Archive for the ‘Property’ Category

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WA Supreme Court: Can Negotiate Pretty Much What You Want in Mobile Home Contracts

August 2, 2010

Little Mountain Estates Tenants Assoc. v. Little Mountain Estates MHC LLC

Landlord and tenant negotiated for a 25 year lease, which would convert to a one-year lease if the tenant assigned. The MHLTA, a.k.a. the landlord tenant act specifically written for Auburn (mobile homes), allows the parties to negotiate a rental agreement. Since the provision was agreed to, there is no violation of the MHLTA:

Even if this court were to look to statements of legislative intent as the Court of Appeals erroneously did, see Little Mountain, 146 Wn. App. at 560, those statements do not support voiding the assignment provision here. RCW 59.22.010(2) sets forth the multiple legislative purposes of the MHLTA. The first is to maintain low-cost housing to benefit the elderly. Here, an initial 25-year term with fixed increases in rent provides secured housing and financial stability to the elderly who live there, and the assignment provision makes that 25-year term economically feasible for the manufactured home park. The legislature also sought “to obtain a high level of private financing for mobile home park conversions” and “to help establish acceptance for resident-owned mobile home parks in the private market.” Id. Permitting a park owner to offer contractual terms that provide attractive yet profitable features to prospective residents encourages additional private financing and market growth.

Respondents ask this court to deem unenforceable any provision that alters the contract upon assignment. However, this contract does not alter an assignment; it provides in the original contract what would happen in that eventuality. Nothing in the MHLTA imposes a wholesome prohibition on such assignment provisions. The MHLTA does not prevent landlords from offering special terms to the tenants who first move into a new mobile or manufactured home park. Such a practice is not uncommon when a landlord is attempting to populate a new rental community.

There you have it, the legislature has officially connected high levels of private finance with mobile home park conversions. The Apocalypse is upon us.

Posted in Justice Richard Sanders - Draft Majority, Landlort Tenant, Property, WA Supreme Court | Leave a Comment »

WA Supreme Court: Sale of Land Not Void for Procedural Notice Violation

July 31, 2010

S. Tacoma Way, LLC v. State

The department of transportation sold some land without giving statutory notice under RCW 47.12.063(2)(g). Under the statute, DOT was required to give statutory notice to abutting landowners. They thought they were the only abutting landowners, but was having mistaken. When South Tacoma Way, LLC tented to purchase the property of one of the landowners, it learned that that landowner had not been given notice of the sale and objected.  STW attempted to block the sale is ultra vires.

Court found that the sale by DOT did not amount to ultra vires. Of particular note, for the doctrine to apply there must be no legal authority to take the action at issue. Here DOT did have the authority to make the sale and purchase, the only error was procedural. The court also made particular note of the fact that declaring these types of transactions, in which procedural irregularities occur, void would leave these transactions open to challenge years or even decades later. As we all know from first year property class, we favor finality in these types of transactions.

 

 

Posted in Justice Charles Johnson - Draft Majority, Property, WA Supreme Court | Leave a Comment »

WA Court of Appeals at Div. II: Breach of Warranty to Defend starts clocking when the cause of action arises

July 19, 2010

Erickson v. Chase

As does tend to happen, people had land, but the borders were iffy. Some people took some trees that may or may not have belonged to them. The question is, “When does your cause of action for a duty to defend on a warranty deed arise.” Here, the people with the duty say its from when you buy the land, and you have six years from that point. The court of appeals held differently. The clock runs out six years from when you learn of the breach of warranty such that the duty to defend would be triggered. That is all.

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Posted in Division II, Judge David H. Armstrong - Draft Majority, Property, Statute of Limitations, Tort, Unanimous, WA Court of Appeals | Leave a Comment »

Court of Appeals, Div. II: The Dead Hand picks the wrong plaintiff

May 27, 2010

Lakewood Racquet Club Inc., v. Jensen

In Lakewood Racquet Club Inc., the court of appeals denies standing to sue for heirs of a long deceased landowner.  This patriarch, a Mr. Orr, entered into real estate agreements with the Racquet Club back in the 60s, selling them part of his land while obtaining a restrictive covenant preventing the Club from building any residential units on the property.

When the Club decided to build condos and townhomes on its property, the diasporated children of the Patriarch sued to enforce the covenants.  Each was removed from the land in some way.  One child lived in Nevada, another in Pierce County, and one with no identifiable location in the record.

Interestingly, this case presented a question of first impression in Washington.  To wit, whether covenantees later removed from the land maintained their right to enforce the covenant.  From that question, the ultimate question of the case can be answered: whether the covenantees suffered and “injury in fact” by the breach of the covenant.  The first question turns on whether the benefit is appurtenant or in gross.  The court held that the benefit was specific to the neighboring parcels to the Club; it is appurtenant to those parcels.  As such, only those with an ownership interest in those parcels would have a justiciable claim to enforce the covenant.  Those without will lack standing to sue for a declaratory judgment.

The court was careful to state that its holding did not foreclose all divested covenantees’ enforcement actions, but the implication is that in most cases they will lack standing.

Posted in Division II, Judge Elaine Houghton - Concur in Majority, Judge Joel Penoyar- Draft Majority, Judge Marywave Van Deren - Concur in Majority, Land Use, Property, Uncategorized, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – Insurance Claim for “Theft” Not Valid for Non-Payment for Auto

April 25, 2010

Greenfield v. Western Heritage Insurance Co.

Mr. Greenfield owns G&G Liquidation and Auction Company. He was insured by Western Heritage Insurance Company. Greenfield owned a 2001 Dodge pickup that he provided to Mr. Medlen, owner of Silverauto Sales, on consignment. They agreed that Medlen would pay Greenfield $15,000 for the truck upon its sale. The truck was sold for $16,500 and the check was deposited into Silverauto’s bank account. Apparently, Medlen was having financial difficulties and Silverauto’s bank account was frozen before Greenfield could be paid his $15,000. Medlen at deposition stated that he never intended to deprive Greenfield of the truck without paying for it.

Greenfield filed a theft claim with Western Heritage and they denied the claim. Greenfield filed suit against Western Heritage. The trial court dismissed Greenfield’s suit on summary judgment and Greenfield appealed.

As the Court of Appeals pointed out, Greenfield’s insurance policy provided coverage for loss caused by such incidents as fire, windstorm, flood, vandalism and theft to a covered auto. Clearly this loss was not covered under the policy. But Greenfield also argued that it was theft as the monies in the bank account represented comingled funds. Greenfield correctly pointed out that Medlen was required to place proceeds from a consignment sale into a trust account and Greenfield would have a cause of action for this breach, but considering that Medlen filed bankruptcy the best Greenfield could achieve is being named as an unsecured creditor.

In addition, Medlen’s actions could not be considered theft because there was no intention of depriving Greenfield. The trial court’s ruling was affirmed.

Posted in Division III, Insurance, Judge Dennis J. Sweeney - Concur in Majority, Judge Kevin M. Korsmo - Conconr in Majority, Judge Stephen M. Brown - Draft Majority, Property, WA Court of Appeals | Leave a Comment »

WA Supreme Court:

April 21, 2010

Merriman v. Cokeley

This is a property dispute. The trial court held the boundary WAS NOT proven by clear and convincing evidence. The court of appeals held that it WAS. The supreme court held that it WAS NOT.

Really, if you want to see what type of evidence is needed, then feel free to look…if you’re into that sort of thing.

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Posted in Per Curiam Opinion, Property, WA Supreme Court | Leave a Comment »

Court of Appeals: Div. III – First High Court Analysis of Venue Statute for Personal Injury Cases

February 13, 2010

 

Moore v. Flateau

This case is purely a venue question: where is the action proper; King County or Yakima County? There is a good analysis of RCW 4.12.020 in this case, which statute was changed in 2001. Previously this statute allowed plaintiffs in “motor vehicle accidents” to bring suit in the county where the accident happened or in the county where the defendant resided. The Legislature changed the statute to expand it to all types of injuries and not just those that arise out of motor vehicle accidents. Flateau v. Moore:

In 2004, Flateau contracted to sell his motorcycle modification business to Moore. Two documents outlined the agreement. The first sold the business while the second provided that Flateau would work for Moore. Neither document provided a venue provision, although the sales contract provided that disputes be resolved in Seattle via arbitration. All notices in the contracts provided they be sent to Moore in Yakima and Flateau in Redmond.

In February 2008, Moore sent notice to Flateau at a Bothell address that he was terminating the contracts. Flateau responded demanding that Moore stop breaching the contract. Two days later Moore filed suit in Yakima County for breach of contract and a “tort of promissory estoppel,” however the complaint was not immediately served on Flateau. Flateau then filed suit in King County against Moore for breach of the two contracts. Moore then notified Flateau that he had already filed suit in Yakima County and he moved to dismiss the King County action. The King County Superior Court dismissed the action for lack of jurisdiction because the Yakima County action had been filed first. However, on reconsideration, King County vacated the dismissal upon the parties’ stipulation that either county would be appropriate to resolve the disputes depending on the outcome of a pending motion to change venue in Yakima County.

Yakima County then denied Flateau’s motion to change venue, finding that it was unclear where Mr. Flateau lived. The Yakima court also found that at least a portion of the claim arose in Yakima County because it involved damage to personal property. Discretionary review was granted by the Court of Appeals.

Flateau’s argument was that the alleged damages of the suit were economic in nature and thus he is entitled to be sued in his home county under the general venue statute.

RCW 4.12.030 provides grounds for which a court may change venue. Subsection (1) provides that venue may be changed when the complaint is not brought in the proper county. The succeeding subsections provide for change of venue in other circumstances such as the convenience of the witnesses, the ends of justice, and judicial disqualification. RCW 4.12.030(2), (3), (4).

The Court of Appeals determined that Sections 2 thru 4 of RCW 4.12.030 allowed a court to make a discretionary decision, thus an abuse of discretion review, but that Section 1 was a legal question that is reviewed de novo. RCW 4.12.025 provides that venue is proper where the defendant resides or any one defendant resides and provides for corporation venue as well. RCW 4.12.020 provides that actions involving damages “for injuries to the person or for injury to personal property” shall be brought were the action arose, but gives the plaintiff the option of bringing the action in the county where the defendant resides at the time of the commencement of the action. The quoted language is new as of 2001 and has not been defined by any court.

Moore contended that since he worked in Yakima County and there was damage to his “personal property” (his business), that Yakima County was the proper venue. So this came down to what is “personal property.” Black’s Law Dictionary defines it as “[a]ny movable or intangible thing that is subject to ownership and not classified as real property.” Without any guidance from the Legislature (imagine that), the Court turned to the underlying facts in the case. Since this was a breach of contract claim and thus about economic damages, the court concluded that this case was not about “injury to personal property.” Thus Yakima County was not a proper venue. So all of this work just to determine which court will hear the dispute. Is King County Superior Court that much better than Yakima County Superior Court? No comment. You never know when you might wind up there!

Yakima            King County

Posted in Civil Procedure, Division III, Judge Dennis J. Sweeney - Concur in Majority, Judge Kevin M. Korsmo - Draft Majority, Judge Teresa C. Kulik - Concur in Majority, Property, Statutory Interpretation, Venue, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. I – Beware the Rise of Judiciability Doctrines in Washington

January 12, 2010

Bloome v. Haverly

Jackson Haverly bought property from Mark Bloome in 1995 in the Magnolia neighborhood of Seattle.  Mr. Haverly purchased a developed lot up the hill from an undeveloped lot also owned by Mr. Bloome.  They executed a restrictive covenant apparently aimed and protecting the view of Puget Sound and Olympic mountains of the uphill parcel.

Apparently seeking to develop the lot, Mr. Bloome brought a declaratory judgment action, asking the court to determine that view covenant did not prohibit him from developing the lot.  Mr. Haverly brought a counterclaim, asking the court to determine that no development that blocked the view was permitted under the view covenant.  Both parties moved for summary judgment.  The trial court granted Mr. Haverly’s motion, holding that the view covenant prohibited Mr. Bloom from build a structure that interfered with Mr. Haverly’s view.

The Court of Appeals reversed and remanded, finding that there did not exist a justiciable controversy because no actual building plans had been proposed.

Note to appellate courts:  Please tread very lightly in kicking cases out because they are not “justiciable.”  The federal courts have effectively closed the courthouse to many persons because they, for example, lack standing.  It is a back door means of slamming the courthouse doors to those that have legitimate grievances and are entitled to relief.  See, e.g. Allen v. Wright, 468 U.S. 737 (1984).  In this case, the Court of Appeals delays granting relief to parties that need a simple interpretation of a restrictive covenant so that they may order their affairs accordingly.  Perhaps a more fully developed record would be helpful to the court, but the remand simply delays (and heightens the costs) of resolving a fairly simple dispute.  Did the parties even brief and argue the issue of justiciability, or was that something the court came up with on its own (sua sponte)?

Posted in Contracts, Division I, Judge C. Kenneth Grosse - Concur in Majority, Judge Linda Lau - Concur in Majority, Judge Stephen J. Dwyer - Draft Majority, Justiciability, Property, WA Court of Appeals | 1 Comment »

WA Legal Roundup – Washington State Supreme Court

November 5, 2009

In re Estate of Borghi

A has C, a son from a previous marriage. A buys Blackacre. A married B. A deeds Blackacre jointly to A & B. A dies instestate. Under the rules of separate property, Blackacre is property acquired before marriage and passes by the rules of intestate succession. Under the rule of presumed joint gifting, Blackacre goes to B.

The court simply framed the question as whether the warranty deed to A & B converted the property to community property such that it would pass to B. The rule is that absent sufficient evidence of an intent to convert the nature of the property, it stays what it was on the date of acquisition. “While this could be accomplished through a quit claim deed or other real property transfer, a properly executed community property agreement may also effectuate a transfer of real property.” Thus, simply including the name on the warranty deed, without further evidence of an intent to actually transfer the property to the community, doesn’t suffice. “We have consistently refused to recognize any presumption arising from placing legal title in both spouses’ names and instead adhered to the principle that the name on a deed or title does not determine the separate or community character of the property, or even provide much evidence.”

Always have to look to the true intent of the parties. If the evidence of intent is scant, you will have a hard time overcoming a presumption.

Now, given this was a 4-1-4 opinion, the breakdown of the law will only hold to the extent that it was concurred with:

See above. She adopted the lead opinion reasoning and wrote only to say that there was no other evidence outside the name on the deed, so the court, under our states abstention principles, should not have even looked to the question of what kind of evidence would be sufficient.

Posted in Chief Justice Barbara Madsen - Draft Concurrence, Justice Charles Johnson - Concur in Dissent, Justice Debra Stephens - Lead Opinion Author, Justice Jim Johnson - Concur in Dissent, Justice Mary Fairhurst - Concur in Dissent, Justice Richard Sanders - Signed Lead Opinion, Justice Sue Owens - Draft Dissent, Justice Tom Chambers - Signed Lead Opinion, Probate, Property, WA Supreme Court | 1 Comment »

WA Legal Roundup: Supreme Court

October 20, 2009

Abbey Road, Inc. v. City of  Bonney Lake

Land use law is a balance between two forces constantly in tension.  On the one hand, a property owner controls a stick in a larger bundle of rights to use and enjoy his or her land in a manner of his or her choosing.  On the other, the public has the authority to regulate and prospectively prevent nuisances from arising.  Washington developed its vested rights doctrine to provide some measure of temporal certainty in land use decisions.  Once a developer submits a valid building permit application to the governing authority, the law applicable to the development will be frozen in time at the date of filing.  Despite the presence of significant regulatory hurdles a developer must leap prior to obtaining a building permit, Washington has one of the most pro-developer vesting rules in the nation.

Abbey Road involves an effort to push the vesting rule even farther to the developer’s side.  The petitioners argued that the filing of a site plan review permit application should vest development rights–in spite of clear statutory and doctrinal language to the contrary–on the grounds that Erickson (the case that originally determined the vesting rule) was wrongly decided, and that the extant rule violates due process.  The court turned back both of these challenges, and the vesting rule remains the same: a developer must submit a valid building permit application (not a site plan application) to freeze the regulations in place at the time of the application.

The developer’s problem in this case underscores the risk developer’s face when dealing with multiple, contingent permit applications.  As the court points out, nothing in the Bonney Lake Municipal Code prevented Abbey Road from submitting simultaneous permit applications, though the building permit would be contingent on approval of the site plan.  There are risks inherent in simultaneous application.  See Roger D. Wynne, Washington’s Vested Rights Doctrine: How We Have Muddled a Simple Concept and How we Can Reclaim It, 24 Seattle U. L. Rev. 851, 928-29 (2001).  That a developer is unwilling to take those risks, may reveal that it is unworthy of vesting, or so the court opines in Abbey Road.

Finally, the court signals an unwillingness, both in this case and in future cases, to change the law of vesting to apply equally to all land use permit applications.

While some of Abbey Road’s arguments could support a change in the law, instituting such broad reforms in land use law is a job better suited to the legislature.

Posted in Justice Charles Johnson - Draft Majority, Land Use, Property, WA Supreme Court | 1 Comment »

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