♪This land is your land, it’s not my land, I’m not a landowner, so you can’t sue me… Plaintiff tripped and fell on common area sidewalk outside a medical campus. She sued the main tenant. Under the Premises Liability Act (PLA), only “landowners” could be liable for injuries on their land. There are two kinds of landowners: those in possession of the land, and those who are legally responsible for conditions on the land. This case addressed the second category and limited its scope. Here, under its lease, the defendant could not exclude anyone from occupying the land, was not responsible for maintenance or the condition of the sidewalk, and was not conducting any activities on the sidewalk; it also did not assume a duty to repair the sidewalk or create the condition that caused the injuries. Under these facts, the Court held the commercial tenant was not a landowner.
Tag Archives: Real Property
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.
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.
CapitalValue Advisors, LLC v. K2D, Inc., d/b/a Colorado Premium Foods; Kevin LaFleur; Don Babcock; and Triton Capital Partners, Ltd., 2013 COA 125 (August 15, 2013)
It is the promise, not the paper it’s written on, that makes a contract. Plaintiff is a capital advisory firm. It had an agreement with Defendants to help them find financing. Defendants later contracted with another firm that did secure financing for Defendants. Plaintiff sought to enforce a provision that entitled it to 4.5% of the financed amount. Defendants argued the agreement was void because two of three provisions violated CRS 12-61- 101 (brokerage laws) and CRS 11-51-604 (securities laws), and thus the whole agreement was void. The trial court agreed; the court of appeals did not. Looking to the number of promises in the agreement, the court held that, in essence, each provision was its own “contract” even though they were all memorialized in the same agreement. The two unlawful provisions were severed so the agreement was not void, and judgment for Defendants was reversed.
Mid Valley Real Estate Solutions V, LLC, v. Hepworth-Pawlak Geotechnical, Inc.; Steve Pawlak; Daniel Hardin; and S K Peightal Engineers, Ltd., 2013COA119 (August 1, 2013)
Soils swelled, cracking substructure; single-asset subsidiary sues. Residential homebuilders owe an independent duty to homeowners to build a home with reasonable care. In this CAR 4.2 interlocutory appeal, Defendant homebuilders argued that the economic loss rule should prevent a corporate subsidiary of a bank from bringing tort claims that a natural-person homeowner could bring. Rejecting each of Defendants’ arguments, the court of appeals held that the independent duty owed by homebuilders announced in Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041(Colo. 1983) also prevents the economic loss rule from barring a corporate-plaintiff’s construction defect claims. A homebuilder’s duty of care is owed to any subsequent owner of a house because the duty arises from the residential nature of the project, not the nature of the homeowner (corporate or otherwise).
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.