Real Cases in Real Estate By Andrea Lee Negroni, Esq. – January 7th, 2013 Update

Real Cases in Real Estate By Andrea Lee Negroni, Esq. – January 7th, 2013 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 7th, 2013

Former Owner's Simple Allegation of Paramount Title Does Not Support Dismissal of Bank's Forcible Entry and Detainer Petition.

Thomas Hawbaker and his wife bought a home in Mills County, Iowa in 2002; the mortgage was foreclosed in March 2008. The district court issued a special execution for sale of the real estate and ordered it sold six months later. The court also ordered the sheriff of Mills County to put the foreclosure purchaser "into immediate possession" of the property after the sale. The sheriff's sale was held on September 15, 2009 with Glenwood State Bank as the purchaser. The bank received a sheriff's deed the same day. Hawbaker was served with a notice to quit and a petition for forcible entry and detainer was granted. Forcible entry and detainer involves legal proceedings by the rightful owner against a squatter or tenant without title who refuses to depart the property. A hearing on the petition took place on October 6, 2009. The district court granted the petition for forcible entry and detainer.

Hawbaker challenged the forcible entry and detainer by claiming "paramount title" to the property. By claiming paramount title, he was attempting to deprive the bank of its remedy (forcible entry and ultimately, eviction of the prior owner) because under Iowa law, a summary remedy for forcible entry and detailer is allowed "when the defendant continues in possession after ... foreclosure ..., unless the defendant claims by a title paramount to the lien by virtue of which the sale was made ..." 

Case law in Iowa dating to 1841 states that forcible entry and detainer actions are not the proper actions for trying titles. In claiming paramount title, Hawbaker attempted to defeat the court's jurisdiction. He failed because later case law indicates that "title is a justiciable issue in a forcible entry and detainer action when the action has been originally commenced in a district court."  Since Hawbaker participated in the foreclosure action that resulted in the bank's acquisition of title, and because he failed to specify the grounds on which his claimed paramount title rested, the appeals court affirmed the order granting forcible entry and detainer to the bank.

GLENWOOD STATE BANK, vs. THOMAS A. HAWBAKER, 2011 Iowa App. LEXIS 119 [enhanced version available to subscribers].


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