Justia Real Estate & Property Law Opinion Summaries

This case arose when petitioner's home was damaged in a hurricane and Florida Preferred was the insurer of the home. After petitioner sued Florida Preferred over a dispute regarding the covered loss and Florida Preferred subsequently became insolvent, petitioner filed a motion to substitute FIGA as the defendant. At issue was whether FIGA could be required to pay petitioner's attorney's fees and costs incurred in the litigation with Florida Preferred. Because petitioner's attorney's fee award pursuant to section 627.428(1), Florida Statutes, was not within the coverage of her insurance policy, it was not a covered claim under section 631.54(3), Florida Statutes, that FIGA must pay. Therefore, the court approved the decision of the Second District.

At issue in this appeal was the Privilege Tax Statute, which provides that an entity may be taxed on the privilege of beneficially using or possessing property in connection with a for-profit business when the owner of that property is exempt from taxation. But the tax may not be imposed unless the entity using or possessing the exempt property has "exclusive possession" of that property. Alliant Techsystems (ATK) challenged the imposition of a privilege tax on its use of government property. The district court granted summary judgment against ATK, concluding that ATK had "exclusive possession" of federal government property because there was no evidence that anyone other than the government, the landowner, had any possession, use, management or control of the property. The Supreme Court reversed, holding (1) under the Statute, "exclusive possession" means exclusive as to all parties, including the property owner, and thus, exclusive possession exists when an entity has the present right to occupy and control property akin to that of an owner or lessee; and (2) because the record indicated disputed material facts regarding ATK's authority to control the government property, summary judgment was inappropriate in this case.

Six individuals and the Magothy River Association (Appellees), brought suit against the recent purchasers of Dobbins Island (Appellants), seeking to establish a public right to use a beach located alongside the island's northern crescent area. Following a bench trial, the trial judge determined that Appellees had demonstrated the existence of a prescriptive easement on behalf of the public and ordered the removal of portions of a fence erected on the beach by Appellants. In making this determination the trial judge applied the general presumption of adverse use and, accordingly, placed the burden on Appellants to prove that the use was, in fact, permissive. The Supreme Court reversed, holding (1) the trial court's application of the general presumption of adverse use was in error, as the beach at issue was unimproved and otherwise in a general state of nature; and (2) therefore, the proper presumption, under the circumstances, was that public use was by permission of the owner. Remanded.

Petitioner Eleanor Oakes owned a 7/8 undivided interest in a 20-acre parcel of land in Council, while Respondents David and Sine Holly owned a 1/8 undivided interest in the property. The parties went to court to partition the property, and each agreed to submit up to three partition proposals for the court’s selection after it heard evidence about the choices. The superior court selected one of Petitioner's proposals, and she hired a surveyor to implement the division of the property. The survey revealed a significant error in the map presented to the superior court of the selected proposal. The error resulted in the Hollys acquiring more river frontage than Petitioner had intended in her proposal which was selected by the superior court. Petitioner moved to amend the proposal, but the Hollys urged that the selected proposal be implemented as surveyed. The superior court concluded that under the doctrine of mutual mistake, Petitioner bore the risk of the drafting mistake in her proposals, and it enforced the proposal with the drafting error. But because the error in the property description did not occur in the formation of contract, the Supreme Court in its review concluded that the doctrine of mutual mistake was inapplicable. "Instead, the error occurred during the evidentiary hearing and formed a mistaken factual premise for the trial court's decision." The Court therefore remanded the case back to the superior court to determine whether it was appropriate to grant relief for mistake, and if so, to repartition the property in compliance with state law.

Altaf Virani filed an action against 600, L.L.C. (the LLC), attempting to redeem real property the LLC purchased from the bank that had foreclosed on that property. After a bench trial, the circuit court entered a judgment establishing the amount Virani was required to pay to redeem the property. The LLC appealed, arguing that the amount the judgment required him to pay was incorrect. Because the trial court erred in setting the redemption price under 6-5-253(a), Ala. Code 1975, and in not including interest in the redemption price, the Supreme Court reversed the trial court's judgment and remanded the case for further proceedings.

The debtor's single asset is a commercial building. The lender promptly started foreclosure proceedings in state court, prevailed, and a foreclosure sale of the property was scheduled, but was stayed when the debtor filed for bankruptcy, 11 U.S.C. 362(a)(4). The lender became a participant in the bankruptcy The bankruptcy court rejected the debtor's plan to exchange the mortgage for an "indubitable equivalent," lifted the stay, and dismissed the bankruptcy. The Seventh Circuit affirmed, noting that the lender has waited years to enforce its lien and that the court was not required to further stretch the wait. The lien on Treasury bonds proposed by the debtor would not be equivalent to the lender retaining its lien on the building.

Plaintiff purchased approximately 4,000 acres of land in Titus County, Texas, for use as a mitigation bank to offset the environmental impact of more destructive land use. 33 U.S.C. 1344. Before the purchase, the Army Corps of Engineers communicated that it then saw no impediments to creating the mitigation bank. After the Texas Water Development Board announced that the Reservoir would become less viable (if not infeasible) if the mitigation bank were approved, the Corps denied the application because the mitigation bank overlapped with the proposed Reservoir and it concluded that plaintiff's land might not exist in perpetuity. The district court dismissed a claim for just compensation. The Federal Circuit affirmed, holding that plaintiff did not have a cognizable property interest in obtaining a mitigation banking instrument. The claim was essentially that plaintiff detrimentally relied on representations made by the Corps.

Hobble Diamond Ranch, Robert and Susan Burch, and James Lowe, (collectively, Neighbors), appealed the district court's judgment affirming the Montana Department of Transportation's (DOT) decision to issue billboard sign permits under the Montana Outdoor Advertising Act. Neighbors sought removal of two billboards, arguing that the billboards were not in compliance with MOAA, DOT's granting of the permits was unlawful, and the billboards were a public nuisance. The Supreme Court affirmed, holding that the district court's ruling upholding the DOT decision was not arbitrary capricious, or unlawful, as the permit applications were in conformance with MOAA and DOT based its decision on sufficient evidence.

Camelot brought this action against its tenant, AMC Showplace Theatres, seeking a declaration that section 3.4 of their lease was an option to renew if the parties agree on new, negotiated terms rather than an option to extend on the terms contained in their existing lease. The parties filed cross motions for summary judgment and the district court granted Camelot's motion. The court affirmed and held that the terms of the option period were not readily ascertainable and that section 3.4 was an option to renew that required new, negotiated terms.

Plaintiff-Appellee Deutsche Bank National Trust filed a foreclosure action against Defendants-Appellants Natacha and Jevester Bryams, Jr. Deutsche Bank claimed at that time to hold the note and mortgage having received due assignment through mesne assignments of record or conveyance via mortgage servicing transfer. A review of the note showed no indorsement. In its brief in support of motion for summary judgment Deutsche Bank attached a document entitled "Assignment of Mortgage." This assignment of mortgage was acknowledged and stamped as being recorded with the County Clerk of Tulsa County on January 26, 2010--over one month after the filing of the foreclosure proceeding. The trial court granted summary judgment in favor of the bank, and the Byrams appealed, arguing that the bank failed to demonstrate it had standing to bring the foreclosure action. Upon review, the Supreme Court held that the bank needed to show it became "a person entitled to enforce" its note prior to foreclosing. There was a question of fact as to when and if the bank became so entitled, and the Court concluded summary judgement was not an appropriate disposition of the case. The Court reversed the trial court's judgment and remanded the case for further proceedings.