Articles Posted in Real Estate & Property Law

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This case involved the transfer of property that once belonged to Vanessa Ward, now in possession of Selene RMOF II REO Acquisitions II LLC (“Selene”), which acquired the property in 2012 from a purchaser at a nonjudicial foreclosure sale. It also concerned Ward's claim that she was the victim of mortgage fraud regarding the property in 2004 and that all subsequent property transfers were therefore void. Selene challenged an unpublished Court of Appeals decision reversing an order granting Selene a writ of restitution evicting Ward from the property. At issue was: (1) whether Selene was authorized to bring an unlawful detainer action as a purchaser from someone who had bought the property at a nonjudicial foreclosure sale; and (2) whether the summary procedures of unlawful detainer were available where Ward asserted ownership of the property she occupied via an unrecorded quitclaim deed. The Washington Supreme Court held unlawful detainer was available to Selene under the circumstances of this case and reversed the Court of Appeals. View "Selene RMOF II Reo Acquisitions II, LLC v. Ward" on Justia Law

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Petitioner Chelan Basin Conservancy (Conservancy) sought the removal of six acres of fill material that respondent GBI Holding Co. added to its property in 1961 to keep the formerly dry property permanently above the artificially raised seasonal water fluctuations of Lake Chelan. At issue was whether the State consented to the fill's impairment of that right and, if so, whether such consent violated the public trust doctrine. After review, the Washington Supreme Court found the Court of Appeals correctly concluded that the legislature consented to the fill's impairment of navigable waters under RCW 90.58.270 (the Savings Clause), but the Court of Appeals prematurely concluded such consent did not violate the public trust doctrine. Because the trial court never reached the highly factual public trust issue, the Court reversed and remanded to the trial court to determine in the first instance whether RCW 90.58.270 violated the public trust doctrine. View "Chelan Basin Conservancy v. GBI Holding Co." on Justia Law

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An exception to the open meeting mandate of the Washington's Open Public Meetings Act (OPMA) permits governing bodies to enter executive session "[t]o consider the minimum price at which real estate will be offered for sale or lease when public knowledge regarding such consideration would cause a likelihood of decreased price." The parties disputed the scope of this exception as applied to five executive sessions conducted by the Port of Vancouver USA (the Port). The scope of this "minimum price" exception was a matter of first impression for the Washington Supreme Court. It held that a government entity may enter executive session to discuss the minimum acceptable value to sell or lease property, but not to discuss all factors comprising that value. To the extent that various factors directly alter the lowest acceptable value, the governing body may discuss how these factors impact the minimum price; but general discussion of the contextual factors themselves must still occur at an open public meeting. As a result, the Supreme Court reversed the trial court's partial summary judgment in favor of the Port and remanded for further proceedings. View "Columbia Riverkeeper v. Port of Vancouver USA" on Justia Law

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At issue in this case was the applicability of a broad, absolute insurance pollution exclusion clause to a claim based on negligent installation of a hot water heater that led to the release of toxic levels of carbon monoxide in a residential home. Zhaoyun "Julia" Xia purchased a new home constructed by Issaquah Highlands 48 LLC. Issaquah Highlands carried a policy of commercial general liability insurance through ProBuilders. Soon after moving into her home, Xia began to feel ill. A service technician from Puget Sound Energy investigated Xia's home and discovered that an exhaust vent attached to the hot water heater had not been installed correctly and was discharging carbon monoxide directly into the confines of the basement room. The claims administrator for ProBuilders, NationsBuilders Insurance Services Inc. (NBIS), mailed a letter to Xia indicating that coverage was not available under the Issaquah Highlands policy. As a basis for its declination of coverage, NBIS rested on two exclusions under the policy: a pollution exclusion and a townhouse exclusion. NBIS refused to either defend or indemnify Issaquah Highlands for Xia's loss. When a nonpolluting event that was a covered occurrence causes toxic pollution to be released, resulting in damages, the Washington Supreme Court believed the only principled way for determining whether the damages are covered or not was to undertake an efficient proximate cause analysis. Under the facts presented here, the Court found ProBuilders Specialty Insurance Co. correctly identified the existence of an excluded polluting occurrence under the unambiguous language of its policy. However, it ignored the existence of a covered occurrence negligent installation-that was the efficient proximate cause of the claimed loss. Accordingly, coverage for this loss existed under the policy, and ProBuilders's refusal to defend its insured was in bad faith. View "Xia v. Probuilders Specialty Ins. Co." on Justia Law

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Barry Ackerley died in 2011. In 2008 and 2010, Ackerley made substantial gifts of money. On these inter vivos gifts, Ackerley paid the required federal gift taxes, which amounted to over $5.5 million. Upon his death, Ackerley was required under the federal estate tax code to include the value of the gift taxes paid in his federal taxable estate because he died within three years of making the gifts. Ackerley's estate thus included the gift taxes in its federal estate tax return. But when Ackerley's estate filed his Washington estate tax return, it did not include the $5.5 million in federal gift taxes paid as part of the Washington taxable estate. The Department of Revenue issued a notice of assessment, notifying Ackerley's estate that it owed additional Washington estate taxes on the amount of federal gift taxes paid. The Estate and Transfer Tax Act, chapter 83.100 RCW, made clear that calculating a Washington taxable estate begins with the federal taxable estate and that the Washington definition of "transfer" is the same as the federal definition. Under federal estate tax law, the gift tax paid is included in the taxable estate under the "gross-up rule" and, as such, is transferred upon death as part of the entire estate. Following the legislature's clear mandate, the Washington Supreme Court must also find that the gift tax paid is part of the Washington taxable estate and transferred upon death as part of the entire estate. Thus, the DOR properly included the gift tax paid in its assessment of Ackerley's estate. View "Estate of Ackerley v. Dep't of Revenue" on Justia Law

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The issue this case presented for the Supreme Court’s review was whether the Upper Skagit Indian Tribe's (Tribe) assertion of sovereign immunity requires dismissal of an in rem adverse possession action to quiet title to a disputed strip of land on the boundary of property purchased by the Tribe. The superior court concluded that because it had in rem jurisdiction, it could determine ownership of the land without the Tribe's participation. An inquiry under CR 19, involved a merit-based determination that some interest will be adversely affected in the litigation. Where no interest is found to exist, especially in an in rem proceeding, nonjoinder presents no jurisdictional barriers. The Supreme Court found that the Tribe did not have an interest in the disputed property; therefore, the Tribe's sovereign immunity was no barrier to this in rem proceeding. The trial court properly denied the Tribe's motion to dismiss and granted summary judgment to the property owner. View "Lundgren v. Upper Skagit Indian Tribe" on Justia Law

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Two companies applied for permits to expand their oil terminals on Grays Harbor. The issue here this case presented was whether the Ocean Resources Management Act (ORMA), applied to these expansion projects. The Shoreline Hearings Board (Board) and the Court of Appeals held that ORMA did not apply to these projects based on limited definitions in the Department of Ecology's (DOE) ORMA implementation regulations. The parties also contested whether these projects qualify as "ocean uses" or "transportation" under DOE's regulations. The Washington Supreme Court held that the Court of Appeals’ interpretation improperly restricted ORMA, which was enacted to broadly protect against the environmental dangers of oil and other fossil fuels. The Supreme Court also held that these projects qualified as both ocean uses and transportation. And though not discussed by the parties or the Court of Appeals, the Supreme Court found these projects qualified as "coastal uses" under DOE's regulations. Accordingly, it reversed the Court of Appeals and remanded for further review under ORMA's provisions. View "Quinault Indian Nation v. City of Hoquiam" on Justia Law

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Leslie Pendergrast and Robert Matichuk bought adjacent lots separated by a solid wooden fence. The fence enclosed a venerable cherry tree on Pendergrast's lot. For several years, Pendergrast and Matichuk maintained their lots as if the fence was the boundary line between them. However, as would later be determined, the fence stood several feet from the deed line and, according to the legal description, on Matichuk's land. The cherry tree stood on the disputed part of Pendergrast's lot. Instead of suggesting mediation or arbitration or filing a quiet title suit, and over Pendergrast's strenuous objection and a "tearful plea," Matichuk tore down the fence, built a new one on the deed line, and had the cherry tree cut down. Litigation ensued, and Pendergrast prevailed at summary judgment, at trial, and at the Court of Appeals. Matichuk appealed, claiming the disputed land was his and if not, the jury gave Pendergrast too much relief. Finding no error, the Supreme Court affirmed the Court of Appeals. View "Pendergrast v. Matichuk" on Justia Law

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Central Puget Sound Regional Transit Authority (Sound Transit) condemned property owned by Airport Investment Company (AIC) in order to secure easements to construct and operate an elevated light rail. The parties could not agree on the amount of just compensation for the taking, so the matter proceeded to trial. AIC argued it was statutorily entitled to attorney fees because Sound Transit failed to make a valid settlement offer 30 days before trial. Specifically, AIC argued that the 30-day offer Sound Transit made did not reflect the reduced temporary construction easement it ultimately obtained, making the offer ineffective or resulting in a total abandonment of the condemnation. AIC also sought a new trial, alleging the trial court erroneously allowed Sound Transit's counsel to question AIC's president about the taking valuation of an appraisal expert who did not testify. The Supreme Court, after review, affirmed the Court of Appeals: a condemnee is entitled to attorney fees under RCW 8.25.070(l)(a) only "[i]f[the] condemnor fails to make any written offer in settlement" at least 30 days before trial. Sound Transit made a timely settlement offer, which was not rendered ineffective by subsequent revisions to reduce the impact of its temporary construction easement. The Court was not persuaded by AIC's evidentiary objection, finding the trial court properly admitted the president's testimony under ER 80l(d)(2) as an admission of a party opponent. View "Cent. Puget Sound Reg'l Transit Auth. v. Airport Inv. Co." on Justia Law

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The United States Court of Appeals for the Ninth Circuit certified a question of Washington law to the Washington Supreme Court: "Does a title company owe a duty of care to third parties in the recording of legal instruments?" This certified question arose out of a civil action for money damages. Plaintiffs Centurion Properties Ill LLC (CP Ill) and SMI Group XIV LLC (collectively Plaintiffs) asserted that defendant Chicago Title Insurance Company negligently breached its duty of care and caused damages when it recorded unauthorized liens on CP Ill's property. The Washington Supreme Court answered the Ninth Circuit's question "no," holding that title companies did not owe a duty of care to third parties in the recording of legal instruments. "Such a duty is contrary to Washington's policy and precedent, and other duty of care considerations." View "Centurion Props. III, LLC v. Chi. Title Ins. Co." on Justia Law