Justia Real Estate & Property Law Opinion Summaries

Respondent Steven Allen appealed a superior court order granting a petition to partition real property and for other equitable relief filed by petitioner Renee Brooks, and denying respondent’s cross-petition to partition. Petitioner and respondent lived together for approximately twenty years from 1993 to 2013, except for an 18-month period of separation in 2006-2007. From 1998 through early 2013, the parties lived together in a home in Atkinson. In 2003, the parties, as joint borrowers, entered into a home equity credit agreement secured by a mortgage on the Atkinson property. The November 1998 mortgage in respondent’s name alone was discharged. Under the terms of the credit agreement, each party was individually liable for the full amount of the credit line. Respondent, however, was in control of the credit line and he alone withdrew funds from it. In 2007, the parties, as joint tenants, purchased a property in Northwood, New Hampshire. Respondent obtained a mortgage on the property in his name only. The parties refinanced the Northwood property several times. In 2013, petitioner moved out of the Atkinson property when she received a letter from respondent’s attorney notifying her that if she did not leave she would be evicted. Upon the advice of his attorney, respondent withdrew the remaining balance of approximately $59,000 on the 2012 Atkinson credit line so that petitioner could not access those funds. In March 2013, petitioner filed a two-count petition to partition. In count one, petitioner requested that the trial court order that the Northwood property be sold and that the net proceeds from the sale be distributed equally between the parties. In count two, petitioner requested, among other things, that the trial court “[e]quitably determine” each party’s interest and rights in the Atkinson property, each party’s liability for any debts or loans jointly entered into, and each party’s liability for any debts or loans entered into by the petitioner, whose funds were used by the respondent “individually, or by the parties jointly, to invest in or maintain real estate.” Respondent cross-petitioned, requesting that the trial court assign the Northwood property to him, and dismiss count two of petitioner’s petition. After review of the superior court's order, the Supreme Court found no reversible error and affirmed. View "Brooks v. Allen" on Justia Law

This appeal arose from two consolidated actions brought by plaintiffs Kelly Sanborn, Trustee of the 428 Lafayette, LLC Realty Trust, Donald and Rosemarie Folk, Heather Hancock, and Andrew Cotrupi, against defendants, 428 Lafayette, LLC and John Roberge, relating to their respective ownership of condominium units at Village Square of Hampton Condominium. Defendants appealed superior court rulings that: (1) Village Square of Hampton Condominium Association was governed by RSA chapter 292 (Voluntary Corporations Act), rather than RSA chapter 356-B (the "Condominium Act"); and (2) Cotrupi had the right to use certain commercial parking spaces at the Condominium. In affirming in part and reversing in part the superior court's order, the Supreme Court found: neither the Condominium Act nor the Voluntary Corporations Act contained language making it the exclusive Act governing condominium associations that incorporate. Because neither Act contained exclusivity language, the Court concluded that condominium associations that voluntarily incorporate, as here, were subject to both Acts, including on matters of governance. "Regardless of the provisions of the bylaws, however, the bylaws cannot negate the applicability of the Voluntary Corporations Act." The trial court erred in ruling that the Association was governed solely by the Voluntary Corporations Act. Because the court issued specific governance-related orders concerning the election of directors and voting allocation based upon its conclusion that only the Voluntary Corporations Act applied, those orders were vacated and the case remanded for consideration of issues raised by the parties pertaining to both Acts. The trial court did not err when it ruled that Cotrupi had the right to use his exclusively owned commercial parking spaces and the right to shared use of the remaining commercial parking spaces on the condominium property. View "Sanborn v. 428 Lafayette, LLC" on Justia Law

The United States Court of Appeals for the First Circuit certified two questions of New Hampshire law to the New Hampshire Supreme Court. In April 2007, plaintiff Joseph Castagnaro executed a promissory note in favor of Regency Mortgage Corporation and a mortgage to Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Regency (the lender) and Regency’s successors and assigns. From that point forward, the mortgage and the note traveled different routes. MERS assigned the mortgage to BAC Home Loan Servicing. BAC subsequently assigned the mortgage to defendant, The Bank of New York Mellon (Bank). The record contained two versions of the note. The first showed an undated indorsement from Regency to American Residential Mortgage, and the second included an undated assignment from Regency to American, an undated indorsement from American to Countrywide Bank FSB, an undated assignment from Countrywide Bank FSB to Countrywide Home Loans, and an undated indorsement in blank. After plaintiff failed to make certain mortgage payments, the Bank sought to foreclose. Once in federal court, the plaintiff amended his complaint, and the Bank moved to dismiss it. The federal district court granted the Bank’s motion, concluding that the parties’ intent to separate the mortgage and note at the outset of the transaction trumped any common law rule requiring unity. The federal district court ruled that because the Bank was the mortgagee, it could proceed with the foreclosure under RSA 479:25, which authorized a “mortgagee” to conduct a non-judicial foreclosure when, as in this case, the mortgage contained a clause allowing it. Plaintiff appealed to the First Circuit and requested that the First Circuit certify questions of law to the New Hampshire Supreme Court. The First Circuit asked whether New Hampshire common law and/or RSA 479:25 required a foreclosing entity to hold both the mortgage and note at the time of a nonjudicial foreclosure. If so, could an agency relationship between the note holder and the mortgage holder meet that requirement, and did language in the mortgage naming the mortgagee “nominee for lender and lender’s successors and assigns” suffice on its own to show an adequate agency relationship? In addition, assuming that the common law and/or RSA 479:25 required a unity of the mortgage and note at the time of a nonjudicial foreclosure, and that an agency relationship between the note holder and the mortgage holder did not satisfy such a requirement, could the parties’ intent to separate the two overcome the unity rule? The New Hampshire Court determined it did not have to answer whether New Hampshire common law or RSA 479:25 (2013) (amended 2015) required a foreclosing entity to hold both the mortgage and note at the time of a non-judicial foreclosure because an agency relationship between the noteholder and the mortgage holder met any such requirement and language in the mortgage naming the mortgagee “nominee for lender and lender’s successors and assigns” sufficed on its own to show an adequate agency relationship. View "Castagnaro v. Bank of New York Mellon" on Justia Law

Defendant Michelle Willette appealed a circuit court decision issuing a writ of possession in favor of plaintiff, Federal Home Loan Mortgage Corporation (Freddie Mac). In February 2013, Freddie Mac purchased Willette's property through a foreclosure sale. Freddie Mac subsequently filed a landlord and tenant writ in the district division seeking possession of the premises. After a hearing, Willette filed the required recognizance with the district division and then filed a title action in superior court. In April 2014, Freddie Mac removed the title action from the superior court to the federal district court. The federal district court granted Freddie Mac’s motion to dismiss Willette’s title action. Afterward, Freddie Mac filed a motion in superior court for the issuance of a writ of possession, which was denied. Freddie Mac then requested a hearing in the district division on the merits of its possessory action. At the hearing, Willette argued that the district division lacked jurisdiction to issue a writ of possession. The district division disagreed and issued the writ. On appeal, Willette argued that the district division erred in issuing the writ of possession because: (1) it lacked jurisdiction over the possessory action; and (2) Freddie Mac failed to obtain judgment pertaining to its possessory action in both the superior court and the federal district court. Finding no reversible error, the Supreme Court affirmed. View "Federal Home Loan Mortgage Corp. v. Willette" on Justia Law

Respondents Mesiti Development, Inc., JVL Construction Company, Inc., and Brook Hollow Corporation, appealed a superior court order dismissing their counterclaims against petitioner Town of Londonderry. In 2012, the Town filed a bill of interpleader to determine whether $264,517.02 in surplus impact fees collected under the Town’s impact fee ordinance should have been refunded to the developers who paid the impact fees or to the current owners of the properties for which the fees had been paid. Although the Town’s impact fee ordinance specifies that the current owners are entitled to the refunds, the Town sought to confirm that the ordinance is consistent with the impact fee statute. The bill listed seventeen properties and their respective impact fee payors and current owners. Additional parties intervened thereafter. Several parties, including the respondents, moved to add counterclaims alleging, among other things: (1) violations of RSA 674:21, V; (2) negligence; (3) violation of fiduciary duties owed to impact fee payors; (4) violation of the public trust in government; and (5) violation of the municipal budget law. The Town filed a motion to dismiss these counterclaims, which the trial court granted. This appeal followed. Finding no reversible error in the order dismissing these claims, the Supreme Court affirmed. View "Town of Londonderry v. Mesiti Development, Inc." on Justia Law

Defendant Lisa Tagalakis Fedor was convicted by jury of knowingly keeping or maintaining a common nuisance. Defendant lived in Manchester with her boyfriend and her two children. In January 2013, the boyfriend approached defendant about allowing Robert Doane to move in with them. Doane was an acquaintance of the boyfriend’s from whom the boyfriend had purchased heroin. Defendant agreed to allow Doane to move into a spare bedroom. Defendant knew that Doane sold drugs and allowed him to continue to do so after he moved in, but asked him not to sell drugs inside the house. After moving in, Doane began selling heroin on the street outside of the residence. Inside the residence, Doane installed a padlock on his bedroom door, but defendant had witnessed Doane in his bedroom, packaging heroin into “individual baggies.” Doane, despite being a convicted felon, also obtained a stolen firearm that he kept in the house. Defendant was charged with one count of conspiracy to commit the sale of a controlled drug and one count of knowingly keeping or maintaining a common nuisance. Defendant moved for JNOV, or, in the alternative, to set aside the verdict. The trial court denied her requests for relief, and this appeal followed. Defendant argued on appeal that: (1) the trial court erred when it denied her motion for JNOV, specifically, that the evidence presented at trial was insufficient to prove that her residence was “used for the selling of the controlled drug heroin” because “drugs were not sold from inside the residence”; and (2) that the evidence was insufficient to support a finding that she “maintained a common nuisance under RSA 318-B:16” because she “did not control or ‘maintain’ Doane’s padlocked room.” The Supreme Court affirmed, concluding that the trial court’s denial of the defendant’s motion to set aside the verdict was supported by the evidence at trial, and did not constitute an unsustainable exercise of discretion. View "New Hampshire v. Fedor" on Justia Law

The Town of Charlestown appealed a decision of the New Hampshire Board of Tax and Land Appeals (BTLA) dismissing its petition for reclassification of current use parcels owned by taxpayer TransCanada Hydro Northeast, Inc. The Town asserted that, "[b]ecause the three parcels are part of a development involving land use for the purpose of generating electricity, they have been improperly classified as open space land under" RSA chapter 79-A. As a result, the Town requested that the BTLA revoke the current use status of the three parcels and require the Town's assessing officials to reclassify the parcels. The Town further requested that the BTLA issue an order requiring the assessing officials to reassess taxes for tax years 2007 through 2012. TransCanada objected, arguing that the three parcels were not improperly classified as open space land. After its review, the Supreme Court concluded that the BTLA did not err in dismissing the Town's petition for reclassification on the ground that the Town could unilaterally reclassify the land. As the Town agreed at oral argument, the Court did not address whether the Town could apply the reclassification retrospectively. View "Appeal of Town of Charlestown" on Justia Law

Petitioners Thomas and Margaret Ettinger, and Ettinger Family Holdings, Inc., appealed a Superior Court order denying their summary judgment motion and granting summary judgment to respondents Pomeroy Limited Partnership and The Nature Conservancy (TNC), on the petitioners’ petition for declaratory judgment. The parties owned real property on or around Silver Lake in Madison. The Ettingers owned the servient estate identified on Madison Tax Map 121 as Lot 4; the original dominant estate, Lot 160, was separated from Lot 4 by lots owned parties not named in this litigation. There was no dispute that Lot 160 had an easement to use "Winter Road Extension." In 2010, Pomeroy Limited conveyed 31.63 acres of its property to TNC. The conveyance included land that comprised most of Lot 161 and a portion of Lot 160. Pomeroy Limited retained a 7.4-acre parcel that included the physical terminus of Winter Road Extension. The deed to TNC conveyed the "right of way over Winter Road Extension" and a "right of way over the remaining land of [Pomeroy Limited]." The deed to TNC also stated that the 31.63 acres conveyed are "not to be considered a separate lot of record," but were to "merge with the abutting land of [TNC]." The reference to "the abutting land" owned by TNC referred to TNC's nature preserve, known as Ossipee Pine Barrens Preserve. Following the conveyance, the Ettingers filed suit claiming the easement conveyed to TNC could benefit only Lot 160, and could not benefit Lot 161 or any of the rest of TNC's land with which Lots 160 and 161 have merged. The issue presented to the Supreme Court in this case was the interpretation of the deeds in Lot 160's chain of title. After review, the Court was unable to rely upon the language of the language of the 1930 deed that created the Winter Road Extension easement. The Court found that language was ambiguous. To the extent that the trial court relied solely upon the language of the 1930 deed to determine the intent of the parties creating the easement, it erred. Accordingly, the Supreme Court reversed the trial court's order and remanded the case for further proceedings. View "Ettinger v. Pomeroy Limited Partnership" on Justia Law

Defendant Eugene Roe appealed circuit court decision awarding plaintiffs Leigh Mae Friedline and Zebadiah Kellogg-Roe a writ of possession. In 1959, the defendant purchased property in Greenville. In 1971, he conveyed the property to Brookwood Ecology Center, Inc. Brookwood reconveyed the house and barn on the property to defendant in 1999. In 2004, defendant conveyed the house and barn to his son, plaintiff Kellogg-Roe. In 2009, Kellogg-Roe transferred a twenty percent interest in the buildings to Friedline. That same year, Kellogg-Roe gave Friedline a power of attorney to act as his agent. Defendant has lived on the property since he purchased it. In 2012, Friedline served him with an eviction notice, ordering him to vacate the premises within thirty days. Although the eviction notice stated that the buildings were owned by both Kellogg-Roe and Friedline, only Friedline signed the notice. When defendant did not vacate the premises, plaintiffs filed a landlord and tenant writ. Following a hearing, the district division awarded plaintiffs a writ of possession. On appeal, defendant argued that he properly asserted a plea of title and, consequently, the district division erred by not transferring the case to superior court. He further argued that the court exceeded its jurisdiction by ruling on the issues raised in his plea of title. The issue this case presented to the Supreme Court was whether the district division had jurisdiction in this case. Rather than providing defendant with the opportunity to enter his action in superior court, the district division held a hearing during which it addressed, among other issues, the merits of his claim to a life estate in the property. Because jurisdiction to resolve questions of title and matters of equity lies with the superior court, the Supreme Court concluded the district division erred by ruling on this claim. Consequently, the Court vacated the district division’s order. View "Friedline v. Roe" on Justia Law

Defendant City of Portsmouth (City), appeals a jury verdict awarding $128,111 as just compensation for the defendant’s taking by eminent domain of easement rights in property of plaintiff Houston Holdings, LLC. Defendant challenged the Superior Court’s ruling on a motion in limine and the Superior Court’s denial of a motion to set aside the verdict. Finding no error in the Superior Court's decisions, the Supreme Court affirmed. View "Houston Holdings, LLC v. City of Portsmouth" on Justia Law