Justia Real Estate & Property Law Opinion SummariesArticles Posted in Oregon Supreme Court
Oakmont, LLC v. Dept. of Rev.
Oakmont LLC owned an apartment complex built in 1996. Oakmont appealed the assessed value for the 2009-10 tax year for that complex on the ground that structural damages resulting from construction defects had substantially reduced the property’s value. In 2011, the county assessor and Oakmont agreed to reduce the assessed value of the complex from over $21 million to $8.5 million for the 2009-10 tax year. Because the time for appealing the valuation for the 2008-09 tax year had passed, the taxpayer asked the Department of Revenue to exercise its supervisory jurisdiction to correct a “likely error” in the 2008-09 assessment. The department concluded that it had no jurisdiction to consider Oakmont’s request, and the Tax Court reversed. Both the county and the department appealed. After review, the Oregon Supreme Court found the Tax Court correctly held that the department had supervisory jurisdiction over Oakmont’s petition to reduce the assessed value of the property for the 2008-09 tax year. Oakmont had no remaining statutory right of appeal, and the parties to the petition agreed to facts indicating a likely error on the tax rolls. It follows that the department had supervisory jurisdiction to consider whether there was in fact an error on the tax rolls and whether, if there was, the department should exercise its discretion to correct any error. The department did not reach those issues, and the Supreme Court agreed with the Tax Court that the case should have been remanded to the department to consider those issues in the first instance. View "Oakmont, LLC v. Dept. of Rev." on Justia Law
Posted in: Government & Administrative Law, Oregon Supreme Court, Real Estate & Property Law, Tax Law
City of Eugene v. Comcast of Oregon II, Inc.
The City of Eugene sued to collect from Comcast of Oregon II, Inc. (Comcast) a license fee that the city, acting under a municipal ordinance, imposes on companies providing “telecommunications services” over the city’s rights of way. Comcast did not dispute that it used the city’s rights of way to operate a cable system. However it objected to the city’s collection effort and argued that the license fee was either a tax barred by the Internet Tax Freedom Act (ITFA), or a franchise fee barred by the Cable Communications and Policy Act of 1984 (Cable Act). The city read those federal laws more narrowly and disputed Comcast’s interpretation. The trial court rejected Comcast’s arguments and granted summary judgment in favor of the city. The Court of Appeals affirmed. Finding no reversible error, the Supreme Court affirmed. View "City of Eugene v. Comcast of Oregon II, Inc." on Justia Law
Posted in: Business Law, Communications Law, Government & Administrative Law, Oregon Supreme Court, Real Estate & Property Law, Tax Law, Zoning, Planning & Land Use
Couch Investments, LLC v. Peverieri
Leonard and Judith Peverieri and Peverieri Investments, LLC (landlords) appealed a trial court’s judgment confirming an arbitration award in favor of Couch Investments, LLC (tenant). Landlords argued that the arbitrator exceeded his powers when he found not only that landlords were liable for the cost of storm water drainage improvements required by the Department of Environmental Quality (DEQ), but also ordered remedies. Landlords argued on appeal that the trial court erred in denying their petition to vacate the arbitration award, and that the Court of Appeals erred in affirming the trial court’s judgment. After review, the Supreme Court affirmed the outcome, but on different grounds from the Court of Appeals. View "Couch Investments, LLC v. Peverieri" on Justia Law
ODOT v. Alderwoods
As part of a highway improvement project, plaintiff Oregon Department of Transportation (ODOT or the state), brought a condemnation action against defendant Alderwoods (Oregon), Inc., seeking to acquire "[a]ll abutter’s rights of access, if any," between defendant’s property and Highway 99W. The improvement project involved rebuilding the sidewalk along Highway 99W and eliminating two driveways that previously had allowed direct vehicular access from defendant’s property to the highway. Defendant’s property retained access to the highway, however, by means of two driveways onto a city street that ran perpendicular to and intersected the highway. Before trial, the state moved in limine to exclude as irrelevant evidence of any diminution in value of defendant’s property as a result of the loss of the two driveways. The trial court concluded that the elimination of those driveways had not effected a taking of defendant’s right of access to the highway and granted the state’s motion. The Court of Appeals affirmed. The Supreme Court agreed with the appellate court that there was no taking in this case, and affirmed. View "ODOT v. Alderwoods" on Justia Law
Posted in: Constitutional Law, Oregon Supreme Court, Real Estate & Property Law, Zoning, Planning & Land Use
Brownstone Homes Condo. Assn. v. Brownstone Forest Hts.
A condominium homeowners association sued a contractor for negligence. The contractor’s insurer refused to defend the contractor against the action, and the contractor and the homeowners association thereafter entered into a settlement that included a stipulated judgment against the contractor, a covenant by the homeowners association not to execute that judgment, and an assignment to the homeowners association of the contractor’s claims against its insurer. When the homeowners association then initiated a garnishment action against the insurer, however, the trial court dismissed the action on the ground that, under “Stubblefield v. St. Paul Fire & Marine,” (517 P2d 262 (1973)), the covenant not to execute had released the contractor from any obligation to pay the homeowners association and, in the process, necessarily released the insurer too. The homeowners association appealed, arguing that “Stubblefield” either was distinguishable on its facts or had been superseded by statute. In the alternative, it argued that Stubblefield should have been overruled. The Court of Appeals affirmed. After its review, the Supreme Court concluded that, although Stubblefield was not distinguishable and had not been superseded by statute, it was wrongly decided. The Court reversed and remanded for further proceedings. View "Brownstone Homes Condo. Assn. v. Brownstone Forest Hts." on Justia Law
Hall v. Oregon
Plaintiffs, the owners of real property in Linn County, brought an inverse condemnation action against the Oregon Department of Transportation (ODOT). Plaintiffs alleged that ODOT, by repeatedly making representations to others about its intention to landlock their property and initiate a condemnation action, created a nuisance that "blighted" plaintiffs' property, resulting in a compensable taking of the property under Article I, section 18, of the Oregon Constitution. A jury agreed and awarded plaintiffs more than $3,000,000 in damages. ODOT appealed, and the Court of Appeals reversed, holding that no taking had occurred. The Supreme Court allowed plaintiffs’ petition for review, and agreed with the Court of Appeals decision. Therefore the Court affirmed the appellate court, reversed the trial court and remanded the case for further proceedings. View "Hall v. Oregon" on Justia Law
Noble v. Dept. of Fish & Wildlife
The Court of Appeals rejected petitioners' contention that Oregon Department of Fish and Wildlife's (ODFW) approval of "channel-spanning fishways" associated with two small, privately maintained dams downstream from their property violated state law, including ODFW's own rules, pertaining to fish passage for native migratory fish. Petitioners argued that the approvals were inconsistent with administrative rules and statutes that, in their view, required that fish passage be provided whenever water is flowing past the dams, whether over the tops of the dams or through outlet pipes required by the state Water Resources Department (WRD). The Court of Appeals held that ODFW had plausibly construed its own rules as requiring passage only when water is flowing over the dams, and that the rules, as interpreted, were not inconsistent with the controlling statutes. Petitioners sought review and the Supreme Court granted their petition. The Supreme Court concluded that ODFW's interpretation of the rules was implausible. The case was remanded to the agency for further action under a correct interpretation. View "Noble v. Dept. of Fish & Wildlife" on Justia Law
Posted in: Environmental Law, Government & Administrative Law, Oregon Supreme Court, Real Estate & Property Law
Dunn v. City of Milwaukie
The City of Milwaukie used highly pressurized water to clean sewer lines adjacent to plaintiff's house, causing sewage to back up through toilets and bathroom fixtures. Plaintiff sued the city seeking compensation for the damage to her home on two theories, negligence and inverse condemnation. The trial court dismissed the negligence claim before trial as barred by the statute of limitations. The inverse condemnation claim went to trial before a jury. At the close of plaintiff's case, the city moved for a directed verdict, arguing that the evidence did not establish a compensable taking of property under the Oregon Constitution. The trial court denied the city's motion, and the jury found for plaintiff, awarding $58,333 in damages. On appeal, the Court of Appeals affirmed. On the facts before it, the Supreme Court concluded that the city's actions did not give rise to a compensable taking. The Court therefore reversed the decision of the Court of Appeals. View "Dunn v. City of Milwaukie" on Justia Law
Posted in: Constitutional Law, Government & Administrative Law, Oregon Supreme Court, Real Estate & Property Law
Brandrup v. ReconTrust Co.
Four certified questions of law from the United States District Court for the District of Oregon went before the Oregon Supreme Court. All centered on the mortgage finance industry's practice of naming the Mortgage Electronic Recording System, Inc. (MERS) rather than the lender, as a security instrument's mortgagee or beneficiary and the Oregon Trust Deed Act (OTDA). The Oregon Supreme Court concluded that under Oregon Law, an entity like MERS cannot be a trust deed's beneficiary; ORS 86.735(1) does not require recordation of "assignments" of a trust deed by operation of law that results from the transfer of the secured property; MERS cannot hold or transfer legal title to the trust deed; and MERS' authority to foreclose must derive from the original beneficiary and successors in interest. View "Brandrup v. ReconTrust Co." on Justia Law
Niday v. GMAC Mortgage, LLC
The issue before the Supreme Court in this case centered on nonjudicial foreclosure of trust deeds under the Oregon Trust Deed Act (OTDA) and the mortgage finance industry's practice of naming the Mortgage Electronic Recording System, Inc., (MERS), rather than the lender, as a trust deed's "beneficiary." Plaintiff argued that, although the trust deed identified MERS as the beneficiary of the trust deed, neither MERS nor any of the other entities involved in the foreclosure had any legal or beneficial interest in the trust deed that would allow them to foreclose. The trial court granted summary judgment to defendants, but the Court of Appeals reversed, holding that a genuine issue of material fact existed as to whether all of the requirements for nonjudicial foreclosure set out in the OTDA had been satisfied. The Supreme Court, after its review, also concluded that a genuine issue of material fact existed, but for a different reason than the one the Court of Appeals identified. View "Niday v. GMAC Mortgage, LLC" on Justia Law