Justia Real Estate & Property Law Opinion Summaries

Articles Posted in October, 2011
by
This is Defendant Robert O'Connor's second appeal in a partition action brought by his former girlfriend Plaintiff Debra Whippie to resolve the parties' respective interests in a house they held as tenants-in-common. The parties had had a ten-year relationship and two children together when they purchased a single-family residence together in 2002. Both parties were obligated on the mortgage, and both their names appeared on the deed. In the beginning, the parties agreed to share expenses equally; however, Plaintiff stopped paying her share of expenses in early 2003. She sought public sale of the property and an equitable division of the proceeds. The Supreme Court affirmed the trial court's findings that Plaintiff initially acquired an equal share in the property, that she ceased contributing to expenses in early 2003, and that Defendant's letter of no-trespass excluded her from the property. The Court remanded for an accounting of the parties' interests in the property based on their relative contributions, directing the trial court to determine the parties' shares and instructing the court not to credit Plaintiff for certain expenses. On remand, the trial court reconsidered the issues without an evidentiary hearing. The court granted Plaintiff an offset representing half of the rental value for the period of ouster and 61% of the property's value. Defendant then appealed. The Supreme Court concluded that Defendant was entitled to compensation for half of the maintenance costs he paid for the entire period, even after the ouster. On second remand, the trial court was directed to determine the value of Defendant's expenditures on maintenance costs for the period of September 2004 to September 2007. Half of this amount should be deducted from Plaintiff's share. Her share should then be credited with the already determined rental value for the ouster period.

by
This case stemmed from a property dispute between the parties. White Springs appealed the district court's confirmation of an arbitration award in favor of Glawson, challenging the grant of attorneys' fees, expert fees, and prejudgment interest and sought to vacate or modify the arbitration award under the Federal Arbitration Act (FAA), 9 U.S.C. 10, 11. The court held that the arbitration panel had the power to decide Glawson's claims for attorneys' fees and that Glawson properly submitted the issue to the panel. The court was unable to grant White Springs' request that the court review the legality of the award of expert fees and prejudgment interest on the ad valorem taxes, as the FAA did not permit it to do so. Therefore, the court found no basis to overturn any portion of the panel's final arbitration award.

by
This case arose when Josephine Bailey petitioned to quiet title under OCGA 23-3-60 et seq., asserting that she owned an adjacent property at issue by deed and, in the alternative, by prescription. On appeal, Bailey appealed the order of the superior court adopting the report of a Special Master and decreeing that fee simple title to the parcel of land at issue was vested in Derether Moten. The court held that the judgment of the trial court that Bailey did not have title to the property by virtue of deed was not error; the trial court did not err in adopting the report of the Special Master and denying Bailey's claim of adverse possession; and that Moten's quitclaim deed was the only deed placed before the Special Master that described an interest in the property and it was not error for the trial court to adopt the Special Master's conclusion that title was vested in Moten. Accordingly, the judgment was affirmed.

by
John and Betty Vlasin leased the oil and gas rights to their land to Ranch Oil Company. Ranch Oil operated on one-half of the land in the lease and Byron Hummon operated on the other half. After the primary term of the lease expired and the wells stopped producing oil, the Vlasins entered into a new lease agreement with Hummon which encompassed the entirety of their land. Thereafter, Ranch Oil took action to revive one of its dormant wells, relying on a savings provision of the lease, which stated that the lease shall not terminate if the lessee commences operations for drilling a well within sixty days from such cessation. Plaintiffs, the Vlasins and Hummon, brought suit against Ranch Oil for declaratory judgment, trespass, and conversion. The court ruled in favor of Plaintiffs but awarded only nominal damages. The Supreme Court affirmed, holding that the district court did not err in concluding (1) Ranch Oil's activities on the Vlasins land did not operate so as to extend Ranch Oil's interest in the lease, and (2) Plaintiffs failed to prove they were entitled to damages under trespass and conversion claims, and the Vlasins were entitled only to nominal damages.

by
McNeese Title, LLC, a Florida limited liability company owned and operated by Richard McNeese, and Richard McNeese and Peggy Owens petitioned the Supreme Court for a writ of mandamus to direct the circuit court to vacate its order denying their motions to dismiss the action filed against them by James Atchison, and to enter an order dismissing the action for lack of in personam jurisdiction. This dispute arose out of Atchison's purchase of two residential lots in the Villa Lago subdivision, which was originally a 14-acre tract of land in the Golf and Beach Resort of Sandestin, Florida. According to Atchison, purchase agreements were sent to him by the "developers," who, he says, "developed, marketed and sold the lots" in the subdivision. Mr. Atchison signed a "compliance agreement limited power of attorney," designating Richard McNeese or Ms. Owens as Atchison's "attorney in fact for [his] use and benefit, ... for the purpose of ... signing or initialing on [his] behalf, any and all documents affecting the closing or refinance of the [lots]." The closing was held in 2005, however, many of the other lots in the subdivision had not closed, contrary to the purchase agreements. Eventually, Atchison sued a number of individuals and entities, including C-D Jones, 331 Partners, McNeese, and Owens, alleging that he had suffered damage as a result of activities conducted by C-D Jones and 331 Partners after the closing. McNeese and Owens unsuccessfully moved to dismiss the action for lack of personal jurisdiction. Upon review, the Supreme Court concluded that the circuit court lacked jurisdiction over the McNeeses and Ms. Owens. Accordingly, the Court granted their petition and issued the writ.

by
The United States District Court for the Northern District of Alabama, Southern Division sent a certified question to the Supreme Court. While the Court initially accepted the certified question; however upon review, the Court declined to answer it. The Court noted that the certified question was framed in the abstract, with no reference to any specific language in the title-insurance policy at the heart of the case (i.e., as an evidentiary issue with broad application). "The parties, in their briefs to this Court, do not address the construction of the policy at issue and instead refer this Court to various authorities discussing how valuation may be determined in various title-insurance contexts. Additionally, it is not apparent from the materials before us that the district court has had the opportunity to address whether the specific language of the policy would control the determination of the value of the property. Therefore, we see no grounds under Rule 18 [of the Rules of Alabama Civil Procedure] that will allow this Court to answer the question."

by
The Secretary of State of Mississippi (State) and the City of Ocean Springs (Ocean Springs) appealed a chancery court's decision that enjoined the construction of a sidewalk. The sidewalk would have run along a beach adjacent to the seawall on property claimed by Respondents Clyde Gunn, III and Neil Harris in Ocean Springs. The issue before the Supreme Court was whether the chancellor erred in granting the permanent injunction. The State and Ocean Springs asserted that the chancellor erred in issuing the permanent injunction because: her finding of irreparable injury was not supported by substantial evidence; an adequate remedy at law was available; and she failed to rule on the merits of the underlying dispute regarding ownership of the land where the proposed sidewalk was to be located. Upon review, the Supreme Court found no error in the chancellorâs earlier determination that irreparable injury would result if she did not grant an injunction and that no adequate remedy at law was available. The Court concluded that the chancellorâs order and opinion was in fact a preliminary injunction, incorrectly styled as a permanent injunction: "[i[t is clear from its language that the chancellor sought to protect the interests of all parties until ownership of the property could be determined. We therefore remand this case to the Hinds County Chancery Court, vacate the permanent injunction, and leave the earlier-issued preliminary injunction in place."

by
The central issue in this case was whether an oil company could deduct reasonable processing and investment costs from the payments it made to royalty owners. If so, the Supreme Court had to determine whether Mississippi code 53-3-39 was applicable in calculating the damages owed to the royalty owners for unreasonable deductions. Upon review, the Supreme Court affirmed the chancellor's holding that reasonable processing and investment costs could be deducted from royalty owners' payments. However, the Court determined that the chancellor erred by failing to apply 53-3-39 to calculate damages. Thus, the Court partly affirmed, partly reversed the chancellor's decision, and remanded the case for recalculation of damages.

by
Petitioners, trustees and co-trustees of two trusts as well as several individuals, appealed from an order entered by the circuit court that modified a previous injunction to allow Respondent, Aviation Cadet Museum, to land and depart small aircraft exclusively from the north end of its airfield. Before the Supreme Court was Petitioners' request for writ of certiorari seeking additional time to complete the record. The Court denied the writ, holding that the record in this case was not filed in a timely manner, and because the timely filing of the record on appeal is a jurisdictional requirement for perfecting an appeal, the appeal was dismissed.

by
Plaintiffs Alfred and Susan Marshall appealed a superior court's order that granted summary judgment in favor of the defendants on Plaintiffs' claim to a prescriptive easement over defendants' beach front property (the âBeach Lotâ) Plaintiffs' and defendants' lots were originally part of a parcel acquired by Francis Lord in 1871. Lord sold several beachfront lots (but not the Beach Lot) during his lifetime. After Lordâs death, his heirs continued to sell parcels from his land, including several non-waterfront back lots. The Town of Ossipee (Town) acquired title to the Beach Lot by a tax collectorâs deed in 1987. The Town conveyed the Beach Lot by quitclaim deed in 1993. In June 2010, Plaintiffs filed this action for the court's determination that they held prescriptive rights to use the Beach Lot. Plaintiffs claimed that, prior to the Townâs acquisition of the Beach Lot by tax deed in 1987, they and their predecessors had made more than twenty years of open, adverse, continuous and uninterrupted use of the Beach Lot to access Lake Ossipee, thus giving them a prescriptive easement over that lot. The defendants challenged Plaintiffsâ claim on five grounds, one being that any prescriptive easement to use the Beach Lot, which may have existed prior to 1987, was extinguished by the Townâs acquisition of the property by tax deed in that year. Without deciding whether Plaintiffs actually had an easement prior to 1987, the court held that even assuming such easement existed, the tax deed cut off even ripened prescriptive rights as a matter of law. On appeal, Plaintiffs argued that that the trial court erred in determining any easement they might have had prior to the tax deed was extinguished by that deed. Upon review, the Supreme Court agreed with Plaintiffs, and reversed the superior court's decision. The case was remanded for further proceedings.