Keeping Current-Property

Keeping Current-Property offers a look at selected recent cases, rulings and regulations, literature, and legislation. The editors of Probate & Property welcome suggestions and contributions from readers.


ADVERSE POSSESSION: Continuity. Subdivision by record owner does not interrupt adverse possession of neighbor. Ocmulgee Properties v. Jeffery, No. 00CA1593, 2001 Colo. App. LEXIS 1670 (Colo. Ct. App. 2001).

ADVERSE POSSESSION: Laches. Laches doctrine does not defeat a 50-year-old adverse possession claim because the evidence showed the record owner was always aware of the adverse possession. Magee v. Garland, 799 So. 2d 154 (Miss. Ct. App. 2001).

BANKRUPTCY: Leases. A sublessee has no administrative priority damage claim against the sublessor’s bankruptcy estate, because it failed to secure nondisturbance protection from the master landlord for the sublessee. Bankruptcy Code § 365(d)(3) applies only to administrative claims of lessors against bankruptcy lessees. Einstein/Noah Bagel Corp. v. Smith (In re BCE West, L.P.), 264 B.R. 578 (B.A.P. 9th Cir. 2001).

BROKERS: Commissions. A nonbroker can enforce the commission obligation assigned by a broker despite a statute prohibiting an unlicensed person from enforcing a commission claim. Ritchie v. Weston, Inc., 757 N.E.2d 835 (Ohio Ct. App. 2001).

BROKERS: Listing agreements. A broker is entitled to a commission under an exclusive listing contract requiring a commission on any sale to a broker-procured prospect within a "reasonable term" after the listing termination. The prospect was procured solely by broker’s marketing sign, and the sale closed within weeks of the listing termination. Upper Cape Realty Corp. v. Morris, 756 N.E.2d 1193 (Mass. App. Ct. 2001).

BROKERS: Unjust enrichment. A listing broker’s malfeasance does not bar unjust enrichment claim for cooperating broker’s services. Reisenfeld & Co. v. Network Group, Inc., 277 F.3d 856 (6th Cir. 2002).

CLOSINGS: Title search. The purchaser’s attorney did not commit malpractice by failing to review the zoning records to determine whether a use limitation was in effect with respect to the residential property to be purchased, nor by failing to advise the purchasers of the limited scope of the search. Schlindrer v. Manson, No. CV980086143S, 2001 Conn. Super. LEXIS 3379 (Conn. Super. Ct. 2001).

CONDEMNATION: Public purpose. A city may legitimately acquire private property for future use as a yet-unplanned park, presidential library, and museum. Pfeifer v. City of Little Rock, 57 S.W.3d 714 (Ark. 2001).

If a parcel has access on a dedicated street, the city cannot constitutionally condemn other property to provide an alternate access way solely to accommodate a more intense private development on the parcel. Township of West Orange v. 769 Associates, 775 A.2d 657 (N.J. Super. Ct. App. Div. 2001).

CONSTITUTIONAL LAW: Regulatory takings. Claim of wetland regulatory taking remanded based upon failure to follow two-tier takings inquiry established by Palazzolo v. Rhode Island. On remand the court must look to the regulation’s effect on the entire parcel owned by the landowner and focus on the property rights as an aggregate rather than merely the mineral rights relevant to the current owner’s use. Animas Valley Sand & Gravel, Inc. v. Bd. of County Comm’rs, 38 P.3d 59 (Colo. 2001).

Dismissal of regulatory taking claim based upon law restricting conversion of rental units to owner occupancy also held subject to Palazzolo analysis. An elaborate list of second-tier analysis factors must be considered on remand. Cwynar v. City & County of San Francisco, 109 Cal. Rptr. 2d 233 (Cal. Ct. App. 2001), review denied, No. S100031, 2001 Cal. LEXIS 6617 (Cal. 2001).

DEEDS: Validity. A deed on which one co-tenant forges the other co-tenant’s signature is void as to subsequent purchasers, although other equitable circumstances may bar the owner from challenging subsequent purchaser’s title. Zurstrassen v. Stonier, 786 So. 2d 65 (Fla. Ct. App. 2001).

A deed from a grantor subject to a conservatorship is void even as to a bona fide purchaser. Scott v. Nelson, No. 2000-CA-01927-COA, 2002 WL 85766 (Miss. Ct. App. 2002).

EASEMENTS: Abandonment. Clear and convincing evidence is required to prove intent to abandon easement rights. Shields v. Villareal, 33 P.3d 1032 (Or. Ct. App. 2001).

EASEMENTS: Prescriptive. Use of neighbor’s property is presumed to be permissive in the absence of persuasive evidence to the contrary. Kunkel v. Fisher, 23 P.3d 1128 (Wash. Ct. App. 2001).

INSTALLMENT SALES: Estoppel. Seller is estopped from denying the validity of an installment sale contract that was implicitly extended for many years by the parties without any written confirmation. Hinton v. Stephens, No. W2000-02727-COA-R3-CV, 2001 Tenn. App. LEXIS 750 (Tenn. Ct. App. 2001).

INSURANCE: Excess coverage. A statute requiring payment of the stated policy value allows an insured to recover on two policies from different insurers for destroyed property, even if the combined amount of coverage exceeds the loss. St. Paul Reinsurance Co. v. Irons, 45 S.W.3d 366 (Ark. 2001).

LEASING: Insurance. Waiver of insurance subrogation rights is implicit in residential leases, but in commercial leases it depends on evidence of intent on a case-by-case basis. Seaco Insurance Co. v. Barbosa, 761 N.E.2d 946 (Mass. 2002).

LEASING: Premises liability. A landlord’s responsibility for premises maintenance does not avoid tenant liability for third-party injury from unsafe condition, but the tenant may cross claim against the landlord for breach of its duty. O’Connell v. New Jersey Sports & Exposition Auth., 766 A.2d 786 (N.J. Super. Ct. App. Div. 2001).

LEASING: Renewal option. Holdover and payment of rent beyond the initial term implicitly exercises a renewal option not requiring a renewal notice. Troutman Oil Co. v. Lone, 57 S.W.3d 240 (Ark. Ct. App. 2001).

MORTGAGES: Priority. The property insurer that pays first mortgage on insured property intentionally destroyed by the insured is subrogated to first priority and may foreclose the junior mortgagee even though it was an additional insured. Southern Miss. Planning & Dev. Dist. v. ALFA Gen. Ins. Corp., 790 So. 2d 818 (Miss. 2001).

SALES: Earnest money. If both husband and wife execute a contract to sell property owned separately by the husband and the buyer delivers an earnest money check payable to both, the buyer may recover the entire earnest money from the wife following her husband’s death if the contract is not fulfilled. Eul v. Beard, 47 S.W. 3d 424 (Mo. Ct. App. 2001).

SALES: Implied warranty. Express warranties on workmanship and materials waive implied warranties on the same subject but do not waive implied warranties of habitability or proper construction. Bullington v. Palangio, 45 S.W.3d 834 (Ark. 2001).

SALES: Reformation. Gross negligence of a seller in attaching an incorrect legal description defeats the seller’s claim for reformation of the conveyance of more property than the seller intended. Foster v. Gibbons, 33 P.3d 329 (Or. Ct. App. 2001).

SALES: Risk of loss. The tenant bears loss after exercise of purchase option in lease even though not in possession. Tenant vacated the premises because of a disputed option price. Brush Grocery Kart, Inc. v. Sure Fine Mkt., Inc., 30 P.3d 810 (Colo. Ct. App. 2001).

SERVITUDES: Residential use. Keeping a pet cougar is neither a nuisance nor a violation of the residential use restriction affecting the lot. Turudic v. Stephens, 31 P.3d 465 (Or. Ct. App. 2001).

SERVITUDES: Use restrictions. A restriction against "use" of property as a drugstore also prohibits its use as a parking lot for a drugstore on an adjacent unrestricted parcel. Eckerd Corp. v. Zaremba Land Dev., 790 So. 2d 591 (Fla. Ct. App. 2001).

ZONING: Estoppel. A court will refuse to inquire into the motive behind a zoning commission’s denial of a proposed subdivision plat absent a due process or equal protection claim. The doctrine of equitable estoppel is, however, applicable when the applicant reasonably relies upon government staff’s failure to object to an easily correctable technical plat deficiency. Equicor Dev., Inc. v. Westfield-Washington Township Plan Comm’n, 758 N.E.2d 34 (Ind. 2001).

ZONING: Pre-existing nonconforming use. Ordinance provision terminating nonconforming use status upon change in ownership of property is invalid on its face, as is provision prohibiting any alteration of the property. Holders of nonconforming use rights are permitted to make reasonable alterations to repair their facility and render it practicable for their purposes. Budget Inn of Daphne, Inc. v. City of Daphne, 789 So. 2d 154 (Ala. 2000).


Concurrent Tenancies. Peter M. Carrozzo examines the state of concurrent tenancies in Tenancies in Antiquity: A Transformation of Concurrent Ownership for Modern Relationships, 85 Marq. L. Rev. 423 (2001).

Homeowners Associations-Remedies. Amos B. Elberg criticizes the willingness of courts to impose injunctions and validate "supercompensatory" fines when residents of a common interest development (or, more commonly, homeowners association) violate an association no pet rule, in Remedies for Common Interest Development Rule Violations, 101 Colum. L. Rev. 1958 (2001).

Michigan Real Property Law Survey. Carl W. Herstein provides the property section of the Wayne Law Review’s annual survey of Michigan law in Real Property, 47 Wayne L. Rev. 669 (2001). Herstein suggests that many of the opinions ultimately involve the forcible dispossession of property.

Real Estate Sales Contracts-Disclosure Duties. According to Florrie Young Roberts, in Disclosure Duties in Real Estate Sales and Attempts to Reallocate the Risk, 34 Conn. L. Rev. 1 (2001), the long-held caveat emptor proposition that a seller has no duty (absent affirmative misrepresentation) to disclose property defects to a buyer is now all but dead. Roberts reviews common law cases and state statutes requiring sellers to disclose defects in property.

Residential Construction Standards. Michael D. Turner takes a harsh look at the influence of the housing industry over residential construction standards and the failure of California courts to meaningfully police noncompliance with the standards that exist, in Paradigms, Pigeonholes, and Precedent: Reflections on Regulatory Control of Residential Construction, 23 Whittier L. Rev. 3 (2001).

Takings (or Is It?). Abraham Bell and Gideon Parchomovsky turn takings jurisprudence on its head in Givings, 111 Yale L.J. 547 (2001). Bell and Parchomovsky observe that judges, lawyers, and policymakers write countless articles on the subject of government appropriations of property (whether outright or by regulation), but devote virtually no thought to problems inherent in uncompensated government distributions of property-which they term "givings."


South Carolina adopts Subcontractors’ and Suppliers’ Payment Protection Act. S.C. Code Ann. §§ 29-6-210-29-6-290 (2000).

Tennessee adopts Uniform Principal and Income Act. Tenn. Code Ann. §§ 35-6-101-35-6-602 (2001).

Tennessee expands disclosures required of residential property seller. Tenn. Code Ann. § 66-5-201 (2001).

Vermont landlord-tenant code extensively revised. Vt. Stat. Ann. tit. 9, § 4456a (2001).


Keeping Current-Property Editor: Eugene L. Grant, 1211 S.W. 5th Ave., Ste. 1600, Portland, OR 97204-3795, Contributing editors: Daniel B. Bogart and Robert Flores.