Articles Posted in Real Estate & Property Law

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Plaintiffs owned approximately 0.3 acres on the shore of Lake Waukewan in New Hampton. Per the town’s zoning ordinance, the property was subject to a twenty-foot side yard setback and a thirty-five-foot front setback along the road. It was also subject to a fifty-foot setback along the lake shore pursuant to the Shoreland Water Quality Protection Act. The property was sloped and contained a house, a deck, and three plastic, movable sheds used to store various home and recreational items. Plaintiffs sought to replace the plastic sheds with a ten-by-sixteen-foot permanent shed, which they planned to construct on the western side of the property. The proposal would have placed the permanent shed within the twenty-foot side setback. Accordingly, plaintiffs sought a variance from the side setback requirement. They appealed when the Superior Court upheld the denial of their requested variance by the Town of New Hampton Zoning Board of Adjustment (ZBA). They argued the proposed shed would not alter the essential character of the neighborhood because several other properties in the neighborhood had outbuildings within the setbacks. They maintained the existence of these outbuildings on neighboring properties, along with the lack of objection from the western abutters and the town fire chief, demonstrated the proposed shed posed no threat to the public health, safety, or welfare. The superior court concluded that the ZBA’s denial of plaintiffs’ variance on the public interest and spirit of the ordinance criteria was not unreasonable or unlawful. Given the evidence before the ZBA, and the considerable deference reflected in its standard of review, the New Hampshire Supreme Court could not find the superior court erred in concluding that the ZBA acted reasonably and lawfully in finding that plaintiffs’ requested variance would violate the spirit of the ordinance and would be contrary to the public interest. View "Perreault v. Town of New Hampton" on Justia Law

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Plaintiff Richard Polonsky appealed, and defendant Town of Bedford (Town) cross-appealed a superior court order on the parties’ cross-motions for summary judgment as to plaintiff’s petition for injunctive and declaratory relief and to quiet title to residential property that the Town acquired by tax deed in 2011. In 2008, plaintiff inherited residential property in Bedford New Hampshire that, at that time, was assessed at approximately $300,000. Because plaintiff failed to pay his real estate taxes in 2008, 2009, and 2010, tax liens were imposed on his property for each of those years. The Town notified plaintiff before each lien was imposed. In April 2011, the Town notified plaintiff that a tax deed was to be issued. In May 2011, a tax deed for the property was issued to the Town. Plaintiff continued to reside on the property without paying taxes. In 2013, plaintiff offered to pay back taxes, but requested the Town forgive additional charges. In July 2013, the Town rejected plaintiff’s request and decided to sell the property. In December 2013, the Town notified plaintiff of its decision to sell the property and of his right to repurchase it. Plaintiff received that notice, but did not act on it. In April 2015, the Town again notified plaintiff of its intent to sell the property and of his right to repurchase. Plaintiff proposed he purchase the property for only the amount he owed in taxes and that the Town waive the remaining amounts. The Town rejected the plaintiff’s proposal. The Town then asserted that plaintiff’s right to repurchase the property had terminated because more than three years had passed since the tax deed had been recorded. Shortly thereafter, plaintiff brought this lawsuit. On appeal, plaintiff argued the trial court erred in ruling that the Town’s failure to provide timely statutory notice to him of its July 2013 “offering for sale,” as required by RSA 80:89, I (2012), did not invalidate the tax deed. Plaintiff also argued the trial court erred by failing to find that the penalty the Town may recover pursuant to RSA 80:90, I(f) (2012) (amended 2016) constituted “double taxation” in violation of the State Constitution. In its cross-appeal, the Town argued the trial court misinterpreted the three-year period set forth in RSA 80:89, VII (2012) when it determined that, although the tax deed was recorded more than three years ago, plaintiff could bring a claim for any amount the Town recovered from the property’s eventual sale in excess of the outstanding taxes, interest, costs, and statutory penalty owed (“excess proceeds”). The New Hampshire Supreme Court affirmed the trial court’s ruling rejecting the plaintiff’s claim that the tax deed was invalid, reversed its ruling construing the statutes as permitting plaintiff to recover excess proceeds from any future sale of the property, and remanded for further proceedings. View "Polonsky v. Town of Bedford" on Justia Law

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Plaintiff Loon Valley Homeowner’s Association (the Association), appealed a superior court order denying its petition to quiet title to land owned by defendant Lewis Pollock and the decedent, Norman Wallack, based upon a claim of adverse possession. Pollock testified at trial that he and Wallack retained Lot 12 hoping to add it to the Association’s property to offset their loss. Pollock explained that after unsuccessfully seeking direct compensation from the members in exchange for adding Lot 12 to the Association, he and Wallack agreed to allow the members of the Association to use Lot 12 on the condition that the Association maintain the lot, pay the property taxes, and relocate the fence dividing Lots 11 and 12 to its current location, where it marked the approximate boundary between Lots 12 and 13. Following trial, the court found that the Association’s use of Lot 12 was permissive and that, even if the court were to assume that the Association’s use of Lot 12 was such that Pollock and Wallack should have known that the Association had repudiated their permission, it had failed to demonstrate that such use was exclusive for a twenty-year period. On appeal, the Association argued the trial court erred: (1) when it found “a permissive arrangement between Lewis Pollock and the Association, and thus that the Association’s use of Lot 12 was not adverse”; and (2) when it ruled that the Association “had not established that it had utilized Lot 12 exclusively” during the twenty-year prescriptive period. Finding no error, the New Hampshire Supreme Court affirmed the superior court. View "Loon Valley Homeowner's Association v. Pollock" on Justia Law

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Petitioner N. Miles Cook, III, appealed a Wetlands Council (Council) ruling upholding the decision of the New Hampshire Department of Environmental Services (DES) denying his request for a permit to reconstruct and extend his dock on the Piscataqua River. Because DES did not have the benefit of the New Hampshire Supreme Court’s interpretation of the term “need” as used in Env-Wt 302.01(a) and Env-Wt 302.04(a)(1) for determining whether an applicant has met the permit requirements, and because, as the Council noted, the central issue was whether petitioner “could justify the expanded dock proposal based on his ‘need’ to access navigable water on a more frequent basis than he currently experiences with the existing dock,” the Supreme Court vacated DES’s decision and remanded to the Council with instructions to remand to DES for further consideration in light of the definition the Court adopted for the purposes of this opinion. View "Appeal of N. Miles Cook, III" on Justia Law

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Plaintiff Slania Enterprises, Inc. appealed a superior court decision to grant defendant Appledore Medical Group, Inc.’s motion to dismiss as time-barred a petition to recover damages stemming from an alleged breach of a commercial real estate lease. In October 2012, Slania, as the lessor, and Appledore, as the lessee, entered into a commercial real estate lease for an initial fixed term that ended on April 30, 2015. However, Appledore never took possession of the premises. Appledore paid rent due through January 2013, but then stopped doing so. In March 2013, Appledore communicated to Slania that it wished to terminate the lease. On April 12, 2013, Slania notified Appledore that it was in default on its rental payments. Appledore did not pay. On April 22, 2013, at the expiration of a 10-day cure period, Slania notified Appledore that, pursuant to Section 13.1(b) of the lease, it was electing, as its remedy upon default, to “keep the lease in effect and recover rent and other charges due [from Appledore] less the amount [Slania] may recover by re[-]letting the premises.” Slania re-let the premises from February 2015 through the end of the initial term of the lease, April 2015, for a lesser monthly amount. Approximately one year later, Slania filed a breach of contract action against Appledore for $82,527.87 in damages, which included rent, late fees, and utility costs due from May 2013 through April 2015. Appledore moved to dismiss, asserting that because the lease was breached no later than April 22, 2013, the claim was barred by a three-year statute of limitations. Slania objected, arguing that the lease was an installment contract, and, therefore, the statute of limitations did not bar a suit to recover payments due within three years of the date the complaint was filed. The trial court granted Appledore’s motion to dismiss, ruling that, because “a real estate lease of the type involved here is not an installment contract as that term is contemplated in the statute of limitations context,” the so-called “installment contract rule,” under which the statute of limitations runs only against each installment when it becomes due, did not apply. The New Hampshire Supreme Court concluded commercial real estate leases did not fall outside the bounds of the installment contract rule, and reversed the trial court’s contrary ruling. In rejecting Slania’s assertion that it could elect to keep the lease in place and sue for breaches that occurred within three years of the date it filed suit, the trial court did not mention anticipatory repudiation or material breach. The Supreme Court found this case raised issues of first impression regarding the interplay of the installment contract rule, a party’s election of contractual remedies, and anticipatory repudiation or anticipatory breach. It did not appear that these issues were fully explored by the trial court; accordingly, the Supreme Court vacated the trial court’s ruling with respect to Slania’s argument that, under the terms of the lease, it could keep the lease in effect and bring an action to recover for breaches that occurred no more than three years before the date it filed this suit. The case was remanded for such further proceedings, as the trial court deemed necessary. View "Slania Enterprises, Inc. v. Appledore Medical Group, Inc." on Justia Law

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Defendant-landowner Carl Casagrande appealed a superior court order that granted summary judgment to plaintiff Town of Goshen. The issue before the trial court was whether a section of road abutting Casagrande’s property was an unmaintained town road, or whether, as Casagrande contended, it was private property because the residents of Goshen voted at a town meeting in 1891 to discontinue the road. After reviewing the record of the 1891 town meeting, including the language of the warrant article, the trial court concluded that the town had not voted to discontinue the road, and, therefore, the abutting road was a public highway. View "Town of Goshen v. Casagrande" on Justia Law

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Defendants Brad Balise (Brad), Jon Carpenter, and his mother, Winifred Carpenter, appealed a trial court order quieting title in favor of the plaintiffs Janet and Stanley Balise, and declaring plaintiffs had a right to use a discontinued portion of a road to access their property and install utilities to service it. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "Balise v. Balise" on Justia Law

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Homeowner-plaintiffs Michelle and Robert Russell appealed a superior court order denying their summary judgment motion and granting that of insurer-defendant NGM Insurance Company. On appeal, the homeowners argued the trial court erred when it determined that their homeowners’ insurance policy provided no coverage for the additional living expenses they incurred when they were unable to live in their home because of mold contamination. Finding no reversible error, the New Hampshire Supreme Court affirmed. View "Russell NGM Insurance Co." on Justia Law

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Plaintiffs Wayne and Ruth Ross, trustees of the Wayne Ross Revocable Trust and the Ruth Ross Revocable Trust, respectively, appealed a superior court order in favor of defendants Donald Ross and Rossview Farm, LLC (the LLC). Plaintiffs contested findings that the parties entered into a lease for the plaintiffs’ lifetimes and that they had no right to evict the defendants pursuant to RSA 540:2, II(d) or (e) (2007). The trial court found that plaintiffs conceded that a June 23, 2006 document satisfied the statute of frauds because, in their post-trial memorandum, plaintiffs explained their position that the June 23, 2006 document “is a writing signed by all the parties that states the terms of the parties’ agreement. This document satisfies the statute of frauds and governs their relationship.” The “clear” language of the June 23, 2006 document, plaintiffs posited, created a yearly lease. However, plaintiffs also argued in the post-trial memorandum that defendants’ introduction of parol evidence of the parties’ intent to create a perpetual lease violated the statute of frauds because “the intent of the parties to create a perpetual lease must be clear from the face of the document and there must be a document to satisfy the statute of frauds.” Thus, plaintiffs did not concede that the June 23, 2006 document satisfied the statute of frauds for all purposes; instead, they contended that it “satisfies the statute of frauds” if the document was read to create a yearly lease. The New Hampshire Supreme Court vacated and remanded, finding the trial court’s finding that plaintiffs conceded the issue lacked evidentiary support, and concluded plaintiffs did not waive their statute of frauds argument by concession. View "Ross v. Ross" on Justia Law

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Defendant Latvian Lutheran Exile Church of Boston and Vicinity Patrons, Inc. (Patrons), appealed a superior court order declaring that it did not have an easement to use a private road to access Lake Massasecum. Plaintiff Carolyn Carlson, Trustee of the Carolyn J. Carlson Living Trust (Carlson), cross-appealed the trial court’s denial of Carlson’s petition to quiet title. Because the New Hampshire Supreme Court found Carlson lacked standing to pursue both her actions, it affirmed the trial court’s ruling that she lacked standing on her petition to quiet title, vacated the trial court’s grant of declaratory relief, and remanded. View "Carlson v. Latvian Lutheran Exile Church of Boston" on Justia Law