Justia Real Estate & Property Law Opinion Summaries

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

Respondents Steven and Philomena Landrigan appealed a Superior Court order finding that they unlawfully subdivided their property and granting petitioner Town of Newbury's request for injunctive relief and the imposition of a $2,000 fine. Respondents argued that the trial court erred in finding that their conduct and that of their predecessors had merged two non-conforming parcels into a single lot. Finding no error, the Supreme Court affirmed. View "Town of Newbury v. Landrigan" on Justia Law

Petitioners Bilden Properties, LLC and TD Bank, N.A. appealed and respondents S. Gerald and Gail Birin cross-appealed a superior court order finding, among other things, that the petitioners were bona fide purchasers for value, who acquired interests in the subject property without notice of the Birins’ mortgage on it. The Supreme Court concluded petitioners purchased the subject property subject to the Birins’ mortgage, upholding the trial court’s decision to the extent that it allowed the Birins to foreclose. To the extent that the trial court granted a permanent injunction prohibiting the Birins from foreclosing, the Court vacated that permanent injunction. Additionally, the Court affirmed the trial court’s determination that petitioners’ interests were equitably subrogated up to the amount paid to discharge the mortgages held by Southern New Hampshire Bank. View "Bilden Properties, LLC v. Birin" on Justia Law

Plaintiff Robin Plaisted appealed a superior court order that dismissed her case against defendant Jeffrey LaBrie as untimely. The issue between the parties stemmed from the contract to sell real estate. Plaintiff wrote, and the defendant cashed, a check made out to "Jeff LaBrie" in the amount of $19,500. The check noted that it was "[f]rom R. Plaisted for full payment for 50% of 10 Nelson [Street] Property." Defendant, as president of Blue Star, signed a "Declaration of Ownership" stating that Blue Star granted to the plaintiff a fifty percent interest in the property. Two years later, Blue Star sold the property for a profit of $98,855.97 and wired the proceeds to a bank account "[f]or the benefit of Blue Star Consulting (Jeff LaBrie)." Plaintiff petitioned the trial court, seeking a declaration that she had been a one-half owner of the property, as well as an order requiring the defendant to pay her one-half of the sale proceeds. Finding no error in the trial court's determination that plaintiff's suit was time barred, the Supreme Court affirmed dismissal. View "Plaisted v. LaBrie" on Justia Law

Respondents New Hampshire Fish & Game and the New Hampshire Council on Resources and Defelopment (CORD) appealed a superior court decision that granted summary judgment to petitioners Town of Newbury and Lake Sunapee Protective Association. Petitioners challenged CORD's decision to approve Fish & Game's design of a boat launch. The trial court held that CORD lacked authority to approve the launch because it was a class III public highway, and could not approve "new highway projects." Disagreeing with the trial court's interpretation of RSA 162-C:6, the Supreme Court reversed and remanded for further proceedings. View "Town of Newbury v. New Hampshire Fish & Game Dept." on Justia Law

Respondent Town of Danville appealed a Superior Court order abating "land use change tax" (LUCT) assessments issued to petitioners Maplevale Builders, LLC, Hoyt Real Estate Trust, and John H. and Maryann Manning, on the basis that the LUCT bills were untimely under RSA 79-A:7 (Supp. 2006) (amended 2009, 2010, 2012). Upon review, the Supreme Court concluded that the superior court erred in ruling that all of the lots of the subdivision in question changed in use in 2009, when the Planning Board granted final subdivision approval. Because the trial court did not follow the caselaw in its consideration of when each lot changed in use, the Supreme Court vacated its abatement order. The parties did not ask the Court to determine on appeal when each lot changed in use or whether the exception in RSA 79-A:7, V(a) applied. Thus, the Court remanded for a redetermination of when each lot changed in use, and whether in light of the change in use date, the LUCT bills were timely. The Court concluded that the amended version of RSA 79-A:7, II(c) applied to any notice or discovery of change in use occurring on or after April 1, 2009. View "Maplevale Builders, LLC v. Town of Danville" on Justia Law

Petitioner Christina Deyeso appealed a superior court order that denied her petition for a declaratory judgment and injunctive relief, and awarded summary judgment in favor of respondent Jules Cavadi, permitting the forced sale of Deyeso's home. Deyeso and Stephen Barnes have three children together but never married. Deyeso is currently married to Keith Walsh, with whom she lives in Stratham at a home that she purchased in 1997. Cavadi held a 1991 judgment against Barnes. In September 2004, in a common-law "reach and apply" action, he sued Barnes and Deyeso in a Massachusetts trial court, alleging that Barnes paid for certain real estate held in Deyeso's name in Massachusetts and New Hampshire, including the Stratham property. A Massachusetts superior court found that Barnes had an equitable interest in the Property valued at $94,854, thus entitling Cavadi to an equitable lien on the Property in that amount. After accounting for mortgages on the property, the equity value remaining in the Property was $72,373.41. Deyeso appealed the Massachusetts trial court's decision to the Massachusetts Supreme Court, which upheld the portion of the trial court's order declaring Barnes's interest in the Property to be $94,854. Cavadi then obtained an order in Massachusetts allowing a public auction of the Property to recover the amount of Barnes's interest. Deyeso claimed that both she and her husband were entitled to homestead protection under RSA 480:1 (Supp. 2012), which, given the prior mortgages, would leave no equity for Cavadi in the event of a forced sale. The trial court then ruled in favor of Deyeso, concluding that, although her husband could claim the homestead protection due to his lack of ownership, her homestead interest prevailed over Cavadi's equitable lien. Cavadi then moved for reconsideration, and the the trial court eventually granted Cavadi's motion, concluding that, Deyeso's "conduct in this case amounts to fraudulent behavior" and, therefore, permitted the court to use "its equitable powers to negate [her] homestead exemption." Upon review, the New Hampshire Supreme Court reversed: "assuming, however, that Deyeso accepted the money from Barnes with the knowledge that he sought to avoid satisfying his debt to Cavadi, RSA 480:1 protects her homestead interest in the Property. . . . We therefore agree with Deyeso that, in the absence of a showing of fraud, deception, or other misconduct in the procurement of the funds used to purchase, invest in, or improve a homestead, the statutory homestead exemption applies ñ even when a judgment debtor's funds are so used with the intent of hindering or avoiding a creditor's legitimate claims." View "Deyeso v. Cavadi" on Justia Law

Defendant Scott Schultz appealed a circuit court order that denied his motion to dismiss and one that granted judgment to plaintiff Wells Fargo Bank in an action for possession of real estate. Defendant was notified that the bank would foreclose on his property in 2009. He did not act to enjoin the foreclosure. The sale took place May 2011. A month later, Defendant was served with an eviction notice. A month after the eviction, the bank filed a possessory action. Defendant moved to dismiss that action, arguing that plaintiff's possessor right was based on two prior assignments that were fatally defective "if not fraudulent." The trial court denied defendant's motion. Finding no error with the circuit court order, the Supreme Court affirmed. View "Wells Fargo Bank v. Schultz " on Justia Law