“A fool sees not the same tree that a wise man sees.” – William Blake. A plurality of the Court held that a tree located in the Cherry Creek State Park that existed before the State built camping facilities, but which is located next to, and whose branches hang over a campsite, is a “natural condition of unimproved property.” Relying extensively on a legislative report written about the CGIA, it held that if a tree is native pre-improvement, as in this case, the State has no duty to make it safe and prevent a branch from falling. Thus, the State is immune, without regard to the location of the tree. That approach, the Court held, balances the cost of maintenance and access to public land. Rosales v. Denver, which analyzed whether trees were public facilities, was overruled. The concurrence would focus on the text: the State is immune if a branch originating from “unimproved property” falls.
Category Archives: Property
Sara L. Burnett v. Colorado Department of Natural Resources, Division of Parks and Outdoor Recreation, 2015CO19 (March 23, 2015)
Atlantic Richfield Company v. Whiting Oil and Gas Corporation, f/k/a Equity Oil Company, 2014CO16 (March 3, 2014)
“A non-vested property interest is void unless it is certain to vest, if at all, within 21 years after the death of a life in being at the time the interest was created.” Common-law Rule Against Perpetuities (RAP). This case involves a nondonative commercial transaction dating back to 1968, amended in 1983 to include a non-exclusive revocable option. When the plaintiff sought to exercise the option in 2006, defendant claimed the RAP voided the option. The trial court, affirmed by the court of appeals, held that the option was enforceable as reformed under the Statutory RAP (USRAP). The Court affirmed on different grounds, holding that the RAP does not apply in commercial transactions; the rule against unreasonable restraint on alienation does. By holding that the RAP does not apply to revocable options, USRAP reformation was inapplicable. Plaintiff could exercise its option.
“Millennial Moms Focused on ‘Me’ Time, Study Says.” Time has value in a marriage; so it has value in a divorce. As a matter of first impression, the Court considered whether accrued time off earned during a marriage is marital “property” subject to equitable distribution. The trial court divided husband’s accrued time; the court of appeals reversed finding the value too uncertain to be deemed property and remanded. The Court affirmed on different grounds, examining two strains of thought: 1) leave as an alternative form of wages is not property; or 2) leave as deferred compensation and is property. The Court held that leave has value as time off or as cash, so if an enforceable right to be paid for leave exists, it is property. If its value can be reasonably ascertained it is divisible; if not, the time should be treated as an economic circumstance when equitably dividing property.
In re the Estate of Carol S. Gattis, deceased. Scott M. Gattis, Linda L. Spreitzer, and Amy G. Goeden, as Personal Representatives, v. John E. McNutt; Timothy A. McNutt; and Christopher L. Boortz, 2013COA145 (Nov. 7, 2013)
This is a case of how NOT to flip a house. Defendants bought a house, repaired damage caused by expansive soils, and then sold it to Plaintiffs. In the standardized Seller Property Disclosure form, Defendants claimed no knowledge of expansive soils. Plaintiffs brought a nondisclosure tort claim after the soils damaged the home. Defendants asserted the Economic Loss Rule as a defense, which was rejected by the trial court. As a matter of first impression, the court of appeals held the economic loss rule does not bar nondisclosure tort claims arising from a house built on expansive soils. First, home sellers owe home buyers an independent duty to disclose latent defects of which they are aware. Second, common law duties remain with standardized form contracts that do not set out a standard of care, limit rights to specific disclosures, or provide express remedies for nondisclosure.
“When you have no basis for an argument, abuse the [judge].” Cicero. After pleading guilty to criminal charges, an inmate sent his sentencing judge documents claiming the judge owed him $500 million. After the inmate filed a lien against the judge’s property, the judge sought and was granted an order declaring the lien spurious and invalid pursuant to CRS § 38-35-204 and CRCP 105.1. On appeal, the inmate claimed the court erred in finding the lien invalid, but did not provide any legal or factual support for its validity. Further, the inmate argued the judge failed to exhaust administrative remedies before challenging the lien. The court of appeals held that, with no supporting documentation for the lien, the court properly invalidated the lien. Further, the judge’s actions complied with statutory requirements, making administrative exhaustion unnecessary and impossible.
Rodney Asmussen and Linda Asmussen, For Themselves and As Representatives of a Class of Similarly Situated Persons v. United States, 2013CO54 (July 1, 2013)
“Utilizing the abandoned rail bed of the Great Western Railroad [GWR], the trail will preserve this historic right-of-way through the “rail banking” provisions of the federal Rails to Trails legislation.” – Great Western Trail Authority. This case questions whether a landowner whose property abuts the GWR is presumed to own property to the centerline of the rail bed. If so, creating the right-of-way could be a 5th Amendment taking. The Court held that the centerline presumption applies to railroad rights-of-way in Colorado and that it is a common law rule of conveyance, not a rule of evidence. But, the presumption applies only if a property owner can trace title to a grantor who owned the land underlying the right-of-way. The burden of proving title to land is on the person alleging ownership. Thus, owning adjacent land is not sufficient alone to apply to the centerline presumption.
Lynda S. Gibbons, Brent Wilson, and Gibbons-White, Inc., v. Gregory T. Ludlow, S. Reid Ludlow, and Jean E. Cowles, 2013CO49 (July 1, 2013)
“He who lives by the crystal ball soon learns to eat ground glass.” – Edgar R. Fiedler. In this case, the Court held that recovering damages for the bad advice of a transactional real estate broker requires proof of what would have happened but-for the bad advice. Analogizing to legal malpractice claims, the Court noted that a plaintiff must show either that he: 1) would have been able to obtain a “better deal” or 2) would have been better off with “no deal.” Both require proof that the professional’s negligent acts or omissions caused the client damages. Here, Plaintiff claimed lost profits as damages, requiring proof of either the amount of the profits that would have been earned or the fact that profits would have been earned. Plaintiff had an appraisal. The appraisal wasn’t proof a future sale of the property would have been better or different than the actual sale. Dismissal affirmed.
Dennis Shaw and First Horizon Home Loan Corporation, v. 17 West Mill St, LLC, 2013CO37 (June 24, 2013)
“Rather fail with honor than succeed by fraud.” – Sophocles. In this case the attorney for a borrower signed a request for a release of a lender’s deed of trust as “attorney for lender.” Lender later found out and sued, seeking to set aside the release because CRS 38-39-102 voids releases based on a “fraudulent request.” The Court upheld the trial court and reversed the court of appeals by holding that “fraudulent” means proof of actual fraud by a preponderance of the evidence, similar to common law fraud. It did so to fulfill the purpose of the statute: creating certainty, predictability, and relieving public trustees from a duty to inspect releases to determine validity. Here, borrower’s attorney signed for the lender because he had done so before and was under time pressures. It was negligent, not fraudulent. Thus, the later bona fide purchaser obtained title to the property.
Fidelity National Title Company, f/k/a Security Title Guaranty Company v. First American Title Insurance Company, 2013COA80 (May 23, 2013)
It was a $1million mistake. A title company (Agent) closed 2 loans, for 2 different banks, 2 months apart, assuring both banks that they were first position lienholders for the same property. The Agent’s underwriter eventually paid over $1 million to resolve the banks’ competing claims over foreclosure proceeds. Underwriter sued Agent, and won. Agent appealed, challenging the interpretation of their contract and the applicability of a statutory defense for reliance on a payoff statement. The court of appeals held: 1) Agent was an “escrow” because it “handled” money during the closings, 2) Agent couldn’t rely on a “payoff statement” under CRS 38-35-124.5, as it didn’t indicate the amounts owed to the actual creditor or holder of the debt, and 3) the contractual phrase “actual prejudice” meant “substantial detriment to the significant interests of the party.” Affirmed.
Jason L. Rodgers and James R. Hazel v. Board of County Commissioners of Summit County, 2013COA61 (April 25, 2013)
“Plaintiffs … a same-sex couple, primarily contend the County treated them differently from heterosexual couples when interpreting and enforcing [septic] regulations.” (Opinion). Plaintiffs sued. The trial court dismissed some claims and granted a partial directed verdict by removing certain “actions” from a single claim under 42 USC 1983 (1983). The court of appeals reversed in part, holding that under CRCP 50, a trial court can’t parse evidence supporting a single claim against a single defendant. But it affirmed the trial court’s dismissal of 1) an inverse condemnation claim (taking property through regulation) because the regulations did not rise to the level of a taking, 2) a discrimination claim not brought to the Civil Rights Commission as required, and 3) a direct constitutional challenge because 1983, CRCP 106, and CRS 24-10-118 provide alternate remedies.