Real Cases in Real Estate by Andrea Lee Negroni, Esq. – January 3rd Update

Real Cases in Real Estate by Andrea Lee Negroni, Esq. – January 3rd Update

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)