Justia Real Estate & Property Law Opinion Summaries

In 1907, the then-owner executed the “Stimson deed,” transferring to the Railroad “its successors and assigns, the right to cross said right of way at any point or points where such crossing is desired” the land at issue. POTB later took ownership of the railroad. A 2007 storm caused severe damage to the railroad tracks. POTB did not repair the damage, resulting in the disbandment of the Oregon Tillamook Railroad Authority. POTB, with governmental entities, established the Salmonberry Trail Intergovernmental Agency, to construct “a new multi-use trail” that would “connect[] to a wide network of existing recreation[al] trails and parks, educational opportunities, and heritage sites” over portions of the railroad line. In 2016, POTB filed a notice of intent to abandon service of the portions of the railroad line at issue with the Surface Transportation Board, which issued a Notice of Interim Trail Use (NITU) allowing interim trail use and railbanking under the National Trails System Act Amendments, 16 U.S.C. 1247(d).The Claims Court and Federal Circuit rejected Stimson’s claim that the creation of the trail constituted a Fifth Amendment taking. Railbanking and interim trail use are within the scope of the easement. Stimson failed to show abandonment for all purposes and had no compensable property interest in the land to which the deed pertained. View "Stimson Lumber Co. v. United States" on Justia Law

In 2018, the Plaintiffs each purchased real estate in Cleveland, planning to rehabilitate and redevelop the properties. Before those purchases, Cleveland declared the buildings on the properties public nuisances, condemned them, and ordered that they be demolished. Following the purchases, and after the Plaintiffs invested time and resources into renovating the buildings, Cleveland authorized private contractors to demolish them. After the demolition of the buildings, the Plaintiffs sued, arguing that the demolitions violated state laws and federal constitutional provisions. The district court granted the defendants summary judgment on the constitutional claims and declined to exercise supplemental jurisdiction over the state law claims.The Sixth Circuit affirmed. Each Plaintiff received “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” After their purchases, Cleveland sent “new owner letters” via certified mail both to the property address and to each Plaintiff's statutory agent, including both the notice of condemnation and demolition order. Neither Plaintiff applied for required rehabilitation permits. View "First Floor Living LLC v. City of Cleveland, Ohio" on Justia Law

The Supreme Court affirmed the decision of the district court granting summary judgment in favor of the Administrator of the Division of State Lands of the State Department of Conservation and Natural Resources and dismissing Appellants' petition under Nev. Rev. Stat. 233B.110 for a declaratory judgment that a fee-setting regulation was invalid, holding that there was no error.At issue was NAC 322.190, a regulation that sets permit fees for the residential use of piers and buoys on navigable waters in Nevada. Appellants petitioned for a declaratory judgment that the fee-setting regulation was invalid. The district court granted summary judgment in favor of the Division. The Supreme Court affirmed, holding that the Division did not exceed its statutory authority in promulgating NAC 322.195, and Appellants failed to overcome the presumption that the regulation is valid. View "Killebrew v. Donohue" on Justia Law

Respondent Paramount Pictures Corporation (Paramount) sought a refund of taxes paid on its personal property for the 2011 tax year. Paramount first appealed to the Los Angeles County Assessment Appeals Board (the Board). The property was assessed a final value of $137,397,278. Following a hearing, the Board agreed with the valuation proposed by the Assessor and found that Paramount failed to carry its burden of demonstrating additional obsolescence. Paramount appealed the Board’s decision to the trial court. The trial court found: (1) the Board committed a methodological error in excluding Paramount’s initial income approach valuation and (2) the Board issued inadequate findings regarding the significance of Paramount’s pre-lien and post-lien sales of personal property. In a separate ruling, the trial court awarded Paramount attorney fees under Revenue and Taxation Code Section 1611.6, which allows a taxpayer to recover fees for services necessary to obtain proper findings from a county board. The County timely appealed both orders.   The Second Appellate District reversed the trial court’s decision, concluding the Board committed neither methodological error nor issued findings that were less than adequate within the meaning of section 1611.5. First, Paramount did not challenge the validity of the cost approach relied upon by the Assessor and Board, and it did not otherwise identify any legal error in the Board’s rejection of its income approach valuation. Second, the hearing transcripts adequately disclose its rulings and findings on the pre-lien and post-sales data. The court remanded so the trial court may consider the question of whether substantial evidence supports the Board’s finding that Paramount failed to establish additional obsolescence. View "Paramount Pictures Corp. v. County of L.A." on Justia Law

Darren and Tamara Berger (“Bergers”) appealed a judgment dismissing their claims of violation of a planned unit development (PUD), breach of contract, breach of fiduciary duty, private nuisance, and negligence against their neighbors Jason and Krysta Sellers (“Sellers”), Sellers’ homebuilder Jordan Anderson and Big River Builders, Inc. (together, “Builder”), and the Misty Waters Owners’ Association (“Association”). Sellers and Builder cross-appealed the judgment dismissing their claims of defamation, interference with contract and business, and negligence against Bergers and neighbor Jeff Carlson. The central issue in this case was whether the PUD minimum setback from the bay could be changed by obtaining a new Letter of Map Revision (LOMR) from the Federal Emergency Management Agency (FEMA) without an amendment to the PUD. To this, the North Dakota Supreme Court concluded the PUD unambiguously set the minimum setback from the bay as the contour line in the 2005 LOMR-F and therefore Sellers’ home violated the PUD. The Supreme Court reversed the district court’s grant of summary judgment on Bergers’ claims against Sellers for violation of the PUD, breach of restrictive covenants, negligence (drainage), and private nuisance (setbacks). The Court remanded with instructions to grant Bergers partial summary judgment on their claims against Sellers for violation of the PUD and breach of restrictive covenants and for declaratory relief (against Sellers) as requested in their motion for partial summary judgment. The Court reversed the trial court’s grant of summary judgment on Bergers’ claims against the Association for breach of fiduciary duty and negligence. The Court affirmed the court’s grant of summary judgment on all of Bergers’ claims against Builder, namely the PUD violation, breach of restrictive covenants, and negligence. The Court affirmed the grant of summary judgment on Bergers’ claims against the Association for breach of restrictive covenants and private nuisance. The Court affirmed the grant of summary judgment on all of Sellers’ and Builder’s claims. View "Berger, et al. v. Sellers, et al." on Justia Law

In this discretionary appeal brought by Discovery Oil and Gas, LLC to determine whether an express indemnification provision in its contract with Wildcat Drilling, LLC evinced a clear intent by the parties to abrogate the common-law notice requirements for indemnification set forth in Globe Indemnity Co. v. Schmitt, 53 N.E.2d 790 (Ohio 1944), the Supreme Court held that the requirements announced in Globe Indemnity did not apply.Specifically, the Supreme Court held (1) when the parties have entered into a contract containing an express indemnification provision, the common-law notice requirements set forth in Globe Indemnity do not apply, and the parties are bound by the terms of their contract because the provision evinces a clear intent by the parties to abrogate the common law; and (2) the language of the contract in this case evicted the parties' clear intent to abrogate the common-law notice requirements for indemnification. View "Wildcat Drilling, LLC v. Discovery Oil & Gas, LLC" on Justia Law

Fitness International, LLC was operating an indoor gym and fitness center when it entered into an amended lease with KB Salt Lake III, LLC, that required Fitness International to renovate the premises. However, the COVID-19 pandemic prompted government orders that closed indoor gyms but allowed commercial construction to continue. Fitness International nevertheless stopped construction at the Chatsworth site, remained in possession of the premises, and stopped paying rent. KB Salt Lake filed an unlawful detainer action, and the trial court granted KB Salt Lake’s motion for summary judgment. Fitness International appealed.   The Second Appellate District affirmed the trial court’s judgment. The court explained that Fitness International argued that the lease is a “monthly installment contract” and that each month it could not operate the premises as a fitness facility, frustrated the purpose of the contract. The court wrote that neither the pandemic nor the COVID-19 closure orders, however, prevented Fitness International from reopening the gym. Thus, even if California law recognized temporary frustration of purpose, and even if the lease was an “installment contract,” Fitness International still had to make rent payments under the lease. Moreover, the court explained that Fitness International argues the purpose of section 1511 “is to excuse performance under circumstances like these,” but Fitness International cites no authority describing the purpose of section 1511, nor does Fitness International explain how the trial court’s ruling was contrary to any such purpose. View "Fitness International v. KB Salt Lake III" on Justia Law

The Supreme Court affirmed the judgment of the trial court in favor of Reagan Outdoor Advertising in this appeal from the determination that Reagan's billboard had lost its legal nonconforming status, holding that the trial court correctly entered judgment for Reagan.An ordinance of the city of Noblesville bans pole signs, which are signs affixed to poles or other uprights installed in the ground. Reagan, whose billboards the city classifies as pole signs, was allowed signs to remain that pre-dated the ordinance if they were kept in good repair and not relocated. When Reagan repaired damage to one of the billboard's support posts the city issued a stop-work order before Reagan could reattach the sign's display, concluding that Reagan had relocated the sign, which therefore lost its legal nonconforming status. The zoning board of appeals affirmed, but the trial court reversed. The Supreme Court affirmed, holding that the ordinance's use of the word "relocate" was ambiguous and, consistent with this Court's interpretative canons, must be resolved in Reagan's favor. View "Noblesville Indiana Board of Zoning Appeals v. FMG Indianapolis, LLC" on Justia Law

Endeavor Operating Company, LLC (Endeavor) is a “holding company” that owns “various subsidiaries in the entertainment, sports, and fashion business sectors.” Endeavor sued the insurers for (1) declaratory relief and (2) breach of contract related to COVID-19 closures. The insurers demurred to the complaint. The trial court issued a ruling (1) sustaining the demurrer without leave to amend and (2) denying Endeavor’s motion for a new trial. The court modified its initial ruling to find that the “actual” or “threatened presence” of COVID-19 or the SARS-CoV-2 virus “does not constitute a physical loss or damage required to trigger coverage for property insurance coverage” but reaffirmed its initial ruling that the contamination/pollution exclusion applied, which in the court’s view obviated its need to address the argument Endeavor raised for the first time in its new trial motion. Endeavor appealed.   The Second Appellate District affirmed. The court concluded that the insurance policy unambiguously requires “direct physical loss or damage to property” before Endeavor may recover under the business interruption clauses. The court held that Endeavor failed as a matter of law to plead “direct physical loss or damage to property.” The court explained that California courts are in accord that the phrase “direct physical loss or damage to property” means a “‘distinct, demonstrable, physical alteration’” of the insured property. This is the default definition to be applied where a policy does not provide a different definition of “direct physical loss or damage.” The policy here provides no different definition. View "Endeavor Operating Co., LLC v. HDI Global Ins. Co." on Justia Law

The Supreme Court reversed the determination of the circuit court that the Day County Board of Adjustment could reconsider and modify a previously-granted variance, holding that the Board of Adjustment no longer had the authority to reconsider the variance when it did so.Appellants were informed that their property violated the Day County Planning and Zoning Ordinance because they altered the grading and added rocks. Appellant subsequently sought a variance from the ordinance allowing the existing grading and rocks to remain. The Board of Adjustment unanimously approved the application. The Board subsequently reconsidered the variance and modified it. Appellants later applied for a permit to build a house on their property. The Board of Adjustment denied the application because Appellants had not complied with the modified variance. The circuit court denied Appellants' request for relief and dismissed their complaint. The Supreme Court reversed, holding that because the Board of Adjustment did not reconsider the variance before the appeal time expired, Appellants were entitled to a declaration of their rights under the variance the Board granted. View "Gonsor v. Day County Planning Commission" on Justia Law