was not enough to use tacking to establish exclusive and continuous use of the area and riparian rights. The Court affirmed the lower court's decision.

Plaintiff filed an action against defendants claiming that they violated the D.C. Consumer Protection Procedures Act ("CPPA"), DC Code 28-3904, by inducing her to sell her house to one of the defendants and then failing to pay her the full amount promised. At issue was whether the district court erred in granting summary judgment under Federal Rule of Civil Procedure 56 and sanctions under Federal Rule of Civil Procedure 11. The court affirmed summary judgment where the district court correctly concluded on the record before it that one of the defendants was not a merchant subject to the CPPA. The court vacated the sanction award against one defendant where the defendant's conduct did not involve representations to the court that was sanctionable under Rule 11.