Title Issues

First Circuit resolves dispute over religious real and personal property by reference to formal agreements

The First Circuit Court of Appeals has resolved a longstanding and complicated dispute between two congregations over control of the real and personal property of the Touro Synagogue in Newport, Rhode Island. In an opinion by Judge John J. McConnell, Jr., the trial court had found that an implied or constructive trust existed by which a New York Congregation Shearith Israel (CSI) held title to the property for the benefit of the Newport Rhode Island Congregation Jeshuat Israel (CJI)....

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Will leaving land to surviving heirs of the decedent's child creates a life estate in the child with remainder in the heirs

The Georgia Supreme Court has interpreted a will leaving land to the "surviving heir or heirs" of the decedent's child as creating a life estate in the child with a contingent remainder in the child's heirs. Anderson v. Anderson, 791 S.E. 2d 40 (Ga. 2016) Read more about Will leaving land to surviving heirs of the decedent's child creates a life estate in the child with remainder in the heirs

Part performance as exception to the statute of frauds

The Idaho Supreme Court reaffirmed the traditional rule that part performance of a real estate agreement can constitute an exception to the statute of frauds. If that is the case, a contract that would otherwise be unenforceable because it does not comply with the statutory writing formalities may be enforced nonetheless. Hoke v. NeYada, 387 P.3d 118 (Idaho 2016). The case involved a lease with an option... Read more about Part performance as exception to the statute of frauds

Fee simple absolute found despite language of "in trust" and "for the uses, purposes" of the YWCA

In a standard application of traditional estates doctrine, the Massachusetts Appeals Court has found a fee simple absolute despite language in the grant to the YWCA stating that the property was given "in trust, nevertheless, for the uses, purposes and trusts aforesaid." Young Women's Christian Ass'n, Inc. of Boston, Inc. v. Young Women's Christian Ass'n of Philadelphia, Inc., 90 Mass. App. Ct. 1119, 2016 WL 7162737 (Table) (Mass. 2016).

Traditionally any language in a conveyance of a fee...

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An owner can obtain property by acquiescence even if the neighboring land is unoccupied

The Utah Supreme Court has held that an owner can obtain property "by acquiescence" if the owner occupies a strip of the neighbor's land in a visible manner without objection.  Anderson v. Fautin, 2016 UT 22, 379 P.3d 1186 (Utah 2016). Although "acquiescence" suggests that a neighbor is aware of the placement of the border and either agrees or does not object to it...

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Banks that foreclose without legal authority to do so commit the tort of wrongful foreclosure

The California Supreme Court held in Yvanova v.  New Century Mortgage Corp.,, 365 P.3d 845 (Cal. 2016), that a borrower has standing to prove that a nonjudicial foreclosure was wrongful because an assignment by which the foreclosing entity purportedly took a beneficial interest was void, thereby depriving the foreclosing party of any authority to foreclose through a trustee's sale. 

In a follow up case,...

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Buyer may sue seller for fraudulent failure to mention flooding problem despite "as is" clause in real estate sales contract

When real estate contracts contain an "as is" clause or state that the buyer is not relying on any oral statements made by the seller, some courts hold that the buyer cannot sue the seller for fraud even if the seller lied about the condition of the premises or failed to reveal material facts any reasonable buyer would want to know. But other courts allow claims for fraud on the ground that sellers cannot be allowed to immunize themselves from liability for fraud by contract language. In...

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Prescriptive easement granted for underground utility lines

An easement may be acquired by prescription if one engages in visible ("open and notorious") use of another's property in a continuous manner for the period of the statute of limitations. Most state presume such uses are permissive although a growing minority of states presume permission. A crucial requirement is that the use be visible to the servient estate owner. How then could underground utility lines (which are obviously hidden) be sufficiently visible to be acquired by prescription?

The Massachusetts Land Court ruled that an owner can acquire an easement by prescription for...

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Washington Supreme Court joins courts that reverse the presumption of permissiveness for prescriptive easements

In general, possession of property owned by another is presumed to be non-permissive. Thus, one can obtain property by adverse possession if one actually possess real property in a visible manner for the statute of limitations without regard to proof of lack of permission. Many courts apply the same presumption to claims for prescriptive easements. The reason is that some border cases (such as use of a strip of property for driveway purposes) may involve both an adverse possession claim and a prescriptive easement claim and it is thought to be irrational to reverse the presumptions for the...

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