Articles Posted in Real Estate

downtown-salt-lake-city-2-1446473-683x1024Buying a home is a complex and stressful process. Not only must a homebuyer make sure he or she has the required funds to purchase the home, but must also thoroughly check that the home is in good condition. Generally, determining the condition of a home is relatively easy. Under the law, a home-seller is obligated to disclose certain defects. Failure to do so can result in a lawsuit. A recent case from the United States Fifth Circuit Court of Appeals illustrates the legal repercussions that can befall a home-seller when he or she withholds certain deficiencies in the condition of the home.

The case centers around a home purchased in Bossier City, Louisiana. The home-purchaser, Britney N. Jones bought a foreclosed house from Wells Fargo Bank (“Wells Fargo”). After purchasing the house, Ms. Jones discovered that it contained mold. The mold was discovered after an environmental assessment of the property. The assessment was undertaken because Ms. Jones’s children had developed respiratory and other health issues.

After discovering that the home she purchased contained mold, Ms. Jones brought a lawsuit against Wells Fargo alleging claims of redhibition and fraud. In Louisiana, a seller warrants a buyer against redhibitory defects. For a defect to be considered redhibitory it must render the thing useless or diminish its value in such a way that it could be presumed that the buyer would have not bought it or would have bought it at a much lower price. La. C.C. art. 2520 (2016). Defects that a buyer either knew of or that were apparent are excluded from the warranty of redhibition. When a defect is concealed within a home’s structure it is considered unapparent. See Amend v. McCabe, 664 So. 2d 1183 (La. 1995).

house-i-1491881-1-1024x768In law, deadlines and rules of procedure are very important. Good cases can be lost because someone missed a deadline or did not understand and follow a procedural rule. That is why it is so important to ensure you have a good attorney who understands the rules of procedure and who keeps close track of deadlines, especially those for appeals.

This importance is aptly illustrated by a recent decision from the Fifth Circuit Court of Appeal for the State of Louisiana. The case, Hawkins v. Willow Inc., involved 250 owners of homes located in the Village Green subdivision in Jefferson Parish. The homeowners sued several entities, including the developer of the subdivision and the insurer of their home warranties, alleging that the subdivision was built on land that was unsuitable for building and that the homeowners’ homes were damaged as a result.

Unfortunately for the homeowners, the warranty mandated arbitration of disputes, a step which the homeowners failed to take before filing suit. Because the homeowners failed to arbitrate their dispute, the trial court dismissed the home warranty company from the lawsuit and ordered arbitration of all claims. The homeowners did not seek review of the trial court’s ruling. Instead, the homeowners waited over two years to address the ruling. The homeowners then requested the trial court to grant them a new trial to pursue claims against the home warranty company and for the trial court to rescind its arbitration order because of newly discovered evidence. The home warranty company contested the homeowners’ requests. It asserted that the trial court did not have jurisdiction over the matter because the court previously dismissed the case. The trial court agreed with the home warranty company, ruling that it did not have jurisdiction and additionally denying the request for a new trial. The homeowners, displeased with the result, appealed the trial court’s decision.

fiji-islands-1370935-1024x741Imagine buying land and then realizing that it was already occupied. What can the purchaser do when faced with this situation? What rights do the occupants of the purchased land have? Recently, the Third Circuit Court of Appeal for the State of Louisiana addressed these questions when deciding whether Saline Lakeshore, LLC (Saline Lakeshore) owned Horse Island after it purchased the property.

It all started in 2013 when Saline Lakeshore purchased Horse Island, which is land near the Saline Lake and Saline Bayou in Avoyelles Parish. At the time of the purchase, four individuals, Marlon Littleton, Buddy Cannon, Frank Morace, and Eric Morace, lived on the island in “camps.” These camps were housing structures which the four used to float to Horse Island. These houseboats were built in a way to float whenever Horse Island flooded, which was a frequent occurrence. When the island was not flooded, the four occupants would take care of the dry land by clearing and maintaining the camp yard. Additionally, the four occupants built docks, sheds, pavilions, roast pig cookers, fish skinning rocks, and water wells on the property. All of these improvements occurred prior to Saline Lakeshore purchasing Horse Island.

After buying the property, Saline Lakeshore sent Littleton, Cannon, and the Moraces a letter requesting that they remove themselves and their property from the island. Littleton and Cannon filed a possessory action against Saline Lakeshore, as did the Moraces. A possessory action is an action to stop the disturbance of property one possesses. To establish a possessory action, one must prove: 1) person had possession of the property, 2) the possession was uninterrupted for more than a year prior to disturbance, 3) the disturbance was a recognizable disturbance under Louisiana law, and 4) the action was instituted with a year of the disturbance. La. C.C.P art. 3658 (2016). The two separate actions were consolidated into one action for efficiency. Littleton, Cannon, and the Moraces then filed for summary judgment. The trial court granted the motion for summary judgment finding that the four occupants satisfied the requirements under Louisiana law. Summary judgment is when a trial court decides a case before it goes to trial. To obtain a summary judgment, both sides must agree on the material facts of the lawsuit. The trial court then makes the determination of the law, granting judgment to one side.

cross-1442009-987x1024Sometimes procedural rules are overlooked as merely a peripheral aspect of a lawsuit. However, nothing could be further from the truth. Oftentimes you need to overcome numerous procedural hurdles just to reach the merits of a case. The following case illustrates the importance of procedure in the practice of law.

The subject of this case centers on certain events that took place after the death of Alma Payton in New Orleans, LA; the plaintiffs are Payton’s heirs. Plaintiffs argued that Lake Lawn Park, Inc. (Lake Lawn) and Lawyer’s Title of Louisiana, Inc. (Lawyer’s Title) was negligent in connection with the distribution of Payton’s property after her death. Plaintiffs alleged that Lawyer’s Title failed to disburse payments to Lake Lawn that were intended to cover Payton’s burial. As a result, Lake Lawn moved Payton’s remains to a burial ground designated for indigents.

Eventually, Lake Lawn returned Payton’s remains to the original burial place at its own cost and the lawsuit against it was dismissed. However, the lawsuit against Lawyer’s Title was still pending, although not making any progress. As a result, Lawyer’s Title filed a motion to dismiss the action as abandoned nearly eight years after Plaintiffs filed their complaint. The District Court granted Lawyer’s Title’s motion. Subsequently, Plaintiffs filed a motion for devolutive appeal of the order of dismissal.

house-1188265-1024x683In Louisiana, a victim of fraud can recover actual damages resulting from the fraud, treble damages up to three times the amount of actual damages, and reasonable attorneys fees and costs. However, this potentially large recovery is barred by a peremptory period if the defrauded party doesn’t bring the lawsuit within one year. In certain cases, the issue of when exactly this one-year timer starts can be dispositive. The following case dealing with two real estate transactions illustrates the point.

Here, Amanda Adcock owned a home in West Monroe, Louisiana. Ms. Adcock lost her job and was unable to make her monthly mortgage payments to JP Morgan Chase (“Chase”). As a result, Chase initiated foreclosure proceedings against Ms. Adcock’s home in August 2011. Shortly afterward, Ms. Adcock filed for Chapter 13 bankruptcy, which halts any foreclosure already in process. Ms. Adcock then listed the home for sale as part of the bankruptcy estate. At the time of the bankruptcy, Ms. Adcock owed Chase $195,842.29.

In January 2012, Shane Wooten, a real estate agent, contacted Ms. Adcock and informed her that her home could be taken out of the bankruptcy estate and listed as a short sale. Three months later, Ms. Adcock wrote a letter to Chase to begin the short sale process and Chase cooperated (bank approval is required before a short sale can be completed). In June 2012, Tracy Ginn, the spouse of one of the real estate agents who worked for the same realty company as Mr. Wooten, offered to buy Ms. Adcock’s home for $190,000.

old-bulldozer-1441562-1024x768Wrongful demolition is a cause of action rarely invoked because the events giving rise to such an action rarely occur. Essentially, a claim for wrongful demolition arises when a plaintiff’s property was mistakenly or wrongfully demolished. In the following case, Morgan Moss found himself in the unique position of asserting such a claim against the town of Rayville, Louisiana. See La. C.C. art. 2315; see also Hornsby v. Bayou Jack Logging, 902 So.2d 361 (La. 2005).

One morning, while in his home Mr. Moss heard some strange noises coming from across the street. When he walked out of his house to inspect the source of the noise he discovered that his storage property across the street was being demolished by town workers. The town had somehow mistaken Mr. Moss’s property for another property that was scheduled to be demolished. Significantly, Mr. Moss filmed the town workmen but did not try to stop the demolition.

Mr. Moss presented his case to the Trial Court where he won a judgment for only $5000 for the loss of his property. Unsatisfied, Mr. Moss appealed to the Louisiana Second Circuit Court of Appeal hoping to recover more. Any good attorney knows to speak to judges with deference and respect. Along those lines, it’s unwise to make frivolous arguments or to embellish facts.

drag-line-equipment-taking-a-swim-1219894-1024x659A primary concern that all business owners have is how to insulate themselves from any improper actions that their business engages in. Without some mechanism to separate the actions of the business from the business owner, a business owner would be personally liable for the business’s actions and could face legal claims against him or her for actions that the business engaged in. States, recognizing this problem, created many forms of corporate structures with varying levels of liability protection. Examples of such corporate structures are limited liability companies (L.L.C.), professional corporations (P.C.), and C corporations. While these, and other types of corporate structures, provide business owners with insulation from liability, business owners could still be personally liable for their company’s actions if those actions fall under a narrow set of circumstances. Recently, the Louisiana Supreme Court addressed whether one of these narrow circumstances occurred when determining whether an owner of a home construction company was personally liable for the actions of the company.

Jennifer Nunez contracted with Pinnacle Homes, L.L.C. (Pinnacle) to construct a home in Cameron Parish. Allen Lenard, a state licensed construction contractor and owner of Pinnacle, entered into a contract with Ms. Nunez on behalf of Pinnacle. The contract stated that the construction of the home would comply with all applicable national, state, and local building codes and laws. The Cameron Parish permitting board required that Ms. Nunez’s new home be ten feet above sea level. Not only would Ms. Nunez’s home need to be ten feet above sea level to comply with the permitting board, but the home would need to be ten feet above sea level for Ms. Nunez to obtain flood insurance.

After Pinnacle completed construction, Ms. Nunez ordered an elevation certificate so that she could obtain flood insurance. Through the certification process, Ms. Nunez was informed that her house did not meet the ten-foot base flood elevation as the permit required. Ms. Nunez’s home only stood at an elevation of approximately 8 and one-half feet. The house was fully constructed on a concrete slab and it was determined that it would cost approximately $201,600 to raise the base to the required ten-foot elevation.

landcape-1394201-1024x768Desiring to be friendly, you may allow your neighbors to use a portion of your land in order to make their lives a little easier.  You allow your neighbors to continue to use your land for some time, but now you want privacy on your property.  At this point you would most likely ask your neighbor to stop using your land, but what do you do when they refuse?  What do you do when your new neighbor claims ownership of the portion of land that you allowed them to use?  Defending ownership rights against presumptuous neighbors was a recent issue in a case out of St. Landry Parish.  

In 1989, Emery and Hazel Scrantz divorced.  Prior to Mr. and Mrs. Scrantz’s divorce, they owned a single 119-acre tract of land.  After the divorce, a court ordered the land be separated into three separate tracts.  Emery received two tracts, a 20-acre tract, and an 80-acre tract.  Hazel received one 19-acre tract.  Hazel’s 19-acre tract was situated in-between both of Emery’s tracts of land.  In order to allow Emery access to both of his tracts, he was granted a servitude (i.e. easement) to run his cattle across Hazel’s land.  On July 7, 1993, Emery sold his 80-acre tract to his brother, the Plaintiff, Joseph Scrantz.  Emery maintained ownership of his 20-acre tract.   Emery and Joseph shared their land to raise cattle, and would often use the passage crossing over Hazel’s land to transfer the cattle between the two tracts.

In 1994, Hazel sold her 19-acre tract to the Defendants, Marvin and Dorothy Smith.  When the Smiths first purchased the tract of land from Hazel they were unaware of the servitude.   In 2013 Emery died, and his daughter, Tina Scrantz, inherited the 20-acre tract of land. At some point before his death, Emery and Marvin Smith had a disagreement concerning the use of the passage.  The disagreement was settled when Marvin agreed to let Emery’s cattle pass through his tract to access the land owned by the Scrantz brothers.  Marvin Smith also allowed Joseph and Emery to build a fence around the servitude. After Emery’s death, Joseph continued running cattle across the passage to the 20-acre tract now owned by Tina.

demolition-1575129-1024x666Imagine that you own several rental properties, and one day some of the properties get severely damaged by a hurricane. You slowly try to repair the damaged properties, but your local government decides to demolish it, without notifying you first. That is what happened to a St. Bernard Parish, Louisiana man named Glenn Sandrock.

Mr. Sandrock owned approximately forty rental properties in St. Bernard Parish. One of those properties was demolished by St. Bernard Parish Government (“SBPG”). Many properties within the Parish were damaged by Hurricane Katrina. In an effort to rebuild and restore the Parish, the St. Bernard Parish Council passed multiple ordinances which made it mandatory for owners to repair their hurricane-damaged properties. Ordinance #634-12-05 basically allowed SBPG to access private property to clean debris or even to demolish the property if the property didn’t meet reconstruction/maintenance specifications established by SBPG.

Mr. Sandrock received a condemnation notice during December 2006 which declared his property as a public health and safety hazard. The notice also stated that his property was scheduled for demolition. Mr. Sandrock applied for and was granted a demolition appeal in January 2007 which allowed Mr. Sandrock seven days to clean and properly secure the property. Ten days after Mr. Sandrock was given the appeal, SBPG sent an employee to the property to inspect, but without notifying Mr. Sandrock. The SPBG employee inspected the property and found that the property was not up to the standards required by the demolition appeal. Because Mr. Sandrock’s property was still covered with debris and had not been properly secured, SBPG revoked the appeal but did not notify Mr. Sandrock of the revocation.

forest-2-1550924-1-1024x768Imagine you owned acres of lush and valuable trees. Then imagine that one day, you discover your land to be completely barren, the valuable trees almost completely removed.  Even worse, you have no real, viable recourse against the thieves who cut down and hauled off the trees because of a very strict, literal, narrow interpretation of the terms of a statute.  Instead, you are left with stripped land and a possibly uncollectable judgment.  

This is what happened to the Lowman Family in DeSoto Parish.  The Lowmans, in this case, are comprised of a sibling group who owned about twenty acres of land once populated by timber bearing trees.  Upon discovering the trees missing, the Lowmans filed a lawsuit against six defendants composed of two groups: three individuals and three companies.  The individuals, Ricky Whitaker (“Ricky”), Michael Whitaker(“Michael”) and Jerry Whitaker (“Jerry”), are siblings.  The companies, Jerry Whitaker Timber Contractors, L.L.C. (“JWTC”), Evergreen Timber

Corporation (“Evergreen”) and Brady Timber Corporation (“Brady”), were allegedly directing the actions of the Whitaker siblings in an employer type manner which, if true, would render the company defendants vicariously liable for the Whitakers’ actions.