Articles Posted in Real Estate & Property Law

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At issue was whether a certificate of title was entered when a deed was accepted by the Office of the Assistant Registrar of the Land Court and stamped with a new certificate of title number. Plaintiff-mortgagor brought this action against Defendant-purchaser arguing that the non-judicial foreclosure sale of certain property was not lawfully conducted. Defendant moved for summary judgment arguing that Plaintiff’s arguments to invalidate the foreclosure sale were untimely because they were not raised before the issuance of a new certificate of title. Plaintiff argued in response that a new certificate of title had not been issued, and therefore, Plaintiff was not prevented from challenging the non-judicial foreclosure. The circuit court granted summary judgment, concluding that the issuance of a new certificate of title number was sufficient to provide Defendant with statutory protection. The Supreme Court vacated the grant of summary judgment and remanded for further proceedings, holding (1) assignment of a new certificate of title number is not the statutory equivalent of an entry of a certificate of title, and therefore, the evidence in this case did not establish that a certificate of title had been entered; (2) accordingly, Plaintiff was not barred from bringing this action; and (3) an issue of material fact existed precluding summary judgment. View "Wells Fargo Bank, N.A. v. Omiya" on Justia Law

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The Supreme Court affirmed the circuit court’s grant of partial summary judgment to Plaintiff on remand from a decision by the intermediate court of appeals (ICA) in Plaintiff’s favor on two issues relating to the existence of an implied easement from a landlocked parcel of land to the nearest road. The ICA held (1) the “unity of ownership” element for an implied easement may be satisfied by the Kingdom of Hawaii’s ownership of the two parcels prior to severance; and (2) the statute of limitations in Haw. Rev. Stat. 657-31 does not apply to implied easements, as in this case, but only to easements by prescription. The Supreme Court affirmed the circuit court’s grant of summary judgment on each issue, holding that the ICA did not err in its judgment. View "Malulani Group, Ltd. v. Kaupo Ranch, LTD" on Justia Law

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Harrison, an owner of two commercial apartments within a mixed-use development project managed by Casa, sued, alleging she was improperly assessed for expenses that should have been charged only to residential apartment owners, related to elevators, lanai railings, drains, cable television, and pest control. The circuit court granted summary judgment in Casa’s favor, concluding that the disputed assessments were not for limited common elements exclusive to the residential apartments, but were for common elements, and were, therefore, expenses for which Harrison must pay her pro rata share. The circuit court further concluded Harrison was estopped from disputing the expenses because she knew or should have known that Casa had been assessing her for the disputed items for quite some time. The Supreme Court of Hawaii vacated and remanded. Citing the Restated Declaration of Horizontal Property Regime and Hawaii Revised Statutes Chapter 514A and the declaration of condominium ownership, the court held that the elevators and lanai railings are limited common elements and that genuine issues of material fact exist as to whether the drains and cable television wires are common elements. Harrison is not responsible for expenses of limited common elements. The court rejected the claim of estoppel. View "Harrison v. Casa De Emdeko, Inc." on Justia Law

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A purchaser of property that is subject to a mortgage to which the purchaser is not a party may challenge a foreclosing plaintiff’s entitlement to enforce the note. Karen Zakarian executed a promissory note secured by a mortgage executed on certain property. The mortgage was ultimately assigned to Wells Fargo. As a result of a separate foreclosure action, a court-appointed commissioner conveyed the property to Jonathan Behrendt. Wells Fargo filed a complaint seeking foreclosure of the mortgage and sale of the property. The circuit court granted summary judgment for Wells Fargo, concluding that Wells Fargo was entitled to have the property sold free and clear of Behrendt’s claim. On appeal, Behrendt argued that genuine issues of material fact existed regarding Wells Fargo’s standing to sue and whether Wells Fargo was the holder of the note. In response, Wells Fargo argued that because Behrendt was not a party to the mortgage and the mortgage conferred no contractual rights or standing on Behrendt, Behrendt could not attack the foreclosure. The Supreme Court disagreed, holding (1) Behrendt may challenge the foreclosure; and (2) the evidence Wells Fargo presented regarding its entitlement to foreclose at the time the complaint was filed was not admissible on the grounds asserted. View "Wells Fargo Bank, N.A. v. Behrendt" on Justia Law

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In this appeal from the denial of Petitioner’s motion for return of her personal possessions allegedly taken during the execution of a writ of ejectment after the foreclosure sale of a house in which she resided, the Supreme Court held (1) although the federal Protecting Tenants at Foreclosure Act of 2009 (PTFA) does not require a residential lease to be in writing, Petitioner was not entitled to PTFA protections because she did not qualify as a bona fide tenant under the PTFA; (2) generally, the landlord-tenant code applies to residential leases entered into before a lis pendens, but Petitioner was not a residential tenant; (3) Petitioner was afforded her due process rights to notice and an opportunity to be heard at a meaningful time and in a meaningful manner; but (4) the circuit court erred in failing to grant Petitioner’s motion for return of possessions where the possessions included items of no financial value to the purchase of the property at foreclosure but with great sentimental value to Petitioner. View "Peak Capital Group, LLC v. Perez" on Justia Law

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The County of Maui’s land use regulations did not constitute a regulatory taking of property owned by Plaintiffs. Plaintiffs brought suit against the County arguing that the County’s land use regulations and restrictions prevented them from building a family house on their beachfront lot. Plaintiffs asserted that the County’s actions constituted a regulatory taking for which they were entitled to just compensation. The jury delivered a verdict in favor of the County. The Supreme Court affirmed, holding (1) there was evidence to support the jury’s verdict in favor of the County; and (2) the circuit court’s order granting in part and denying in part the County’s motion for costs was not in error. View "Leone v. County of Maui" on Justia Law

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The Supreme Court affirmed the portion of the intermediate court of appeals’ (ICA) judgment denying without prejudice Philip Kozma’s request for attorneys’ fees related to his appeal but vacated the portion of the ICA’s judgment denying costs. The appeal was related to a foreclosure action brought by Deutsche Bank National Trust Company. The circuit court granted Deutsche Bank’s motion for summary judgment and decree of foreclosure. On appeal, the ICA vacated the circuit court’s judgment and remanded for further proceedings. Upon Kozma’s request seeking attorney’s fees and costs related to his appeal, the ICA determined that Kozma was not a “prevailing party’ at this point in the proceeding. The Supreme Court held (1) the ICA did not err in denying Kozma’s request for attorney’s fees because there was no “prevailing party” entitled to such fees under Haw. Rev. Sat. 607-14; but (2) the ICA incorrectly concluded that Kozma was not entitled to costs pursuant to Haw. R. App. P. 39. View "Deutsche Bank National Trust Co. v. Kozma" on Justia Law

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The circuit court and the intermediate court of appeals (ICA) did not err in determining that the State obtained an easement over and across the cement path atop a seawall (the Seawall) by common law implied dedication. For approximately sixty-five years, residents and visitors of O’ahu have walked along the Seawall on or near seaward boundaries of certain property to access the beach, shoreline, and ocean. After the State disclaimed any duty to maintain the Seawall, Plaintiffs commenced this lawsuit to require the State to maintain and keep the Seawall in good and safe condition. The circuit court ruled that the State had obtained an easement for public use over and across the seawall by virtue of common law implied dedication. The ICA affirmed. The Supreme Court affirmed in light of Hawaii’s long-standing principles of common law, the historical significance and roots of implied dedication in the jurisdiction as evidenced by nearly 150 years of Supreme Court precedent, and the undisputed evidence in this case. View "Gold Coast Neighborhood Ass’n v. State" on Justia Law

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An appeal of an order confirming sale is moot when the appellant does not post a supersedeas bond to obtain a stay of the proceedings prior to the sale of the property to a bona fide purchaser. In this case R. Onaga, Inc. (Onaga) and The Bank of New York Mellon FKA the Bank of New York (BONY) each initiated foreclosure proceedings against property once owned by Robert and Marlyn Marquez. Both entities claimed to have a first priority lien. The circuit court concluded that BONY had a first priority lien and granted summary judgment in favor of BONY. Onaga moved to stay BONY’s foreclosure proceeding, and the circuit court ordered Onaga to post a supersedeas bond in order to stay the proceedings. Onaga did not post a bond. In the meantime, Lyle and Linda Ferrara were the highest bidder at the foreclosure sale, and the circuit court confirmed the sale. The intermediate court of appeals (ICA) vacated the circuit court’s grant of summary judgment. The Supreme Court reversed the ICA’s judgment and affirmed the circuit court’s judgment, holding that because Onaga failed to post a supersedeas bond as required by the circuit court, its appeal of the foreclosure proceeding was moot in light of the Ferraras’ certificate of title. View "Bank of New York Mellon v. R. Onaga, Inc." on Justia Law

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The Supreme Court affirmed its decision in Narayan I, in which the court held that Plaintiffs, a group of individual condominium owners, could not be compelled to arbitrate claims arising from the financial breakdown of a condominium project. Specifically, the court held in Narayan I that the arbitration clause was unenforceable because the terms of the documents at issue were ambiguous with respect to Plaintiffs’ intent to arbitrate and that portions of the arbitration clause were unconscionable. The United States Supreme Court vacated and remanded Narayan I for further consideration in light of its recent decision in DIRECTV, Inc. v. Imburgia, 577 U.S. __ (2015), which held that state law must place arbitration agreements on equal footing with all other contracts. After recognizing this principle, the Hawaii Supreme Court held that that the arbitration clause at issue in the present case was unconscionable under common law contract principles. View "Narayan v. Ritz-Carlton Development Co." on Justia Law