The Pennsylvania Supreme Court held that a Philadelphia homeowner was not entitled to attorneys’ fees under a PA consumer protection law because filing affirmative defenses doesn’t qualify as filing an “action” under the law. In Bayview Loan Servicing LLC v. Rodger Lindsay, 15 EAP 2017, in response to a foreclosure complaint, a borrower alleged that the lender violated PA’s Loan Interest and Protection Law, also known as Act 6. The lender subsequently withdrew the complaint. The borrower sought a reimbursement of his legal fees. The Court rejected that request holding that “An affirmative defense is not an action, but rather is the statement of new facts and arguments that, if true, will defeat a plaintiff’s action.”
The Appraisal Institute reported that 21 pieces of legislation affecting the valuation profession are pending in 14 states. A list can be found at https://www.appraisalinstitute.org/advocacy/washington-report/washington-report-state-news-current-issue/#15
The House Financial Services Committee recently passed legislation exempting appraisers from having to conduct evaluations in accordance with the Uniform Standards of Professional Appraisal Practice for loans under $250,000 that were held in a portfolio for three years. Appraisals are not required for loans of $250,000 or less, but federal bank regulatory policy requires lenders to obtain an evaluation to understand the collateral risk involved with the loan. HR 3221 is intended to create greater flexibility for lenders.
The PA Commonwealth Court recently held that a claim of adverse possession could be brought against a municipality when the municipality’s only use of the property during the statutory period was to hold the property for possible future sale. In City of Philadelphia v. Galdo, the City of Philadelphia obtained title to a property by condemnation in 1974. The City has not physically occupied or provided any maintenance of the Property since the late 1970s. The City filed a complaint against Galdo – the current owner of the property – for continuing trespass, permanent trespass, and ejectment, and Galdo filed a counterclaim to quiet title, claiming ownership by adverse possession.
The trial court found in favor of the City and ordered Galdo ejected from the disputed property. The trial court further determined that Galdo could not sustain a claim for adverse possession against the City because the Property was devoted to public use.
The Commonwealth Court, in a 2-1 decision, reversed the trial court finding that Galdo could bring a claim for adverse possession. The Court explained:
The City does not provide any analogous obligation imposed by law or evidence of any public use of the Property to justify holding and neglecting it for decades. Furthermore, were we to determine that a municipality that condemns and holds previously private property for possible future sale did so for a public use, we would essentially hold that municipalities could institute a taking of private property for a land bank, keeping the property until the market provides a considerable profit upon its sale. Such a holding would be detrimental to private property rights. The City is not, therefore, immune from Galdo’s counterclaim for adverse possession because it did not hold the Property pursuant to a legal obligation, or for public use.
The US Supreme Court issued its Kelo eminent domain case in 2005. That case held that it is not necessarily unconstitutional to take private property for another private entity to use. Now the subject of that case is the subject of a new movie. In Little Pink House, the movie centers on Suzette Kelo – the first named plaintiff in the case and describes her fight to save her house from eminent domain. David Crosby also added music to the movie.
The North Carolina Supreme Court has held that real estate brokers may legally testify regarding the fair market value of real property in condemnation cases. In NCDOT v. Mission Battleground Leasco, LLC, the condemnee attempted to offer the testimony of a licensed real estate broker as to the property’s fair market value . The NCDOT argued against allowing the broker’s testimony based upon state law that says licensed real estate brokers are only allowed to provide opinions of the “probable selling or leasing price” of real property. NCDOT argued that a state-certified appraiser is the only party legally allowed to estimate the fair market value of real property.
The trial court agreed with the NCDOT and excluded the broker’s testimony. The Court of Appeals unanimously affirmed the trial court’s decision. On appeal, the NC Supreme Court stated that the authority allowing experts to testify is found in the state’s Rules of Evidence, and not in a statute such as the one that allows licensed real estate brokers to offer broker price opinions and comparative market analyses. The court also stated, “Any person who can qualify as an expert under that standard . . . , can testify without having to invoke any other source of authority. Meeting that standard is both necessary and sufficient.”
A New Jersey appellate Court on Monday upheld a $4.4 million valuation of a parking lot condemned by the city of Hoboken. In Ponte Equities Inc. et al. v. City of Hoboken, the property owners sought additional damages claiming that the city lowered the market value of the 1-acre lot before taking it for a park. They argued that the valuation date should have been earlier due to these alleged actions. The court rejected the argument and held that there was insufficient evidence that the city “directly, unequivocally and immediately stimulate[d] an upward or downward fluctuation in value and which is directly attributable to a future condemnation,” the opinion stated.
A NJ appellate court ruled that the state’s Sports and Exposition Authority had the right to use eminent domain to acquire a landfill to continue solid waste disposal there. The Court held that the New Jersey Sports and Exposition Authority could use eminent domain to acquire the Keegan landfill. The agency also was not obligated to honor the terms of a prior agreement with the town of Kearny to turn the landfill into a public recreation space, dismissing the municipality’s allegations that the agency violated the U.S. Constitution’s contract clause. “NJSEA did not violate the Contract Clause as it was duly authorized to use eminent domain to condemn the landfill,” the decision states. “[I]t exercised that authority in furtherance of one of its stated purposes; and eminent domain is an essential attribute of state sovereignty that cannot be contracted away.” The case is New Jersey Sports and Exposition Authority v. Town of Kearny et al., case number A-5152-15T1, in the Superior Court of New Jersey Appellate Division.
A New Mexico utility has filed a petition asking the U.S. Supreme Court to hear an appeal of a decision precluding it from condemning land for a power line because the Navajo Nation held an interest in that property. The Tenth Circuit Court of Appeals held there is no federal law permitting tribal lands to be condemned. That Court affirmed a lower court’s decision.
The Public Service Co. of New Mexico, also known as PNM, told the Supreme Court in a Nov. 20 petition that the ruling threatens the national power grid by effectively blocking Congress’ authorization of condemnation of allotted tribal lands. “In sum, the increasing need for condemnation to maintain and extend critical infrastructure will converge with the increasing unavailability of condemnation, and thus create a major problem for utilities and the public,” the company said.
The Federal Reserve Board has issued a statement providing for temporary exception to appraisal requirements in hurricane areas affected by severe storms and flooding related to Hurricanes Harvey, Irma, and Maria. Below is that statement:
Responding to widespread damage caused by Hurricanes Harvey, Irma, and Maria, four federal financial institution regulatory agencies today took action to facilitate the recovery process by temporarily easing appraisal requirements for real estate-related financial transactions in areas declared to be a major disaster.
The agencies will not require financial institutions to obtain appraisals for affected transactions (1) if the properties involved are located in areas declared major disasters; (2) if there are binding commitments to fund the transactions within 36 months of the date the areas were declared major disasters, and (3) if the value of the real properties support the institutions’ decisions to enter into the transactions.
The exceptions apply to transactions in areas of Florida, Georgia, Puerto Rico, Texas, and the U.S. Virgin Islands and expire three years after the date the president declared each area a major disaster. The exceptions are being made under the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) and its implementing regulations.
Financial institutions that use the appraisal exception must maintain information estimating the collateral’s value that sufficiently supports their credit decision to enter into the transaction. The agencies will monitor institutions’ real estate lending practices to ensure the transactions are being originated in a safe and sound banking manner.