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Category Archives: real estate law

My neighbor fenced in my backyard!


The rear of the Grossmans’ backyard had several trees and a culvert along the property line. When they put up a privacy fence in 1994, they didn’t enclose a nine-foot strip across the rear. The St. Johns moved into the house on the lot that shared the rear line of Grossmans’ lot in 2004, and the St. Johns began to maintain that nine-foot strip along with their own backyard, removing debris and even laying sod.

In 2008, the St. Johns fenced in their backyard and extended their fence across the nine-foot strip to a point five inches from the Grossmans’ fence. The Grossmans’ attorney sent a letter to the St. Johns, asking that they remove their fence and discontinue using the nine-foot strip.

The Grossmans sued the St. Johns for trespass, also asking for an injunction to force the St. Johns to remove the portion of the St. Johns’ fence on the Grossmans’ property. The St. Johns countersued, seeking reimbursement for their maintenance and repairs of the nine-foot strip.

Trespass under Missouri law, in a civil case, requires the plaintiff to prove unauthorized entry onto the property of another, regardless of damages and regardless of good faith, reasonable care, ignorance or mistake of law or fact.  Missouri law also allows the defense of consent of the complaining property owner, whose consent may be implied by custom, usage or conduct. Proof of damages resulting from the trespass is not required, but monetary damages can be recovered if proved.

At the trial, Mr. Grossman testified that he was aware that the St. Johns installed solar lights, plants and concrete benches on the nine-foot strip and admitted that it didn’t bother him. The St. Johns argued that this admission was proof of implied consent.

The trial court found for the St. Johns on the trespass charge, apparently accepting the argument of implied consent. The trial court also rejected the St. Johns’ counterclaim for reimbursement of their costs of repairs and maintenance. The Grossmans appealed; the St. Johns did not.

The Western District of the Missouri Court of Appeals in Grossman v. St. John reverses the trial court, stating that the judgment in favor of the St. Johns on the injunction and trespass claims was “against the weight of the evidence and was erroneous.”

In other words, there was inadequate evidence in the record of the trial to show that the Grossmans had consented to the erection of the fence, even though they may have initially consented to the use of the nine-foot strip by the St. Johns. That consent was revoked by the letter from Grossmans’ lawyer. By ignoring the undisputed revocation of consent, the judge made an error.

Please note that the use of Grossmans’ property by the St. Johns only lasted for four years. Had the use continued for 10 years, the St. Johns would not have been arguing consent–they would state that they used the property openly and without consent, thereby entitling them to title by adverse possession. The Grossmans’ suit was necessary to protect their property from such a claim.

Partition: not always an equal division of real estate


No house is big enough for two couples, my mother told me long ago. Especially when one couple pays for nearly everything.

When the non-paying couple asked the court to divide the house, a Missouri court left them out in the cold. They appealed, and the court’s decision in Hoit v. Rankin indicates Read the rest of this entry

Purchase option is assignable without consent, but there can still be a fight


The Hulls signed a real estate lease with a purchase option and put down a deposit of $56,000, which could be applied to the $198,500 purchase price, but would otherwise be non-refundable. The Hulls created a limited liability company (LLC) called Briar Road, and Briar Road attempted to exercise the purchase option. Stenger, the seller, refused, claiming that it had not approved the assignment of the purchase option by the Hulls to Briar Road.

What difference does the identity of the purchaser make? Read the rest of this entry

Real estate tax in the health care bill?


I received an email from a Realtor friend which included some strong rhetoric about the 3.8% tax on gains from the sale of residential real estate included in the new health care law, the Patient Protection and Affordable Health Care Act.

The point of the quoted rhetoric was to fuel voter sentiment against Democrats running for Congress in November by alleging that the bill is “set to screw the Read the rest of this entry

Who owns abandoned public roads in Missouri?


As Missouri’s public roads have been straightened, many odd kinks of roadway are left over, along with triangles of land between the old roads and the new roads. As we drive, we see these pieces of the old roads, sometimes serving as frontage roads along divided highways. In some cases, such as in McCullough v. Doss and Allen, the triangle on the west side of the new road was sold to McCullough, even though they might have been able to claim that at least the west half of the abandoned right-of-way of the old public road was theirs. Here’s an image from the Stone County Assessor’s maps:

The State of Missouri built Highway 39 in the mid-1950s, mainly along an old public road. At the point shown in the image, the severe dogleg Read the rest of this entry

The defunct HOA problem continues in Missouri, legislation needed urgently


Homeowner associations (HOAs) are given responsibility by recorded subdivision and condominium documents for maintaining, insuring and operating private communities’ common properties, such as streets, drinking water systems, sewer collection and treatment systems, and recreation facilities.

With many developers having abandoned projects before the HOA is operated by residents, the residents and other lot or unit owners (such as lenders that have foreclosed) are often faced with HOAs that cannot properly Read the rest of this entry

Arkansas’s high court says an affidavit of lost mortgage is notice of nothing

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You can ignore an affidavit of lost mortgage in Arkansas. Is this news you can use?

Maybe not, but there’s still a lesson in Wetzel v. Mortgage Elec. Registration Sys., Inc., a May 20, 2010 decision of the Arkansas Supreme Court.

The lesson is Read the rest of this entry

All owners are necessary parties in condominium litigation when class action fails

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The Villa Dorado condominium has 45 buildings, only nine of which have elevators. When the condominium association’s board assessed every unit owner for repairs to elevators, Epstein and Root protested. Their units were in buildings with no elevators, Read the rest of this entry

A real estate sub-agent can’t sue the seller for a commission


It’s a bitter lesson. A real estate agent spends money advertising and showing property. But when the deal closes, no commission is paid.

To prove the right to a commission, the agent must prove only two things:

  • that the agent was the “procuring cause of the sale”
  • that an employment relationship existed between the seller and the agent.

The case Deer Run Properties v Keys to the Lake illustrates that the second point Read the rest of this entry

City of Sullivan must charge everyone the same tap fee


This post has been removed because the Missouri Supreme Court’s opinion in City of Sullivan v. Sites overruled the Court of Appeals’ opinion in  City of Sullivan v. Sites and affirmed the trial court’s decision upholding different tap fees for different parts of town.

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