Articles Posted in Real Estate & Property Law

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This appeal presented a question of whether odors emanating from a farmer’s storage of septage on his farmland created a nuisance to adjacent landowners when the trial court found the farmer was not engaged in commercial agricultural operations but was actually using the farm’s septage lagoons to store septage from his separate septic pumping and storing business. The Alaska Supreme Court affirmed the superior court’s finding that the storage of septage created a nuisance and its conclusion that the storage of septage was not protected by the Right to Farm Act. View "Riddle v. Lanser" on Justia Law

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After a Montana state court issued a series of judgments against Donald Tangwall and his family, the family members transferred two pieces of property to the “Toni 1 Trust,” a trust allegedly created under Alaska law. A Montana state court and an Alaska bankruptcy court found that the transfers were made to avoid the judgments and were therefore fraudulent. Tangwall, the trustee of the Trust, then filed this suit, arguing that Alaska state courts have exclusive jurisdiction over such fraudulent transfer actions under AS 34.40.110(k). The Alaska Supreme Court concluded this statute could not unilaterally deprive other state and federal courts of jurisdiction, therefore it affirmed dismissal of Tangwall’s complaint. View "Toni 1 Trust v. Wacker" on Justia Law

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Rand Hooks, Jr. defaulted on a loan, leading to a non-judicial foreclosure of a deed of trust on his property. He filed suit against the property’s new owner and the credit union that initiated the foreclosure, arguing the foreclosure and the transactions preceding it were fraudulent and invalid. The superior court granted summary judgment for the defendants. After review, the Alaska Supreme Court affirmed the superior court’s conclusion that the borrower failed to demonstrate an issue of material fact concerning the loan origination and the foreclosure. Furthermore, the Supreme Court rejected the borrower’s claims that the superior court judge was biased and that the borrower’s right to due process was violated. View "Hooks v. Alaska USA Federal Credit Union" on Justia Law

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Kenneth Kessler purchased a condominium in the summer of 1999, shortly before he and Dianna Kessler began dating. Kenneth and Dianna lived in that condominium for nearly all of their 15-year relationship. In its property division order following the couple’s divorce, the superior court found that the condominium was originally Kenneth’s separate property but that it had transmuted into the couple’s marital property. Kenneth appealed. The Alaska Supreme Court reversed and remanded. The Court found the condominium only became marital property if Kenneth intended to donate it to the marital estate, and agreed with Kenneth that the evidence at trial did not demonstrate he possessed any such intent. By this opinion, the Court clarified Alaska law on transmutation by implied interspousal gift. View "Kessler v. Kessler" on Justia Law

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Two adjoining landowners disputed the creation and continuing validity of an easement for ingress and egress. The superior court held that a valid easement was created but had been extinguished by prescription. The issue this case presented for the Alaska Supreme Court’s review centered on whether one party’s mining activities, placing gravel piles, equipment, and a processing plant in the easement, were sufficient to prescriptively extinguish the entire easement. The Court held they were not: although the processing plant extinguished the portion of the easement on which it stood, the evidence presented regarding the gravel piles and equipment was insufficient to support extinguishing the entire easement. View "Reeves v. Godspeed Properties, LLC" on Justia Law

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Two adjoining landowners disputed the creation and continuing validity of an easement for ingress and egress. The superior court held that a valid easement was created but had been extinguished by prescription. The issue this case presented for the Alaska Supreme Court’s review centered on whether one party’s mining activities, placing gravel piles, equipment, and a processing plant in the easement, were sufficient to prescriptively extinguish the entire easement. The Court held they were not: although the processing plant extinguished the portion of the easement on which it stood, the evidence presented regarding the gravel piles and equipment was insufficient to support extinguishing the entire easement. View "Reeves v. Godspeed Properties, LLC" on Justia Law

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The City of Cordova evicted commercial tenants from city-owned land and was granted a money judgment against them for unpaid rent and sales taxes. The tenants left behind various improvements, as well as items of personal property related to their operation of a marine fueling facility on the land. The city pursued collection of its money judgment for several years before suspending its efforts; about eight years later it resumed its attempts to collect. The tenants, contending that they had reasonably assumed by the passage of time that the judgment had been satisfied, moved for an accounting of their left-behind property and the amount still owing on the judgment. The city informed the superior court that it had executed only on bank accounts and wages and that several improvements had reverted to city ownership and therefore did not count against the judgment. It claimed not to know what happened to the rest of the property the tenants identified as having been left behind. The superior court found the city’s response sufficient and allowed execution to continue. The tenants appealed, arguing that they were entitled to a better accounting of their left-behind property and that the city was estopped from contending that the judgment was still unsatisfied. The Alaska Supreme Court agreed in part, holding that it was the city’s burden to produce evidence of the property’s disposition and that it failed to carry this burden. Furthermore, the Supreme Court held there were genuine issues of material fact about whether the city was estopped from contending that the judgment remains unsatisfied. The Court therefore reversed the superior court’s order accepting the accounting and allowing execution to continue. The matter was remanded for further proceedings. View "Beecher v. City of Cordova" on Justia Law

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A mother and son disputed ownership of a house in Ketchikan. The son contended his mother gave him the property following her husband’s death, and that he spent years repairing and renovating it on the understanding that it was his. His mother argued the house was still hers, and agreed to transfer title only if her son repaired the property and paid off the mortgage, which he failed to do. Following a bench trial on the son’s quiet title claim, the superior court found that he failed to prove his mother’s intent to transfer the property. Because the superior court properly applied the relevant legal doctrines and did not clearly err in its findings of fact, the Alaska Supreme Court affirmed its judgment. View "Dixon v. Dixon" on Justia Law

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Mariam Bibi and Javed Raja married and later bought a home in Anchorage with loans from IndyMac Bank, F.S.B. (IndyMac). IndyMac’s loans were secured by deeds of trust on their home. The couple later received an additional loan of around $10,000 from Kevin Elfrink. Over the course of six years, the couple made irregular payments, increased the loan balance three times until it exceeded $25,000, and eventually defaulted. Elfrink initiated foreclosure proceedings and then bought the house at his own foreclosure sale by credit-bidding all money he asserted was due to him under the modified promissory note, satisfying the couple’s debt to him. Following the foreclosure, Elfrink filed a complaint against Bibi and Raja for forcible entry and detainer to remove them from the home. Bibi moved out of her home but filed a counterclaim for usury, quiet title and possession, and surplus proceeds from the foreclosure sale. Raja confessed judgment to his removal from the home. As the lawsuit proceeded, IndyMac initiated a foreclosure on its senior deed of trust and Elfrink bought the house for a second time at IndyMac’s foreclosure sale. The superior court ultimately denied Bibi’s usury claim, determining that Bibi had no standing, her claim was time barred, and in any event, the loan did not violate Alaska’s usury statute because the funding fee was not interest and the usury statute did not apply once the loan’s principal rose over $25,000. The superior court also denied Bibi’s claim for title, ruling that the foreclosure statutes gave Elfrink clear title. Bibi appealed. After review, the Alaska Supreme Court held that: (1) Bibi has standing; (2) it was error for the superior court to deny Bibi’s usury claim because the funding fee was disguised interest and violated the usury statute, which applied to at least the initial period of the loan’s life; and (3) the superior court correctly denied Bibi’s claim for title and possession of her prior home because IndyMac’s foreclosure extinguished her claim to the property. View "Bibi v. Elfrink" on Justia Law

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In 1994, Victoria Zalewski purchased a 60 foot by 90 foot rectangle of land, Lot 8A. Just south of Lot 8A was a parking lot. Although the parking lot was recorded as being part of a larger adjacent lot known as Lot 9A, no boundary line was apparent between Lot 8A and the parking lot. Zalewski never had her lot surveyed and mistakenly assumed when she purchased Lot 8A that it included the parking lot. Prospector Outfitters obtained Lot 9A (including the parking lot) in 1994, and in 2007 conveyed the lot to Glenn Prax, Phillip Prax, and Marianne Kittridge (the Praxes). Various members of the Prax family shared in the ownership and management of Prospector Outfitters and its properties before and after the 2007 transfer of Lot 9A. Zalewski had a duplex on her property. She and tenants consistently used the parking lot for parking, entry, and exit. Zalewski and her husband maintained the parking lot, keeping it graveled and clear of snow and plants. They installed electrical outlets on the lot for headbolt heaters and paid for the electricity. Zalewski built a shed on the lot in 2008; she used the shed and other parts of the lot for storage. The duplex occupants received mail at a mailbox placed within the parking lot. Zalewski consistently used the parking lot on Lot 9A, but her exclusive use ended during the summer of 2002, when the owners of neighboring Lots 10B and 11B excavated their property to prepare it for construction, and they stored their equipment and materials on the parking lot. This use of the property ended in autumn of 2002. Glenn Prax knew that Zalewski was using the parking lot and repeatedly attempted to talk to her about his family’s ownership of the lot. Between 2001 and 2003 he left two notes at the duplex explaining his family’s claim to the property and suggesting some discussion about the boundary. Around 2005 he spoke to a tenant of the building about the issue, and in 2009 or 2011 he spoke to Zalewski herself about the boundary. In 2012 and 2013 he sent letters to Zalewski outlining the Praxes’ claim to the property, but he received no response. After his last attempt in 2013 he set up sawhorses barring Zalewski from the parking lot. Zalewski removed them and filed suit in July 2013. The trial court ruled that from 2002 to 2012 the neighbor had perfected an adverse possession claim to the lot and held that amendments made to the relevant law in 2003 did not apply to the neighbor’s claim because her period of possession began in 2002. The family appealed, arguing that 2003 statutory changes should have been applied to this case. The Alaska Supreme Court agreed, reversed the trial court, and remanded for further proceedings. View "Prax v. Zalewski" on Justia Law