Real Cases in Real Estate by Andrea Lee Negroni, Esq. – January 31st Update

Real Cases in Real Estate by Andrea Lee Negroni, Esq. – January 31st 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 31st, 2011

Is a Mobile Home a Travel Trailer or Taxable Realty?

Keith and Valeri Lazor challenged the decision of the Armstrong County (PA) board of assessment appeals, which determined that their mobile home should be taxed as real estate. They bought the mobile home in 2006 and had it delivered to a campground, where it remained for five years, on land they leased. The bill of sale for the mobile home described the sale of a motor vehicle. Although the mobile home had wheels on it, at the campground it rested on a combination of wheels and concrete blocks.

The Lazors added a concrete pad for a porch, and concrete steps leading up to the two doors. They attached a roof to the porch, supported by posts bolted to the concrete pad. They landscaped the ground with shrubs, trees and a decorative lighthouse. They had cable TV installed. The owners used the mobile home in the summer and disconnected the utilities in the winter.  They claimed they intended to move the mobile home to Florida in a couple of years.

The court held that whether a mobile home is attached to land depends on the physical facts, and whether it is permanently affixed to land is a question of intent. In determining the owners' intent, however, their "self-serving" statements are not decisive. The court looked at all the circumstances and found that they placed the mobile home in only one location "with indicia of permanency." The landscaping, concrete steps, concrete pad and porch all suggested that they intended the mobile home to remain where it was. In brief, their mobile home wasn't a travel trailer because it didn't travel.

Lexis.com subscribers can view the enhanced version of Lazor v. Bd. of Assessment Appeals, 986 A.2d 219 (Pa. Commw. Ct. 2009)

Non-subscribers can use lexisOne's Free Case Law search to view the free, un-enhanced version of Lazor v. Bd. of Assessment Appeals, 986 A.2d 219 (Pa. Commw. Ct. 2009)

 

To Obtain a Lien by Equitable Subrogation, the Lender Must Prove Repayment of Prior Loans.

A Florida court reversed a judgment of foreclosure awarded by the Lee County (FL) circuit court, based on irregularities in the record. The homeowners, Pamela and Jason Brotheridge, had both first and second mortgages on their home, totaling $278,000. When Pamela needed funds to keep her pet store open, she got a new loan for $325,000. The loan documents bore her signature and the forged signature of her husband. The homeowners never made any payments on the new loan, which was eventually assigned to a new lender.

The assignee sought and obtained a judgment of foreclosure, claiming the new loan funds were used to repay both the first and second mortgages, entitling it to a lien by equitable subrogation. A lien by equitable subrogation arises when a party advances money to pay off a mortgage debt at the request of the owner or the mortgagee, with an understanding that the money advanced to pay off the prior loans will be secured by a new lien on the property of the same priority as the lien that was paid off.

Here, the assignee claimed it was entitled to a judgment for at least the amount of the two loans on the Brotheridge home that were paid with the new loan funds. However, the assignee presented no proof that the two prior loans were indeed paid off. Another factor leading to the reversal of the foreclosure judgment was the fact that the husband would have been deprived of his homestead on the basis of his forged signature on the loan documents.

In reversing the foreclosure, the appeals court took a swipe at the circuit court, suggesting that in granting the foreclosure, the circuit court may have disregarded the law because it was "clearly troubled" by the fact the homeowners had lived in the home for several years without making any loan payments. Troublesome as it may be, however, the court could not overlook a forgery or the absence of proof that the new loan was actually used to pay off the old loans.

Lexis.com subscribers can view the enhanced version of Brotheridge v. Option One Mortg. Corp., 2010 Fla. App. LEXIS 17633 (Fla. Dist. Ct. App. 2d Dist. Nov. 17, 2010)

Non-subscribers can use lexisOne's Free Case Law search to view the free, un-enhanced version of Brotheridge v. Option One Mortg. Corp., 2010 Fla. App. LEXIS 17633 (Fla. Dist. Ct. App. 2d Dist. Nov. 17, 2010)

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