Articles Posted in Real Estate

On January 11, 2019, the Indiana Court of Appeals held that the trial court properly denied appellant RCM Phoenix Partners LLC’s (“Phoenix”) slander of title claim, even though the appellee 2007 East Meadows, LP (“Meadows”) failed to raise a claim of absolute privilege at the trial court level and raised it for the first time on appeal.

Due to complications surrounding an assignment of a purchase agreement and assumption of an existing mortgage of an apartment community (“Property”) to Meadows, the parties were unable to close on the Property. Meadows sued Phoenix in Texas, alleging that Phoenix breached the purchase agreement and committed fraud. Meadows filed a lis pendens notice against the property of the pending Texas lawsuit. The trial court in Texas dismissed the lawsuit for lack of personal jurisdiction, but a second suit in Indiana, where Phoenix countersued and added a slander of title claim to its complaint continued. In Meadows’ answer, it did not assert that the lis pendens notice was privileged. Meadows first raised the claim of absolute privilege upon Phoenix’s appeal of a trial court decision that found in favor of Phoenix’s claim for retention of the earnest money but found in favor of Meadows for the slander of title claim.

The Court of Appeals noted that while the general rule is that an argument or issue raised for the first time on appeal is waived and thus ineligible for appellate review, the trend in recent Indiana Supreme Court cases is to allow an appellee seeking affirmance of a trial court’s judgment to defend the trial court’s ruling on any basis, including with arguments not raised at trial. Here, because Meadows was the appellee and sought an affirmance of the trial court’s decision to deny the slander of title claim, the Court of Appeals held that Meadows had not waived the right to argue that it had absolute privilege from a slander of title claim.

Trees can be assets or a nuisance, depending on one’s perspective and situation. While they may provide shade, privacy or other value to one person, they may interfere with a neighbor’s enjoyment and safe use of his own property.

Questions often arise about the ownership of trees growing on or near the boundary between adjoining properties. Which landowner is responsible for their care or removal? If there is disagreement over what is needed, whose interests should have priority?  The answers depend on the circumstances and equities of the situation. And because state laws and local ordinances often differ, they can also vary depending on the particular jurisdiction hearing the case. But, in general, the analysis begins with a determination of the tree’s ownership.

In Indiana, the rights and responsibility for a tree’s care is vested in its owner, and ownership is determined solely by the location of the tree’s trunk. The author presumes the location is made at ground level, but that point is not always clear in the case law. If the trunk of the tree is entirely on Brown’s land — even if its limbs and branches extend across the boundary line or its roots encroach onto Smith’s land – the law typically considers the tree to be the property of Brown. Absent a contract or easement that grants property rights in the tree to another person, Brown has the exclusive right to decide whether to preserve it or cut it down. That generally is true regardless of Brown’s motivation in doing so or the impact the tree’s removal may have on neighboring property. See, Luke v. Scott, 187 N.E. 63 (Ind. Ct.App. 1933).

In Surrisi v. Bremner, a 2011 Indiana Court of Appeals decision, the court held the Bill of Sale issued to the buyer (Bremner) invalid, as the Bill of Sale named business personal property which was not included in the Notice of Sheriff’s Sale.

Bremner, a creditor of the sellers (Surrisis), was the highest bidder at the Sheriff’s Sale and the sheriff issued a Bill of Sale that included business personal property that was not included in the Notice of Sale. The court noted that although the Agreed Judgment between the two parties stated the Sheriff’s Sale would include both real and personal property, the Notice of Sheriff’s Sale, praecipe of sale, and tax documentation, only listed the real property as being sold at the sale. Relying on a 2000 Colorado Court of Appeals decision, the court found that no notice of sale was given with respect to the business personal property, so such property could not have been sold at the sheriff’s sale. The court also stated that nothing in the settlement agreement prevented the business personal property from being sold at another sheriff’s sale, leading the court to further presume that only real property was to be sold at the Sheriff’s Sale in question.

Jeremy Fetty is a partner in the law firm of Parr Richey Frandsen Patterson Kruse with offices in Lebanon and Indianapolis. He often advises businesses and utilities (for profit, non-profit and cooperative) on organizational, human resources, and transactional matters and drafts and reviews commercial contracts.

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