Real
Cases in Real Estate
is a weekly update on real estate law, with legal principles illustrated and
explained by lawsuits from around the country. The topics are wide-ranging for
appeal to a broad spectrum of readers including lawyers, homeowners, investors
and the general public. Andrea Lee Negroni, a Washington DC
attorney and legal writer with 25 years of experience in financial services and
mortgage law, contributes the case summaries.
Followers of
Real Cases in Real Estate will learn and be entertained by lawsuits
involving nuisance, trespass, zoning violations, deed restrictions, title
insurance, public utilities, mechanics liens, construction defects, adverse
possession, foreclosure and eviction, divorce and marital property rights,
tenants' rights, and more. Real Cases in Real Estate uncovers the
unpredictable, amusing, and sometimes outrageous disputes between next-door
neighbors, contractors and homeowners, condo boards and residents, real estate
brokers and homebuyers, and zoning administrators and developers.
Each fully
cited case summary highlights the essential law of the case and explains the
principal legal theories and concepts relevant to the outcome. Plain language
treatment makes Real Cases in Real Estate accessible to lawyers and
laymen alike.
Whether you
follow real estate law professionally or as a hobby, you'll find something new
and useful every week in Real Cases in Real Estate.
Updates
for the Week of January 3rd, 2011
Georgia Notary Law Applies to Individual
Notaries, so Borrowers Cannot Recover Against Mortgage Lender for Excess Notary
Fees Charged.
The Anthonys obtained a mortgage refinance loan in 2002
which included a $350 notary fee. Georgia law limits the fee for a single
notarial act to $4.00. The Anthonys sued the lender in a class action,
attempting to hold the lender responsible for the excess notary fees. The
Supreme Court of Georgia held that the Georgia law proscribes the conduct of
individual notaries public, not the conduct of the corporations that employ
individual notaries. Therefore, the lender itself could not be held directly or
vicariously liable for the excess fees.
The underlying rationale is that a notary public is not
merely an employee of a corporation that employs him, but is a public officer
sworn to discharge his duties lawfully. When the notary acts in his official
capacity, his employer has no control over him. The Georgia Supreme Court
acknowledged that the law in neighboring Florida differs from the law in
Georgia - in Florida, "the employer of a notary public shall be liable to the
persons involved for all damages proximately caused by the notary's official
misconduct, if the notary public was acting within the scope of his or her
employment at the time the notary engaged in official misconduct." Even
though a corporation is not directly liable for a Georgia notary's misconduct,
the corporation could conceivably be liable if it participated in the
violations.
The case addresses (and dismisses) the availability of a
private right of action for violation of the notary statutes. The notary
statute is a penal statute, and does not expressly include a private right of
action. "[C]riminal statutes, which express prohibitions rather than personal
entitlements and specify a particular remedy other than civil litigation, are ...
poor candidates for the imputation of private rights of action."
None of the Anthonys' claims prevailed, with the court
finally deciding that their case was brought too late - the fees were charged
in a 2002 refinance transaction and they sued in 2007, so their claim was
barred by a four-year statute of limitations for fraud.
Lexis.com subscribers can view the enhanced version of
Anthony
v. Am. Gen. Fin. Servs., 287 Ga. 448
(Ga. 2010)
Non-subscribers can use lexisOne's Free Case Law
search to view the free, un-enhanced version of Anthony v. Am.
Gen. Fin. Servs., 287 Ga. 448 (Ga. 2010)
Florida Property is Decedent's Homestead
Although He Never Lived There.
A Florida appeals court
analyzed the state's homestead law in a case where the personal representative
of an estate mortgaged the decedent's property. The lender's attempt to
foreclose the mortgage failed when the court found the property was homestead
in nature under Florida law.
The Giblins married in 1959, had a daughter, and
separated in 1981. However, they never divorced. Thomas Giblin bought
residential property in his own name in 2000 and died in 2001. His wife and
daughter lived in the property, but he did not. Thomas bequeathed the property
to his children and grandchildren (not his estranged wife). The personal
representative of his estate mortgaged the property, and eventually the lender
attempted to foreclose the mortgage. After reviewing the Florida homestead law,
the court determined the property was homestead and exempt from execution by
Thomas Giblin's creditors. An exempt homestead is limited to the residence of
the owner or the owner's family, so Thomas was not required to live in
the home as long as his family did. Moreover, a homestead is not subject to
devise if the owner is survived by a spouse. Because Giblins never divorced,
the wife was entitled to a life estate and Thomas Giblin's heirs inherited the
vested remainder.
Lexis.com subscribers can view the enhanced version of
Bayview
Loan Servicing, LLC v. Giblin, 9 So. 3d 1276 (Fla. Dist. Ct. App. 4th Dist.
2009)
Non-subscribers can use lexisOne's Free Case Law
search to view the free, un-enhanced version of Bayview Loan Servicing, LLC v. Giblin, 9 So. 3d 1276
(Fla. Dist. Ct. App. 4th Dist. 2009)