Articles Posted in Real Estate & Property Law

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The Supreme Court reversed the district court order granting summary judgment in favor of Heritage Bank in this action for forcible entry and detainer against James Gabel, C.J. Land & Cattle, L.P., and MCGFF, LLC after James failed to pay rent on farmland pursuant to a lease agreement. In its order, the district court concluded that Heritage Bank was the trustee of the Charles L. Gabel Revocable Trust, that Defendants did not timely deliver the 2015 crop payment to the trustee, that Defendants had notice they were not in compliance with the terms of the lease, and that the defect was not cured within a reasonable amount of time. The Supreme Court reversed, holding (1) the record supported the district court’s finding that Heritage Bank was the trustee and had standing to bring this action; but (2) genuine issues of material fact remained regarding the other issues raised by Defendants, precluding summary judgment. View "Heritage Bank v. Gabel" on Justia Law

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The Supreme Court reversed the order of the Tax Equalization and Review Commission (TERC) affirming the decision of the Custer County Assessor regarding the 2012 taxable value of Donald V. Cain, Jr.’s agricultural property. On appeal, Cain argued, among other things, that the TERC violated his due process rights by not permitting him to argue how the preponderance of the evidence standard of proof applied to the adduced evidence. The court held (1) Cain waived the due process rights applicable in Liljestrand v. Dell Enterprises, 842 N.W.2d 575 (2014); and (2) TERC erred in affirming the Assessor’s valuations of Cain’s property for the 2012 tax year. View "Cain v. Custer County Board of Equalization" on Justia Law

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The Supreme Court reversed the order of the Tax Equalization and Review Commission (TERC) affirming the decision of the Custer County Assessor regarding the 2012 taxable value of Donald V. Cain, Jr.’s agricultural property. On appeal, Cain argued, among other things, that the TERC violated his due process rights by not permitting him to argue how the preponderance of the evidence standard of proof applied to the adduced evidence. The court held (1) Cain waived the due process rights applicable in Liljestrand v. Dell Enterprises, 842 N.W.2d 575 (2014); and (2) TERC erred in affirming the Assessor’s valuations of Cain’s property for the 2012 tax year. View "Cain v. Custer County Board of Equalization" on Justia Law

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Royal filed a quiet title action against his predecessors in interest and against Omaha Public Power District (OPPD) alleging fee title ownership of land along the railroad right-of-way passing through his Otoe County property by adverse possession. OPPD counterclaimed, alleging that it had acquired fee simple title to that same land, also by adverse possession. The district court granted Royal default judgment as to his predecessors, but following a trial, denied both Royal’s and OPPD’s claims of title. The Nebraska Supreme Court vacated the entry of default as “leading to an illogical result” in extinguishing the rights of the former owners. The court affirmed as to OPPD, which owns an easement over the right-of-way and not a fee simple. That easement was obtained in 1869; its uses are permissive and a direct or incidental use associated with the operation of a rail line. Under Nebraska law, a permissive use is not adverse and cannot ripen into ownership by adverse possession. The court also affirmed as to Royal. While expert testimony indicated that some of the land had been used for farming, it did not support the conclusion that it was done for a continuous period sufficient to prove adverse possession. Royal acknowledged that he had not continuously lived on the property and had not continuously assisted with its farming. View "Royal v. McKee" on Justia Law

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In 1998, the Laus bought land from Walters, who financed the purchase. An attorney, chosen by Walters, drafted the documents. The deed of trust included a right of first refusal that ended once the financing was paid. At closing, the warranty deed stated: “No sale ... shall be consummated without giving at least 30 days written notice of the terms to Grantor. Grantor shall have the right to buy the lot on the same terms.” In 2007, the Laus finished paying on the note. Walters executed a deed of reconveyance. Around 2013, the Laus decided to sell the land with their trailer home and contacted a real estate agent, who told Walters about the listing. Walters did not mention his right of first refusal. The Laus entered a purchase agreement with Sporer. Neither that agreement nor the Laus’ affidavit regarding debts, liens, and adverse claims mentioned the right of first refusal. The Laus conveyed the property to the Sporers by warranty deed, which was recorded. Walters sued. The court granted the Laus and the Sporers summary judgment, holding that the deed, which was not signed by the Laus, did not satisfy the statute of frauds, Neb. Rev. Stat. 36-105. The Nebraska Supreme Court reversed, holding that a right of first refusal in a deed is an enforceable agreement under the statute of frauds upon the acceptance of the deed. View "Walters v. Sporer" on Justia Law

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The Supreme Court affirmed in part and reversed in part the judgment of the district court dismissing Appellants’ complaint without leave to amend. The complaint stemmed from Nebraska Department of Natural Resources’s (DNR) issuance of closing notices to holders of surface water permits, which barred Appellants from using the surface waters of the Republican River and its tributaries to irrigate their crops. Appellants alleged claims for relief under 42 U.S.C. 1983 and that they had been subject to an inverse condemnation. Appellants also alleged that their due process rights had been violated and sought restitution. The district court dismissed the amended complaint pursuant to Neb. Rev. Stat. 6-1112(b)(6) without leave to amend. The Supreme Court held (1) Appellants failed to state a claim for inverse condemnation; but (2) the district court erred in failing to find that it lacked subject matter jurisdiction over Appellants’ claims for relief under 42 U.S.C. 1983, due process, and restitution. The court remanded with directions to dismiss for lack of subject matter jurisdiction those claims barred by sovereign immunity. View "Cappel v. State" on Justia Law

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The Supreme Court reversed the judgment of the district court decreeing that a residence be repainted from a blue color to an earth tone after the homeowners association sued to enforce restrictive covenants. The Homeowners appealed, arguing that the plain language of the restrictive covenants did not control the color of repainting. The Supreme Court agreed, holding (1) the restrictive covenants at issue were not ambiguous and did not apply to the Homeowners’ repainting of their residence; and (2) the Homeowners did not, therefore, violate any restrictive covenants when they repainted their residence without first seeking and acquiring approval from the developer. View "Estates at Prairie Ridge Homeowners Ass’n v. Korth" on Justia Law

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The Supreme Court affirmed the order of the Nebraska Tax Equalization and Review Commission (TERC), which affirmed the valuation of the Washington County Board of Equalization of two parcels of land owned by William Burdess located in Washington County. Both parcels consisted of agricultural land, a homesite, a secondary building, and wasteland. Burdess protested the 2013 through 2016 assessed values of the two parcels, arguing that the wasteland and homesite acres were not properly valued. The TERC affirmed the Board’s decision as to the value of the wasteland and homesite acres. The Supreme Court affirmed, holding that the TERC did not err in its valuation of the wasteland and in its valuation of the homesite acres associated with the property. View "Burdess v. Washington County Board of Equalization" on Justia Law

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The Supreme Court affirmed the district court’s order denying an intervener’s motion to intervene in her own behalf in this complaint alleging breach of a lease. Streck, Inc. filed a complaint against the Ryan Family, LLC alleging that the LLC breached a lease agreement containing an option to purchase real property and seeking specific performance. After the LLC responded, a member of the LLC moved to intervene in her own behalf and on behalf of the LLC. The district court denied the motion. The Supreme Court affirmed, holding that the intervenor failed to allege a direct and legal interest sufficient to support intervention in the litigation between the LLC and Streck. View "Streck, Inc. v. Ryan Family, LLC" on Justia Law

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The right of an intervenor to offer evidence in a quiet title action is not restricted by the lis pendens statute. After Jacobsen Land and Cattle Company and the State entered into a purchase agreement for the sale of a parcel of Jacobsen’s land that included property fenced in with Terry Brown’s property, Brown filed and recorded a lis pendens with the county register of deeds. Brown then filed a quiet title action against Jacobsen, alleging ownership by adverse possession of the disputed property. The State moved for leave to intervene in the quiet title action. The court allowed the State to intervene. At trial, the court concluded that the State’s status as a subsequent purchaser under the lis pendens statute prevented the State from presenting evidence related to the adverse possession claim. After a trial, the court quieted title to the disputed property in Brown as against Jacobsen and any other entities claiming any interest therein. The Supreme Court reversed, holding that because the State was not permitted to offer evidence at trial, the matter remanded for a new trial. View "Brown v. Jacobsen Land & Cattle Co." on Justia Law