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The Inheritance

Tuesday, May 31st, 2011

Where there’s a will, there’s a way.

The former home of Amanda Jones

ATLANTA, GA–For many years until her death in 2005, this was the home of Amanda Jones.

Among her close relations, Ms. Jones had a niece named Lillie Mae Walker. In 1976, Ms. Walker came to live with Ms. Jones. Later, in 1994, Ms. Walker’s daughter, Laurlene Riggins, also moved in. Ms. Riggins provided care for Ms. Jones, who was then 90, and Ms. Walker, then 72.

In 1995, Ms. Jones signed a Last Will and Testament giving a life estate in the property to Ms. Walker, with the remainder interest going to Ms. Riggins.

Ms. Jones had a stepson, named Eugene. In June 2003, she signed a different Last Will and Testament in which she bequeathed the property to Eugene. But then, in October 2003, Ms. Jones signed yet another Last Will and Testament, revoking all previous wills and again bequeathing the property to Ms. Walker as to a life estate, with the remainder going to Ms. Riggins.

Ms. Jones died in April 2005. After her death, Ms. Walker and Ms. Riggins continued to live in the home–but they neglected to file the October 2003 will for probate.

Enter Ellene Jones, Eugene’s wife. In May 2005, Ellene filed the June 2003 will for probate. Without notice to Ms. Walker or Ms. Riggins, the Probate Court named Ellene executrix of Ms. Jones’ estate and, in July 2005, Ellene executed a deed transferring the ‘free and clear’ property to Eugene.

Eugene promptly mortgaged the property, giving a security deed (akin to a deed of trust) to Ameriquest, for $95,500, in August 2005. Ameriquest got a drive-by inspection, never speaking to residents Walker and Riggins.

Ms. Riggins learned of the mortgage in mid-2006, after getting a mortgage-related notice in the mail followed by telephone calls, but Eugene denied any knowledge of it.

So Ms. Riggins got a lawyer, and filed the October 2003 will for probate. The Probate Court revoked Ellene’s appointment, and approved the October 2003 will as Ms. Jones’ true Last Will and Testament. Ms. Riggins was made the new personal representative of the estate, whereupon she deeded property to herself and Ms. Walker.

The Supreme Court of Georgia building

The stage was set for a legal battle between the heirs and the lender (now Deutsche Bank). The lender sued to quiet title, and the trial court ruled for the lender. The heirs appealed.

The Supreme Court of Georgia affirmed the trial court decision. The high court explained that, under Georgia statutes, an innocent purchaser of property from an ‘apparent’ heir of a deceased person is protected “as against unrecorded liens or conveyances.”

The Court reasoned that the lender did not have “actual notice” of the true heirs’ interests because Walker and Riggins had not opened a probate at the time the loan was made. And, the Court said, the lender would not be charged with knowledge it could have gained from parties in possession, but instead acted reasonably in relying on what Eugene told them–which was, “momma…made the will to me” but Ms. Walker “is supposed to live there until she dies.”

The Court concluded, “Ameriquest’s failure to inquire further regarding Walker’s status in the house does not show a lack of good faith.”

Moral: In light of this harsh result, seems the Georgia legislature should do some work on its statutes.

But the real moral here is that anyone with an interest in property under a will should see that the will is promptly probated. Failing to act is risky business.

The case is Riggins v. Deutsche Bank, 708 S.E.2d 266, 288 Ga. 850 (Ga. 2011).

Coming to Terms

Monday, May 2nd, 2011

When details are neglected, fate comes out to play.

SOUTHAVEN, MS–Janet Wright, a widow, lived with her daughter Patricia and son-in-law, James O’Daniel. Janet wanted a home of her own, and the three of them talked about building a house together.

Details, details: The Southaven property

Janet bought a lot in Southaven, a suburb of Memphis, and held title with Patricia as joint tenants with a right of survivorship. Then, Janet, Patricia and James contracted to build a 5,200 square foot home on the lot, for an estimated $440,000.

Janet intended to contribute $200,000 to construction, but the work went over budget and she paid another $200,000. Having advanced $400,000, Janet approached Patricia and James about getting a construction loan to finish the work.

In March 2003, Janet, Patricia and James got a construction loan, secured by a mortgage against the Southaven property. The construction loan had to be paid off when the work was completed.

A few months later the work was completed and Patricia and James arranged a permanent loan to pay off the construction loan. Since this loan would be their contribution to the asset, it was agreed only Patricia and James would be the borrowers on the permanent loan.

The new lender, National City Mortgage, required a mortgage to secure the loan. The lender instructed that the property title be vested in Patricia and James so that the new mortgage would have first priority, and encumber the entire ownership.

So Janet and Patricia signed a deed conveying the property to Patricia and James, and the loan was ready for closing.

The closing was handled by a law firm where James’s mother was employed. With Patricia and James’s agreement, Janet instructed James’s mother to return Janet’s name to the property title after the loan was closed.

The loan closed and another deed was recorded conveying the property from Patricia and James to Janet, Patricia and James, as joint tenants with right of survivorship.

When she got a copy of the latest deed, Janet thought there’d been a mistake. It was, after all, her intention to vest the property in herself and Patricia, as joint tenants, without James being on the title at all.

So Janet contacted her own attorney, who advised her to have a real estate attorney correct the error. But Janet didn’t follow the advice, and neither did she raise the issue with Patricia and James. Then, of course, Patricia filed for divorce.

With Patricia and James divorcing, and James claiming a one-third interest in the property, Janet decided to file a lawsuit to straighten things out.

De Soto County Courthouse, at Hernando, Mississippi

Janet sued James for a judicial declaration that his interest in the property should be subject to a constructive trust or an equitable lien in favor of Janet. James filed a defense.

At trial, Janet testified it was always her intention to own the property 50-50 with Patricia. If she died, she wanted Patricia to own the property outright. Patricia testified the parties never discussed specific ownership interests in the property. James’s mother said she was told only that Janet’s name should be “added” to the title, with nothing said about James.

The trial court ruled in favor of James, mainly holding there was insufficient evidence to impose a constructive trust. Janet appealed.

The Court of Appeals affirmed, agreeing there was insufficient evidence to support Janet’s complaint.

The Court said Janet is not entitled to a constructive trust or an equitable lien because there was no evidence of fraud, duress or unconscionable conduct. In other words, James didn’t do anything wrong. Likewise, the Court would not cancel the deed for mutual mistake, because a mistake (if any there was) was Janet’s alone.

Moral: Mere intentions hold no sway in real estate matters. Any supposed real property interest should be reduced to writing. Otherwise, it probably can’t be enforced if challenged. In fact, our “statute of frauds,” a rule inherited from English common law, generally invalidates unwritten agreements as to real property interests. And, every state has some version of the statute of frauds.

Judges don’t like to re-write contracts, or deeds.

The case is Wright v. O’Daniel, 58 So.3d 694 (Miss. App. 2011).

Premises Liability / Earthquake

Saturday, January 29th, 2011

The Acorn Building, reduced to rubble

Who’s to blame for a natural disaster?

PASO ROBLES, CA–On December 22, 2003, around 11:00 a.m., a 6.5 magnitude earthquake struck near San Simeon off the California coast.

The small town of Paso Robles, 25 miles inland, was hardest hit. Its historic downtown saw many injuries and extensive damage.

There were two fatalities. Marilyn Zafuto, 55, and Jennifer Myrick, 19, died as they fled the shaking in Ann’s Dress Shop. When they reached the sidewalk, the building collapsed on them.

The collapsed building had been a local landmark. Built in 1892, it was known as the “Acorn Building” for its distinctive clock tower and acorn-shaped roof line.

Aerial view of the collapsed building

The Acorn Building was owned by the Mastagni family. The elder Mastagnis, Armand and Mary, married in 1946 and raised three childrena as he worked as a dairyman and nurseryman and she ran a dress shop. They acquired the Acorn Building in 1973.

Armand and Mary managed the building together until 1995, when Armand suffered a series of strokes. As Mary took on more responsibilities, the couple established a family trust and transfered the building into the trust. Later, they transfered a 3% interest in the building into a separate trust set up for their three adult children. After Armand died in 1997, Mary became sole manager of the building and signed leases both on behalf of her family trust and on behalf of the children’s trust.

These details of the building’s ownership are of consequence because, when their survivors sued for wrongful death of Zafuto and Myrick, plaintiffs sued Mary, individually, and all the trustees (Mary and the three children).

At trial, plaintiffs argued that defendants were negligent in failing to perform seismic retrofitting of the 1892 brick and mortar building. Beginning in 1989, the city had inventoried unreinforced masonry buildings under its jurisdiction. The city identified the Acorn Building as potentially hazardous and sent a notice to the owners in December 1989.

Later, in 1992, the city passed an ordinance requiring owners of unreinforced masonry buildings to retrofit them to comply with earthquake safety standards. Under the ordinance an owner would have 15 years from the date of official notice to complete the retrofitting. The Mastagnis got their notice in November 1993. The city amended the ordinance in 1998 to extend the deadline for compliance to 2018. The Mastagnis did not perform retrofitting prior to the earthquake.

The jury found for plaintiffs, and awarded $700,000 in the death of Marilyn Zafuto and $1.2 million in the death of Jennifer Myrick. The judgment made each defendant jointly and severally liable as to all damages. The Mastagnis appealed.

On appeal the Mastagnis argued they had not been negligent because retrofitting was not required until 2018. They said the city ordinance represented a balancing of safety, public interest and costs and, as such, it reflected the city’s determination of what was reasonable.

The Court of Appeals disagreed, saying compliance with laws is not a complete defense to a tort action. Instead, the court said, “a statute, ordinance or regulation ordinarily defines a minimum standard of conduct” and does “not preclude a finding that a reasonable person would have taken additional precautions under the circumstances.”

The Acorn Building today, rebuilt and restored as original

The court also disagreed with the Mastagnis’ argument that each defendant should be liable for only a portion of the judgment, based on the jury’s calculation of their degrees of responsibility. For example, the jury found Mary Mastagni individually 30 percent responsible for the deaths, and the trusts 45 percent responsible. But, as the Court noted, the jury also found defendants operated the building as a joint venture and, consistent with partnership law, each partner is jointly and severably liable for partnership obligations, without regard to their partnership interests or, in this case, responsibility.

Moral: Because the Mastagni children were sued as trustees, presumably the judgment is enforceable only against their trust assets (mainly, the Acorn Building). Mary, on the other hand, may not fare as well since she was also sued in her individual capacity.

The Mastagnis may have liability insurance to cover this mess. Either way, owners should be mindful of this risk when shopping for commercial general liability insurance.

The case is reported as Myrick v. Mastagni, 185 Cal.App.4th 1082 (Cal. App. 2010).

Last Wishes

Sunday, July 18th, 2010

A transfer on death deed:  What a difference a day makes.

UNIONTOWN, OH–Charles Morris was dying.

Diagnosed with colon cancer in 2004, his condition worsened until, in the summer of 2006, the end was near.

Charles' house: A dying wish would be tested in court

So Charles sat with a lawyer to draw up a will.  He wanted his house and two cats to go to his ex-wife, Michelle;

his computer and camera equipment to Thomas Hall; and the remainder of his possessions to his nephew, Joseph Mattia.

Because gifts made by a will must go through probate, which could tie up the real property for months, the lawyer suggested Charles sign a transfer on death deed, so that upon his death the house would immediately pass to Michelle outside of probate, without court supervision.

The transfer on death (“TOD”) deed is new.  It’s an alternative to the trust, or joint tenancy with right of survivorship, as a means to transfer a decedent’s real property without necessity of probate.  Ohio’s statute approving the TOD form became effective in 2002.

On August 25, 2006, Charles executed his Last Will and Testament, along with a TOD deed naming Michelle as the transfer on death beneficiary.  It appears the TOD was left with the lawyer for recording.

Days later, on August 30, Charles died.  The next day, August 31, the TOD was recorded with the Recorder Division of the Summit County Fiscal Office.

Soon Charles’ will was filed in court and admitted to probate.  Thomas Hall was appointed executor of the estate.

As instructed by the lawyer, Michelle recorded an affidavit of transfer on death, stating she was the sole surviving beneficiary under the TOD, along with a certified copy of Charles’ death certificate.

Then things got contentious.

Joseph Mattia, the nephew entitled to the remainder (“residue”) of the estate under Charles’ will, filed suit for a judgment that the TOD was invalid, because the deed was not recorded while Charles was living.  Such a judgment would cause the house to be included in the probate proceedings where, as part of the “residue” of the estate, it could be inherited by Joseph.  This leaves Michelle with just the two cats.

Joseph argued for a literal reading of the Ohio statute (Revised Code section 5302.22).  The statute says that a TOD deed must be executed and recorded for the beneficiary to have rights to the property.  So, the argument goes, a deed recorded after the grantor’s death is ineffective.

Michelle countered that the statute should not be so narrowly construed.  She pointed out a grantee can’t control when a deed, filed for record, will be officially “recorded.”  She also invoked the familiar rule that a deed is effective, as between the grantor and grantee, when it is executed and delivered (i.e., entrusted to a third party for recording).

The trial court ruled in favor of Joseph, and the decision was upheld by the Court of Appeals.

Summit County courthouse at Akron, Ohio

The courts relied on language of the statute, which states that a property owner “may create an interest in the real property transferable on death by executing and recording a deed as provided in this section….”  Citing an earlier Ohio case in which the literal interpretation was followed, the appeals court reasoned that a TOD deed may be later revoked by a grantor, so the recording requirement protects the grantor’s true “last wishes.”

Moral:  As of this writing, the TOD deed has been approved by legislatures in more than a dozen states and is under review in the rest.  It may become commonplace.  As with anything new, there may be pitfalls.  When relying on the TOD deed you should get legal advice, follow your state statute, and be mindful of local recording practices.

Such is the power of wishes.

The (unpublished) case is reported as Mattia v. Hall, 2008 WL 186650 (Ohio App. 9 Dist.)

Hide and Seek

Monday, June 14th, 2010

A plan to dodge tax liens runs aground.

McLEAN, VA–Alexandra Murnan wasn’t clear about paying taxes.  By 2001 there were multiple federal tax liens against her, totaling more than $100,000.

So when an uncle offered to give her a house in upscale McLean, Alexandra saw she would have a problem.  The tax liens were recorded in Fairfax County, and if she accepted a deed the liens would attach and the IRS might force a sale of the property to pay her tax bill.  What to do?

The gift property: A gift for the IRS?

Alexandra consulted a lawyer, and based (perhaps only partly) on advice she created a trust to take title to the property.  Four days later, the uncle signed a deed conveying the property to Alexandra, as Trustee of the “Murnan Spring Hill Trust,” and the Trust took title subject to the uncle’s mortgage in the amount of $420,905.

The Trust subsequently borrowed from a mortgage lender to make improvements to the property.  Incident to these borrowings the Trust gave a deed to the lender to secure repayment.  When the Trust failed to make payments, the lender recorded the deed and became owner of the property.

In February 2003, the Trust negotiated to repurchase the property for $819,604.  The repurchase was financed by a new mortgage loan.  As part of this transaction, the Trust obtained an owners policy of title insurance in the amount of $1,450,000 from Stewart Title Guaranty Co.  Although Stewart Title was aware of the recorded tax liens, the title policy in favor of the Trust did not include a specific exception for them.

Within months the recent mortgage was also in default, so the Trust offered the property for sale.  In September 2003, the Trust contracted to sell the property to Krishna Tayal for $1,140,000.

But this time several title companies, including Stewart Title, required that the tax liens against Alexandra individually be paid, before they would issue a new owners policy to Tayal with coverage against them.  The liens now totaled almost $300,000.

The Trust made a claim under its title policy, but Stewart Title denied coverage.  Tayal canceled his purchase contract, and the Trust filed suit against Stewart Title for breach of the insurance contract.

Albert V. Bryan U.S. Courthouse, at Alexandria, Virginia

A federal trial court ruled in favor of Stewart Title, and the Trust appealed.

The Fourth Circuit Court of Appeals affirmed the trial court, finding the liens against Alexandra individually would attach to this Trust property, because the Trust was revocable at the sole discretion of Alexandra, she had control of Trust assets (the house), and she was sole beneficiary of the Trust during her lifetime.  It follows that if the IRS should enforce its lien to acquire Alexandra’s interest in the Trust, it could revoke the Trust and become owner of the property.

The Court then held that the Trust’s title policy claim was excluded from coverage by a standard policy exclusion for matters “created, suffered, assumed or agreed to by the insured claimant.”  Alexandra allowed the liens to exist, by her non-payment of taxes, and Alexandra, as trustee, “‘suffered’ the liens on the property by accepting title on behalf of the Trust.”

Under the circumstances, the Court said Stewart Title’s knowledge of the tax liens prior to issuing the owners policy makes no difference.

Moral:  There may be ways to shield assets from creditors by use of a trust (see, “spendthrift trust”), but this wasn’t one of them.  And protection against your own pre-existing debts is not ordinarily covered by insurance.

The (unpublished) case is reported as Murnan Spring Hill Trust v. Stewart Title Guaranty Company, 105 A.F.T.R.2d 2010-1756  (4th Cir. 2010).

50 Monkeys

Sunday, April 25th, 2010

Reverter:  A gift of land recalls its purpose.

SANTA ANA, CA–J. E. “Ed” Prentice came to Orange County in the early days, when it was just a farm belt dotted with a few small towns and whistle-stops.

He had  been a teacher, lawyer, and sometimes farmer in his native Kansas when, in 1912, he and his wife Edith came west.

They settled in Santa Ana, the county seat, and Ed got into business trading mules and horses.  He owned a stable in town and folks called him “Judge.”  At home, he kept a pet monkey.

Judge Prentice, with monkeys

By the 1920s, Ed was busy buying orange groves and making farm loans from an office he occupied in the First National Bank Building.  He now had four pet monkeys.

Then came the depression.

It was 1931 and Ed, now 44, held a mortgage against the Melwood Estate on the outskirts of town.  Melwood was 19.23 acres with a sixteen room mansion, a producing orange grove, water plant and packing shed.  The owner was in dire straits, and the mortgage was in default.  Ed foreclosed and got the property for $12,600.

Ed and Edith, who were childless, moved in at Melwood with Ed’s monkeys.  There, they rode out the depression until 1940, when Edith died.  After that, Ed lived alone with a succession of servants who, tormented by monkeys, kept quitting.

By 1949, the Melwood grove was in decline and suffered from disease.  Ed got the idea to give some land to the city for a park.  The gift was accepted, and a deed was recorded conveying twelve acres to the City of Santa Ana, with “conditions.”

The deed conditions were that the land was to be used for a park only, to be named “Prentice Park,” and “at all times ample accommodations shall be provided for 50 monkeys.”  If the monkey population should fall below 50, the land would automatically revert to Ed or his heirs.

The Santa Ana Zoo at Prentice Park opened in 1952.  Ed continued to live next door, but he became irritated that city officials underfunded the park and it looked shoddy.  He called them “knuckleheads,” and grumbled that they should return the zoo to him so he could run it.

The Santa Ana Zoo at Prentice Park

Eventually Ed moved away, and in 1959 he died at age 81.

For more than 50 years all went well at the zoo.  Monkeys played and children came to ogle.  Then, in August 2008, the city got a letter from an attorney representing one Joseph Powell, a grand-nephew of J.E. Prentice.  The letter demanded proof that the zoo had 50 monkeys or, the letter said, “we plan to proceed with our rights under the grant deed to have the property revert back to Mr. Prentice’s heirs.”

It seems the cagey Mr. Powell had visited the zoo and counted monkeys.  There were only 49, he claimed, after the death of a 35-year-old silver langur named Geni.  Within months, the count dropped again with the death of a capuchin named Monty.

The City Council began to fret.  Healthy monkeys, to live in captivity with others of their endangered species, are hard to come by.  International rules have to be followed.

Maya, right, with baby clinging to her back

Then a wondrous thing happened.  The little monkeys rose to the legal challenge mounted by Powell, and a golden lion tamarin named Maya gave birth to twins.

In ensuing months, a pair of crested capuchins named Romeo and Juliet added another offspring, bringing the monkey population to 51.

And zoo officials aren’t sitting on their tails, either.  They announced they will build their collection of “bona fide” monkeys (no lemurs or gibbons) to at least 55.  Romeo and Juliet are, after all, on loan from Brazil.

Moral: The reverter clause is legally enforceable by the Prentice heirs (and who knows how many there are), so this monkey census is serious business.

The stakes are high.  The twelve acres in central Orange County are now worth millions.

It comes down to law; the law of the jungle.

The 1949 deed, with reverter

For Love or Money

Monday, March 29th, 2010

A family tragedy; then came forgery.

GREAT FALLS, VA–With savings from their contracting business, Wu-Hung and Yeh-Mei Chen came to America.

The plan was to save their sons, Raymond and Edward, from Taiwan’s mandatory military service, and give them a better life. Once here the family settled in this suburb of Washington, DC.

Coming to America: The Chen family home

The Chens bought an upscale home on two acres, and invested in four other residential properties.  Raymond, the eldest son, went to college and majored in business so he could manage the family holdings.

But the family plan began to unravel when young Edward fell in love with Mandy, a high-school dropout and teenage mom.  His mother objected–this was not the “nice Chinese girl” she wanted for her son.

Yeh-Mei was hurt and angry, and she badgered Edward to stop seeing Mandy.  Edward fought with her, and there were heated family arguments.  Finally, the stress Edward was feeling became unbearable.  He bought a 30-30 Winchester rifle at K-Mart, and shot his mother, father and brother in their beds.

Edward told Mandy they could now be together.  He told neighbors and relatives back in Taiwan that his parents and brother had died in an auto accident.  He locked up the house, with the victims still inside, and moved in with Mandy.

Edward Chen

Edward Chen

Mandy got pregnant and Edward married her.  Soon they had a new baby daughter.

Edward lived off rental incomes for a while, but with expensive tastes and mounting bills decided to start selling the family properties.

All of the Chen properties were held in a family trust, with Raymond Chen appointed as trustee.  Edward got a new driver’s license with his photo and Raymond’s name.

Edward went about selling the properties, impersonating his dead brother.  Edward and Mandy divorced.

The family home was the last to be sold.  It was now more than four years since the killings, and the victims had yet to be removed.  But while it sat vacant, a water pipe had failed and flooded much of the house.  Floors, walls and carpeting were damaged or ruined.  There was mold.

Edward cleaned up the blood stains, and ditched his victims’ bodies in Chesapeake Bay.  He offered the house “as is” at a big discount.

A young couple bought the house, and rehabilitated it from top to bottom.

Wei-Meh Chen

Yeh Mei Chen

Edward got a new girlfriend and they began to live together.  In an unguarded moment, he told the girlfriend that he’d killed his parents and brother.  The girlfriend saw danger, and went to the police.

The police interviewed Mandy, who also knew of the killings, and Edward was arrested.

As reported by the Washington Post, Edward was surprised to be arrested and he made a taped confession.  But when the confession was thrown out, as Edward had not been read his Miranda rights, Fairfax County prosecutors became worried about their case.  They had no murder weapon, and couldn’t find the victims’ remains.  All they had to go on were statements of an ex-wife and former girlfriend.

Edward eventually took a plea bargain.  He was convicted of three counts of first degree murder, and sentenced to 36 years in prison.  He was 27 years old.

But now buyers of the five Chen properties had big problems.  They realized deeds they got from “Raymond Chen,” as trustee of the family trust, were forgeries.  The deeds were void, and ownership of the properties remained in the trust.

The trust, it turned out, had as beneficiaries the father, mother, and their “descendants.”  Upon death of the parents and all descendants, trust assets would be given to a hospital in Taiwan.

So here’s the deal:  After the killings the only “descendant” was Edward–his daughter would be born two years later.  But the law says that a killer can’t benefit from the death of his victim (the so-called “Slayer’s Rule”), so Edward could not inherit the trust assets.  But what about Edward’s daughter, was her inheritance also barred by the Slayer’s Rule? And, if so, were the buyers of the five Chen properties now guests of the hospital in Taiwan?

For these buyers, this was the proverbial riddle wrapped in an enigma….  What to do???

The buyers had title insurance, and title companies paid for lawsuits to quiet title.  A legal guardian was appointed for Edward’s minor daughter.  In time the hospital released its claims.  Title companies contributed to a $1.2 million settlement with the daughter, and five titles were confirmed by court order.  The buyers got to watch new deeds get recorded in Fairfax County land records.

Case(s) closed.

Moral:  The risk of identity theft, impersonation, forgery–whatever you choose to call it–can be covered by title insurance.