Monday, August 23, 2010
OCA at ICSC in Orlando
Owners' Counsel of America is attending the International Council of Shopping Centers (ICSC) Florida Convention in Orlando today and tomorrow. More details about the convention, speakers and topics later today.
Friday, August 20, 2010
Washington's Supreme Court "stroll through Sherwood Forest" to settle a property rights case
The Washington Supreme Court issued an opinion Thursday in Proctor v. Huntington, No. 82326-0 (August 19, 2010), a case involving a property line dispute between neighbors. The Court was split 5-4 with the majority finding in favor of the encroaching property owner and upholding the opinions of a Skamania County judge and the Court of Appeals.
A little history is helpful in digesting this particular property dispute. The neighbors, Noel Proctor and Ford and Christina Huntington, purchased property in the early 1990's from a previous owner who had subdivided a large tract of land into 2 parcels. Proctor purchased 30 acres while the Huntingtons purchased the adjacent 27 acres. Prior to purchasing said parcels, both neighbors had been shown “the general property lines of the two parcels” by the seller.
After taking ownership to their 27 acres, the Hutington's spent the summers of 1994 and 1995 camping on portions of the property. During that time they were deciding upon the location of where they would construct their home. When they had determined the ideal spot for their dream home, the Huntington's consulted a surveyor to confirm the northwest corner of the property (which would be the corresponding northeast corner of Proctor's property). This particular surveyor was familiar with the property having marked property lines for the purpose of regulating logging activities north of the neighboring properties. The surveyor pointed to a survey pin and suggested to the Huntington's that this particular pin was the northwest boundary corner. Unfortunately, for all involved, the surveyor was a bit off in designating that particular pin as the corner suggested. In fact, he was 400 feet off.
In 1996, the Huntington's armed with the surveyor's incorrect information, proceeded to construct a home, garage and well on the portion of the property they had determined to be the most opportune for their home, which they later learned encroached 400 feet onto Proctor's land. Proctor also constructed a home on his 30 acres and for the next few years the neighbors lived peaceful side by side.
In 2004, Proctor became concerned that a different neighbor had encroached upon his land. In order to confirm the property lines, Proctor hired a surveyor to perform and draw a complete property survey, which showed that the Huntington's had built their home, garage and well on Proctor's property. Of course, Proctor approached his neighbors with this information and proceeded to negotiate a resolution to the situation.
When it became evident that the neighbors would not be able to work out a resolution between themselves, Proctor sued the Huntingtons to quiet title and remove the Huntingtons' improvement from his property. The Huntingtons filed a counter claim arguing adverse possession.
The Huntingtons' adverse possession claim didn't work with the County Court Judge as they had only possessed the property for 8 years, from 1996 to 2004, rather than the required 10 years. (The Huntingtons counted the 2 summers they spent as nomads camping in various locations as 2 years in adverse possession. The Judge correctly refused to count these years.) However, the Judge did find that the Huntingtons' acted in good faith and that the injunctive relief requested by Proctor requiring the Huntingtons to remove the structures built on his property "would be oppressive...and inequitable." (The trial court relied upon Arnold v. Melani, 75 Wn.2d 143, 437 P.2d 908, 449 P.2d 800, 450 P.2d 815 (1968-69).)
Rather, the trial court ordered Proctor to sell the Huntingtons the acre of land upon which they had built their home and other improvements at the fair market value of $25,000 which was testified to by an expert appraiser during the trial. The court noted that under this resolution, neither side prevails. And, both sides appealed. The Appellate Court affirmed the trial court's remedy.
The key issue for Proctor was that the improvements constructed by his neighbors were an absolute encroachment upon his property not a slight encroachment by a few inches or even a few feet, as such, Arnold did not apply. However, the Washington Supreme Court agreed with the trial court's application of Arnold in this case citing in the majority opinion written by Justice Debra Stephens,
In the instant case, the expense of relocating an entire home, garage and well (testified at $300,000 by a construction expert) was viewed as inequitable by the trial court and upheld by both the appellate and Washington Supreme Court.
A little history is helpful in digesting this particular property dispute. The neighbors, Noel Proctor and Ford and Christina Huntington, purchased property in the early 1990's from a previous owner who had subdivided a large tract of land into 2 parcels. Proctor purchased 30 acres while the Huntingtons purchased the adjacent 27 acres. Prior to purchasing said parcels, both neighbors had been shown “the general property lines of the two parcels” by the seller.
After taking ownership to their 27 acres, the Hutington's spent the summers of 1994 and 1995 camping on portions of the property. During that time they were deciding upon the location of where they would construct their home. When they had determined the ideal spot for their dream home, the Huntington's consulted a surveyor to confirm the northwest corner of the property (which would be the corresponding northeast corner of Proctor's property). This particular surveyor was familiar with the property having marked property lines for the purpose of regulating logging activities north of the neighboring properties. The surveyor pointed to a survey pin and suggested to the Huntington's that this particular pin was the northwest boundary corner. Unfortunately, for all involved, the surveyor was a bit off in designating that particular pin as the corner suggested. In fact, he was 400 feet off.
In 1996, the Huntington's armed with the surveyor's incorrect information, proceeded to construct a home, garage and well on the portion of the property they had determined to be the most opportune for their home, which they later learned encroached 400 feet onto Proctor's land. Proctor also constructed a home on his 30 acres and for the next few years the neighbors lived peaceful side by side.
In 2004, Proctor became concerned that a different neighbor had encroached upon his land. In order to confirm the property lines, Proctor hired a surveyor to perform and draw a complete property survey, which showed that the Huntington's had built their home, garage and well on Proctor's property. Of course, Proctor approached his neighbors with this information and proceeded to negotiate a resolution to the situation.
When it became evident that the neighbors would not be able to work out a resolution between themselves, Proctor sued the Huntingtons to quiet title and remove the Huntingtons' improvement from his property. The Huntingtons filed a counter claim arguing adverse possession.
The Huntingtons' adverse possession claim didn't work with the County Court Judge as they had only possessed the property for 8 years, from 1996 to 2004, rather than the required 10 years. (The Huntingtons counted the 2 summers they spent as nomads camping in various locations as 2 years in adverse possession. The Judge correctly refused to count these years.) However, the Judge did find that the Huntingtons' acted in good faith and that the injunctive relief requested by Proctor requiring the Huntingtons to remove the structures built on his property "would be oppressive...and inequitable." (The trial court relied upon Arnold v. Melani, 75 Wn.2d 143, 437 P.2d 908, 449 P.2d 800, 450 P.2d 815 (1968-69).)
Rather, the trial court ordered Proctor to sell the Huntingtons the acre of land upon which they had built their home and other improvements at the fair market value of $25,000 which was testified to by an expert appraiser during the trial. The court noted that under this resolution, neither side prevails. And, both sides appealed. The Appellate Court affirmed the trial court's remedy.
The key issue for Proctor was that the improvements constructed by his neighbors were an absolute encroachment upon his property not a slight encroachment by a few inches or even a few feet, as such, Arnold did not apply. However, the Washington Supreme Court agreed with the trial court's application of Arnold in this case citing in the majority opinion written by Justice Debra Stephens,
"Ordinarily,...a mandatory injunction will issue to compel the removal of an encroaching structure. However, it is not to be issued as a matter of course...[T]he court must grant equity in a meaningful manner, not blindly....A court asked to eject an encroacher must instead reason through the Arnold elements as part of its duty to achieve fairness between the parties...This is the essence of the court's equity power, which is inherently flexible and fact-specific."(Opinion, p. 12)
In the instant case, the expense of relocating an entire home, garage and well (testified at $300,000 by a construction expert) was viewed as inequitable by the trial court and upheld by both the appellate and Washington Supreme Court.
The majority opinion also outlines the issues of encroachment, common law property rights and remedies as well as a trend in recent years from a more rigid approach to a more flexible view of property law. It's not an overly long opinion (15 pages) and worth reading. The Court concludes:
In upholding imposed by the trial court, we recognize the evolution of property law in Washington away from rigid adherence to an injunction rule and toward a more reasoned, flexible approach. Nothing in our holding today undermines fundamental property rights: it remains true that a landowner may generally obtain an injunction to eject trespassers. Proctor does not forfeit the right to his land, nor do the Huntingtons get something for nothing.(Opinion, p. 13)
The dissent was written by Justice Richard Sanders, joined by Justices Barbara Madsen, Gerry Alexander and Jim Johnson, found the majority opinion to be "inconsistent with the nature of private property." (We also recommend reading this dissent and not only for its witty references to Robin Hood.)
A fundamental aspect of private property is the landowner's right to choose if he or she will sell the property and, if so, for how much. The majority cannot simply stroll through Sherwood Forest, redistribute property, and say any harm is slight if the victims are paid what the court determines is fair market value. If Proctor really valued his property only at the market value, he would have sold it already.While we might find that Proctor v. Huntington does not necessarily qualified as a Robin Hood-like redistribution of property, we do agree with the dissenting Justices that if Proctor had valued his property solely at fair market value, he would have sold it as a willing seller to the Huntingtons or some other willing buyer. Still we agree more with the final words of Sanders dissent: "The moral of this story should be: before you build, especially near a property line, get a survey."(Dissent, p.6)
For more news and commentary on this case see:
Monday, August 9, 2010
7th Annual Brigham-Kanner Property Rights Conference September 30 & October 1, 2010
The annual Brigham-Kanner Property Rights Conference presented by the William & Mary Property Rights Project and the Institute of The Bill of Rights Law will be held September 30 - October 1, 2010 at the William & Mary Law School in historic Williamsburg, VA. The Brigham-Kanner Property Rights Conference and Brigham-Kanner Property Rights Prize are named in recognition of OCA Members Toby Prince Brigham and Gideon Kanner for their lifetime contributions to private property rights, their efforts to advance the constitutional protection of property, and their accomplishments in preserving the important role that private property plays in protecting individual and civil rights. Mr. Brigham is an attorney who has specialized in eminent domain and property rights law for more than 40 years and is founding partner of Brigham Moore LLP in Florida. Professor Kanner is Professor of Law Emeritus at the Loyola Law School Los Angeles and has been a practicing appellate lawyer in eminent domain and inverse condemnation for forty years. Professor Kanner is currently Of Counsel at Mannatt, Phelps & Phillips, LLP in California.
Now in its seventh year, the conference is designed to bring together members of the bench, bar and academia to explore recent developments in takings law and other areas of the law affecting property rights. During the conference, the Project presents the Brigham-Kanner Prize to an outstanding figure in the field. Previous recipients of the Brigham-Kanner Prize include Professor Frank I. Michelman of Harvard Law School (2004), Professor Richard A. Epstein of the University of Chicago Law School (2005), Professor James W. Ely, Jr. of Vanderbilt Law School (2006), Professor Margaret Jane Radin of the University of Michigan Law School (2007), Professor Robert C. Ellickson of Yale Law School (2008) and Professor Richard E. Pipes of Harvard University (2009). (See our previous posts here and here.)
Professor Carol M. Rose of James E. Rogers College of Law at the University of Arizona will be honored with the 2010 Brigham-Kanner Property Rights Prize. Professor Rose is the Ashby Lohse Professor of Water and Natural Resource Law and the Gordon Bradford Tweedy Professor of Law and Organization, Emerita, and the Fred Johnson Chair in Property and Environmental Law, Yale Law School. Her books include Perspectives on Property Law (2d ed. 1995) (3d ed. 2002) co-author with Bruce Ackerman & Robert Ellickson) and Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership (1994).
Now in its seventh year, the conference is designed to bring together members of the bench, bar and academia to explore recent developments in takings law and other areas of the law affecting property rights. During the conference, the Project presents the Brigham-Kanner Prize to an outstanding figure in the field. Previous recipients of the Brigham-Kanner Prize include Professor Frank I. Michelman of Harvard Law School (2004), Professor Richard A. Epstein of the University of Chicago Law School (2005), Professor James W. Ely, Jr. of Vanderbilt Law School (2006), Professor Margaret Jane Radin of the University of Michigan Law School (2007), Professor Robert C. Ellickson of Yale Law School (2008) and Professor Richard E. Pipes of Harvard University (2009). (See our previous posts here and here.)
Professor Carol M. Rose of James E. Rogers College of Law at the University of Arizona will be honored with the 2010 Brigham-Kanner Property Rights Prize. Professor Rose is the Ashby Lohse Professor of Water and Natural Resource Law and the Gordon Bradford Tweedy Professor of Law and Organization, Emerita, and the Fred Johnson Chair in Property and Environmental Law, Yale Law School. Her books include Perspectives on Property Law (2d ed. 1995) (3d ed. 2002) co-author with Bruce Ackerman & Robert Ellickson) and Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership (1994).
OCA Members Joseph T. Waldo (Virginia), James S. Burling (Pacific Legal Foundation, California) and Leslie A. Fields (Colorado) will be presenting October 1 . Mr. Waldo will participate in a panel entitled "Defining Just Compensation: How Do You Get There and What Does It Mean?" He will be joined by James W. Ely, Jr. (Milton R. Underwood Chair in Law Emeritus & Professor of History Emeritus, Vanderbilt University) and The Honorable Robert W. Wooldridge Jr. (Retired, Fairfax Circuit Court Judge and Senior Lecturer in Law, George Mason Law School). Mr. Burling and Ms. Fields will be joined by John D. Echeverria (Professor of Law, Vermont Law School) in a discussion regarding "The Uneasy Relationship Between Public and Private Property Rights." Other speakers expected at the conference include Robert C. Ellickson (Walter E. Meyer Professor of Property and Urban Law, Yale Law School), Michael A. Heller (Lawrence A. Wien Professor of Real Estate Law, Columbia Law School), Thomas W. Merrill (Charles Evans Hughes Professor of Law, Columbia Law School), Jedediah Purdy (Professor of Law, Duke Law School), Mark Sagoff (Director and Senior Research Scholar at the Institute for Philosophy and Public Policy, University of Maryland), Daniel J. Sharfstein (Associate Professor of Law, Vanderbilt Law School), Henry E. Smith (Fessenden Professor of Law, Harvard Law School), and Laura S. Underkuffler (J. Dupratt White Professor of Law, Cornell Law School).
The conference begins on Thursday, September 30th with an evening reception and dinner in the historic Sir Christopher Wren Building, the oldest college building in the United States. The 2010 Brigham-Kanner Property Rights Prize will be awarded to Professor Rose on Thursday evening. Panel discussions will take place on Friday, October 1st at the law school. With the wealth of academic knowledge and practical experience held by this collective group of panelists, the 2010 Conference promises to be quite informative and stimulating. Participation in Thursday's event is not required to attend the panel discussions on Friday. For more information about the 2010 conference, please see the conference brochure here or contact Kathy Pond at (757) 221-3796 or ktpond@wm.edu.
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