Articles Posted in Real Estate & Property Law

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Plaintiff Condominiums at Lilac Lane Unit Owners’ Association (Lilac) appealed a superior court order granting summary judgment to defendants Monument Garden, LLC (Monument Garden) and Eastern Bank. The trial court determined that a residential development in Dover known as the Condominiums at Lilac Lane was not subject to the provisions of the Condominium Act RSA chapter 356-B (2009 & Supp. 2016), regulating “convertible land.” The New Hampshire Supreme Court agreed with defendants that the plain language of the Act contravenes Lilac’s assertion that “convertible land” and “expandable condominium” were the only means by which units may be built in the future after the condominium was created. As such, the Court affirmed the superior court’s order. View "Condominiums at Lilac Lane Unit Owners Assn. v. Monument Garden, LLC" on Justia Law

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Plaintiff segTEL, Inc. was a telecommunications company that owned and/or operated a fiber optic cable network throughout New Hampshire, including within the City of Nashua. It did not own any poles or conduits within the City, and did not have its own license from the City authorizing its occupation of the City’s rights of way. Instead, pursuant to pole attachment agreements with the utility providers, the plaintiff remitted a fee to the utility providers in exchange for the right to place its fiber optic cables on their poles and conduits. These pole attachment agreements did not require the plaintiff to pay property taxes assessed by the City. Having become aware of plaintiff’s use of the utility providers’ poles and conduits, the City in 2014 assessed plaintiff property taxes of $1,507.94 for its use of the City’s rights of way. Plaintiff applied for an abatement, which the City denied. Thereafter, plaintiff brought this action in superior court, seeking: (1) a declaratory judgment that the City was not entitled to impose the tax; and (2) to strike the City’s 2014 tax assessment. The trial court granted summary judgment to plaintiff, ruling that “[b]ecause [the plaintiff] has not entered into an agreement in which it consented to be taxed,” the City could not lawfully tax the plaintiff for its use and occupation of the City’s rights of way. The City appealed, and finding no reversible error in the trial court’s judgment, the New Hampshire Supreme Court affirmed. View "Segtel, Inc. v. City of Nashua" on Justia Law

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The New Hampshire Supreme Court affirmed an order of the New Hampshire Board of Tax and Land Appeals (BTLA) denying 77 of Public Service Company of New Hampshire's (d/b/a Eversource Energy (PSNH) 86 individual tax abatement appeals on property located in 31 municipalities for tax year 2011, and 55 abatement appeals for tax year 2012. The New Hampshire Public Utilities Commission (PUC) granted PSNH exclusive franchises to provide certain electricity services within its territory. A municipality’s selectmen appraise the value of the property located within the municipality, including utility property. For the appeals that it granted, the BTLA found that the municipal assessors acknowledged a material degree of overassessment of the property at issue. The BTLA noted that PSNH’s burden in a tax abatement appeal was to demonstrate that the municipal assessments were disproportionate.The BTLA found that PSNH had made only “very general assertions regarding regulation and its alleged impact on the market value of [PSNH’s] property.” It therefore concluded that PSNH had failed to provide sufficient probative evidence that the utility regulatory environment in which PSNH operated, considering both the benefits and burdens of such regulation, was so restrictive that any prospective purchaser would be limited to a return based upon net book value. Thus, merely identifying the presence of regulation that may impact the market value of property was insufficient. Based upon its review of the record, the Supreme Court agreed with the BTLA, and found that the BTLA's findings were supported by the record with respect to PSNH's remaining claims. View "Appeal of Public Service Company of New Hampshire d/b/a Eversource Energy" on Justia Law

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New Hampshire Electric Cooperative, Inc. (NHEC) filed tax abatement appeals to the Board of Tax and Land Appeals (BTLA) for 23 municipal assessments of its property that occurred in 2011 and 2012. The BTLA held a consolidated hearing over nine days between January and February 2015 regarding NHEC’s tax abatement appeals. During the hearing, NHEC presented expert witness testimony and an appraisal of NHEC’s property from George Lagassa, a certified general real estate appraiser and the owner of Mainstream Appraisal Associates, LLC. In his appraisals, Lagassa estimated the market value of NHEC’s property by reconciling the results of four valuation approaches: a sales comparison approach; an income approach, which estimated the value of NHEC’s property by capitalizing the company’s net operating income; a cost approach, which estimated the net book value (NBV) of NHEC’s property by calculating the original cost less book depreciation (OCLBD) of NHEC’s property; and a second cost approach, which estimated the value of NHEC’s property by calculating the reproduction cost new less depreciation (RCNLD) of NHEC’s property. NHEC appeals the BTLA order denying 16 of NHEC’s 23 individual tax abatement appeals regarding its property. The New Hampshire Supreme Court found no reversible error in the BTLA’s order and affirmed it. View "Appeal of New Hampshire Electric Cooperative, Inc." on Justia Law

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Plaintiff DirecTV, Inc. appealed a superior court decision denying a petition for property tax abatement for the tax years 2007, 2008, and 2009. The property at issue was located in New Hampton and used by DirecTV as a satellite uplink facility. On appeal, DirecTV argued that the trial court erred when it: (1) ruled that satellite antennas and batteries used to provide backup power constituted fixtures; and (2) determined the value of the property. The New Hampshire Supreme Court concluded after review that the antennas and batteries were not fixtures, and therefore, taxable as real estate. The Court reversed the superior court on that issue, vacated its decision on the valuation of the property, and remanded for further proceedings. View "DirecTV, Inc. v. Town of New Hampton" on Justia Law

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Plaintiff Fat Bullies Farm, LLC (Fat Bullies), and the counterclaim defendants, Donald Gould and Peter Simmons, appealed certain superior court findings and rulings made during the course of litigation with defendants Alan and Donna Perkins and Lori and Bret Devenport, involving the sale of a 3.1 acre horse farm in North Hampton known as Runnymede Farm. When the Devenports purchased the property in 1998, they promised to operate it as a horse farm in perpetuity, and to allow the former owner to maintain an office on site. Simmons told the Devenports that he was interested in purchasing the property. The Devenports told Simmons they would only sell if the buyer agreed to the horse farm and on site office conditions. Simmons spoke with Gould about purchasing the property jointly with the intent to develop and/or resell it. The two created Fat Bullies “for the purpose of acquiring real estate for development or resale.” After amendments to the purchase contract, the Devenports reiterated that they would sell the property only if Fat Bullies committed to operating it as a horse farm. Despite their intentions to develop the property, Simmons and Gould agreed. The parties executed a sales agreement. No payment had been made on the property; word got back to Lori Devenport that Simmons had talked to others in North Hampton about purchasing the farm. The Devenports rescinded the agreement, believing Simmons lied to them about promising to operate Runnymede as a horse farm. Fat Bullies invoked an option, but the Devenports refused to sell. In 2011, the Devenports sold Runnymede to the Perkinses. After trial, the jury returned a verdict in favor of the Devenports on Fat Bullies’ breach of contract claim, finding that Fat Bullies failed to prove the existence of a contract by a preponderance of the evidence, and a verdict in favor of Fat Bullies, Simmons, and Gould on the Devenports’ fraudulent inducement claim. The New Hampshire Supreme Court reversed the trial court with respect to a Consumer Protection Act violation decision; the Court reversed with respect to attorney fees related to that Act decision. The Court affirmed in all other respects, and remanded for further proceedings. View "Fat Bullies Farm, LLC v. Devenport" on Justia Law

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Petitioner Kadle Properties Revocable Realty Trust (Trust), challenged the dismissal of the Trust’s appeal to the New Hampshire Board of Tax and Land Appeals (BTLA), filed after respondent, the City of Keene (City), denied the Trust’s application for an educational use tax exemption. The Trust owned property in Keene that included an office building. A separate, for-profit corporation, Config Systems, Incorporated (Config Systems), rented a portion of the Trust’s office building, where it offered computer classes. The Trust did not own or operate Config Systems, but Daniel Kadle, in addition to serving as trustee for the Trust, was a beneficiary of the Trust and the sole shareholder of Config Systems. The Trust sought the exemption based upon Config Systems’s use of part of the property as a school. The Trust appealed the City’s denial of its request to the BTLA. During the BTLA hearing on the Trust’s appeal, the City moved to dismiss the appeal. The BTLA granted the City’s motion, reasoning that the property owner, the Trust, was not a school, and that Config Systems, the entity operating the school which the Trust claims qualified the property for an exemption, did not own the property. Finding no reversible error in that decision, the Supreme Court affirmed. View "Appeal of Kadle Properties Revocable Realty Trust" on Justia Law

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Plaintiff Robert Jesurum was a resident of Rye since 1990. Defendants WBTSCC Limited Partnership and William H. Binnie, trustee of the Harrison Irrevocable Trust, owned property located on Wentworth Road in Rye, the majority of which was used as a golf course. At issue in this case was a small, parabolic-shaped area on the northeastern corner of the defendants’ property, referred to by the trial court as “Sanders Point.” Wentworth Road abutted the property’s northern border. To the southeast, Sanders Point connected to Little Harbor Beach via a five-foot wide sandy walking path. Little Harbor Beach was on an inlet to the Atlantic Ocean and formed the southeastern border of the golf course. In the 1990s, usage of Sanders Point increased. Tensions between the public and the defendants rose concomitantly with the increase in the public’s use of Sanders Point. In 2013, plaintiff brought this action seeking, among other things, a declaratory judgment that both the plaintiff and the public had the right to a prescriptive easement over Sanders Point for parking and to access Little Harbor Beach. Both sides moved for summary judgment. The trial court granted the plaintiff’s motion for summary judgment and denied defendants’ motion, ruling that the public possessed a prescriptive easement over Sanders Point. The trial court did not, however, determine the scope of the public’s easement rights because the parties had not briefed that issue. Instead, the court scheduled a hearing on the “scope” issue, which was held in June 2015. Following the hearing, the court ruled that the public was entitled to use Sanders Point to park and to access Little Harbor Beach, subject to certain restrictions. Defendants appealed. The Supreme Court affirmed in part and reversed in part, finding that the trial court erred in its award of attorney’s fees to plaintiff. The Court affirmed the trial court in all other respects. View "Jesurum v. WBTSCC, L.P." on Justia Law

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Petitioner, the New Hampshire Housing Finance Authority (NHHFA), appealed a superior court decision to grant summary judgment in favor of respondent Pinewood Estates Condominium Association (Pinewood), and to award attorney’s fees to Pinewood. The trial court ruled that, pursuant to Pinewood’s condominium declaration, NHHFA was responsible for paying condominium assessments that were accrued by the previous owner of a unit NHHFA purchased at a foreclosure sale, and that Pinewood was not obligated to provide common services to the unit until all assessments were paid. Because the Supreme Court concluded that the Condominium Act, RSA chapter 356-B (2009 & Supp. 2015), operated to bar Pinewood’s claim for unpaid pre-foreclosure condominium assessments, it reversed and remanded. View "New Hampshire Housing Finance Authority v. Pinewood Estates Condominium Association" on Justia Law

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Plaintiff Maher Mahmoud appealed a superior court order granting defendants Winwin Properties, LLC (Winwin), Gary T. Shulman, Anita S. Shulman, Aaron Katz, and Jeremy Gavin's motion for summary judgment, and denying plaintiff’s cross-motion for summary judgment. Plaintiff acquired title to an approximately 17-acre parcel of land in Thornton, and subsequently received subdivision approval from the Thornton Planning Board to create Lot 1, a 1.06-acre parcel; he recorded the subdivision as Plan 11808 at the Grafton County Registry of Deeds (registry of deeds). In July 2006, plaintiff mortgaged Lot 1 to Mortgage Electronic Registration Systems, Inc. (MERS) by mortgage deed, recorded in the registry of deeds. The mortgage deed described the property as Lot 1 as depicted on Plan 11808. Plaintiff received approval from the Thornton Planning Board to further subdivide the 17-acre parcel into a total of eight lots; he recorded the subdivision as Plan 12600 at the registry of deeds. As part of this subdivision approval, the southerly boundary of Lot 1 was relocated. Plan 12600 showed both the original Lot 1 lot line and the new southerly lot line, and shows Lot 1 as consisting of 2.40 acres. Plaintiff ultimately defaulted on his loan, and MERS foreclosed on Lot 1. MERS conveyed Lot 1, pursuant to a foreclosure deed under power of sale to defendant Bank of New York, as Trustee for the Certificate Holders CWABS, Inc. Asset-Backed Certificates, Series 2006-15 (Bank of New York). Then Bank of New York conveyed Lot 1 to Winwin by quitclaim deed. The deed from the Bank of New York to Winwin included the same description as that contained in the mortgage deed, with the additional phrase, “[s]ubject to any and all matters, including setbacks if any, as shown on Plan No. 11808 and Plan No. 12600 recorded in [the registry of deeds].” Winwin conveyed the property in May 2009 to defendants Gary and Anita Shulman, and the Shulmans conveyed the property in April 2014 to defendants Aaron Katz and Jeremy Gavin. In 2015, plaintiff sued defendants, asserting several claims relating to the size of Lot 1. Winwin moved for summary judgment on plaintiff’s petition to quiet title to Lot 1, asserting that it had previously held record title to the lot, which included the approximately 1.34 acres added to Lot 1 by the lot line adjustment (the disputed land), because the description of the property in the mortgage deed included any additions to the land. After review, the New Hampshire Supreme Court found no reversible error in the superior court's grant of defendants' summary judgment, and affirmed. View "Mahmoud v. Town of Thornton" on Justia Law