Justia Real Estate & Property Law Opinion Summaries

Appellants Shenandoah, LLC, David Shlansky, Ting Chang, and other entities and individuals, appealed the Environmental Court's summary judgment decision upholding an "Act 250" jurisdictional opinion. Appellants have a variety of overlapping interests. Mr. Shlansky created an irrevocable trust (Trust) to benefit his and his wife Chang's children. As settler of the Trust, Mr. Shlansky contributed the property that is the subject of the underlying jurisdictional opinion. The Trust has an ownership stake in various companies that have engaged in land-development activities in the relevant jurisdictional area. Shenandoah, LLC, one such created entity, sought to build a ten-unit residential housing project. In August 2008, Shenandoah requested a jurisdictional opinion to determine if the project required an "Act 250" permit. In a September 2008 decision, the district coordinator found that the project required an Act 250 permit because it involved the construction of a housing project with ten or more units. Appellants appealed portions of this decision to the Environmental Court. The court upheld the district coordinator's jurisdictional opinion. The court concluded that Mr. Shlansky and Ms. Chang benefited from the Trust's land-development activities so the Trust's development activities were attributable to them personally. Appellants challenged this conclusion on appeal. As support for their position, they pointed to the affidavits filed by Mr. Shlansky, Ms. Chang and "the legal existence of the Trust, which is irrevocable." Upon review of the lower court record and the applicable legal authority, the Supreme Court affirmed the Environmental Court's decision. As the Environmental Court concluded, benefit to the parents rendered them "persons" affiliated with subdivisions and development previously undertaken by entities owned or affiliated with the Trust as defined by Act 250.

A group neighbors (Neighbors-Appellants) in the Town of Dorset appealed an Environmental Court decision that granted Applicant Bradford Tylerâs application for a zoning permit for the construction of a self-storage facility in the Dorset Village Commercial District. Appellants contend that the court erred in determining the rental storage units to be an authorized land use within the applicable Dorset zoning district. Applicant Tyler owns and resides on a 5.6-acre property located in the Village Commercial District (VC District) of Dorset. He filed for a zoning permit to construct a self-storage facility on his property. The Town Planning Commission issued written approval of applicantâs site development plan. Following this, the Town Zoning Administrator issued a zoning permit. Interested neighbors appealed to the Dorset Zoning Board of Adjustment, contending that applicantâs proposed self-storage facility is not a âretail sales/rentalsâ use, as required by the townâs Zoning Bylaws for development in the VC District. Neighbors, in response to applicant questioning the validity of a decision rendered by less than a majority of the Board, appealed to the Environmental Court. They asserted that, regardless of the majority vote issue, the earlier approval by the Zoning Administrator was erroneous and should be voided. Applicant cross-appealed, arguing that the Boardâs denial was invalid and that the proposed facility was a permitted use in the VC District. The parties filed cross-motions for summary judgment on the question of whether a storage facility was permitted. The Environmental Court granted applicantâs motion and denied Neighborsâ, holding that the proposed use was permissible as a âretail rental.â Upon review of the lower court's record and the applicable zoning statutes, the Supreme Court acknowledged the conflict created by a plain reading of the definition of "retail" in the statute: "[d]efining âretailâ in terms of sales arguably creates a conflict when used to define âretail rentalsâ . .. Using the common understanding of the words involved, and in the context of the overall scheme and purpose of the VC District, it is clear that the Bylawsâ drafters intended âretail sales/rentalsâ to include only residential and small-scale commercial establishments trading in services or in goods, for sale and for rent, as opposed to renting storage space as applicant proposes." Accordingly, the Court reversed the decision of the Environmental Court.

Defendants Charles and Hubert Lovell appealed a grant of summary judgment to Plaintiff Duane Amsden. In 1997, Phillip Lovell, father of Charles and Hubert, executed a will appointing Charles and his stepson Duane as co-executors. He also executed a power of attorney naming Charles as his attorney-in-fact. The principal asset of the senior Lovell's estate was a farm. In 2003, Philip Lovell's wife Zada quitclaimed her interest in the farm to her husband. Then, Charles, acting as attorney-in-fact, executed a quitclaim deed conveying the farm from his father to Hubert and himself for no consideration. Several of the Lovell's other children and stepchildren, including Plaintiff, signed a consent statement dated May 31, 2003, approving the transfer. In 2008, following the death of Zada Lovell, Plaintiff filed a declaratory judgment action in the probate court claiming the transfer of the farm to defendants was invalid under state law, and sought to establish the estate of Phillip Lovell as the farm's rightful owner. The probate court issued a declaratory judgment order in favor of Defendants, finding that the quitclaim transfer was valid because the language of the POA failed to restrict defendant Charles Lovell's power to gift the property to himself or others. The superior court reversed, granting plaintiff's motion for summary judgment. The court found that the amended POA statute prohibited an attorney-in-fact from making gifts of the principal's property to himself or others unless the POA "explicitly" granted such authority. Defendants appealed. Upon review of the POA and records of the Lovell estate, the Supreme Court affirmed the superior court order. The Court found that Charles Lovell could not, pursuant to his powers as his father's attorney-in-fact, transfer title of his father's farm to himself and his brother, Hubert Lovell, where the power of attorney failed to explicitly grant the power to make such a gift.

This case concerned the use of a hilltop cemetery on a farm in Hartland, Vermont. The petitioner, Harold Guite, now owns the farm property. He claimed that the cemetery plot was owned by heirs of the Aldrich family, who settled the property as a farm in approximately 1775 and remained there until selling the farm in 1853. Respondent Jerome King's family purchased the farm property in 1950 and owned it until 1983. Prior to selling the property, Respondent buried the cremated remains of his parents in the hilltop cemetery. Petitioner was aware of the cemetery and its location when he bought the property. Petitioner filed suit for a declaratory judgment regarding his rights in the hilltop cemetery. Petitioner wanted to remove the cemetery and return the plot to "private farm property." Respondent claimed that the Aldrich family reserved only an easement in the cemetery plot. Thus, he contended title to the plot remained with the farm so that he could use it to bury his parents, and, by the deed to the property and by operation of Vermont law, the remains could not be moved. The trial court adopted Respondent's theory and denied the petition. Upon review of the trial court records, the Supreme Court concluded that Petitioner's theory was correct and reversed the decision against him. The Court remanded the case for further proceedings.

Defendant Stowe Mountain Club, LLC (SMC) appealed a judgment in favor of Plaintiff David Smalley. SMC and Mr. Smalley were neighbors. The trial court found that portions of a golf course built and operated by SMC violated certain restrictive covenants in Mr. Smalleyâs deed. On appeal, SMC argued that the court misinterpreted the covenants in Mr. Smalleyâs deed, and as a result, refused to admit certain evidence or allow for additional discovery to allow the court to fully consider the case. The Supreme Court reviewed the trial court record, and found that the parties moved for summary judgment before the exact nature of issues concerning the chain-of-title and restrictive covenants could be fully developed. The Court felt the decision was therefore premature and reversed the trial courtâs grant of summary judgment. The Court remanded the case for further proceedings.

Homeowners Kenneth and Larissa Trinder filed a declaratory judgment action to establish Defendant Connecticut Attorneys Title Insurance Companyâs (Company) obligation to defend or indemnify them regarding an encroachment of their septic system onto their neighborâs property. The Trinders purchased the land in question in 2005. In conjunction with the sale, they purchased title insurance from the Company to defend themselves against situations that might make their title unmarketable or where they would be forced to remove an existing structure on their property because it extends onto someone elseâs. The Trindersâ neighbor was the Mount Holly Community Historical Museum. The Museum called the Trinders to inform them that the Museum intended to expand its facility, and it wanted to reach a settlement with the Trinders that implicated the use of their septic system. The Trinders perceived the Museumâs call (and subsequent letter) as a threat to their title, and contacted their real estate closing attorney, who filed a claim to the Company on their behalf. The Company responded that the matter didnât impact their title. In September, 2008, the Trinders filed suit against the Company seeking to protect its right to have the septic system on the museumâs land, based on the âforced removal and marketabilityâ provisions of the title insurance. Following a bench trial, the court ordered judgment in favor of the Company. The court concluded a plain reading of the insurance policy showed there was no coverage under the forced removal clause, and that the marketability provision did not apply. The Supreme Court agreed with the lower courtâs reasoning and affirmed its order on appeal.