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REAL ESTATE REFERENCE GUIDE for Judges and Law Clerks

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REAL ESTATE REFERENCE GUIDE for Judges and Law Clerks REAL ESTATE REFERENCE GUIDE for Judges and Law Clerks Prepared by Office of the Ramsey County Examiner of Titles Wayne D. Anderson, Examiner Edited by Hon. Shawn Bartsh Judge of the Second Judicial District Version 2.0 July 1, 2018 Introduction Judges come from varied backgrounds and may rotate through subject-matter-specific courts but sooner or later, all judges will be assigned a case involving real estate issues. For judges who last encountered those topics as 1L, there can be a steep learning curve. In cases with pro se defendants or ill-prepared attorneys, the Court cannot depend on the parties to illuminate the issues. When the blind lead the way, justice is not the most likely destination. Real estate law is broad enough and complex enough to warrant its own specialist certification by the Minnesota State Bar Association. This guide is intended neither to make you a real estate specialist nor to substitute for the pleadings and briefs submitted in your case. This guide is intended to give you a jump-start on legal research, to check the assertions made in the pleadings and briefs, and to raise issues the parties may have failed to consider. The first part of each topic section is an overview, suitable to print and carry to the bench for quick reference during oral argument. It’s a red-flag list, intended to raise points to question during argument or to request later briefing, such as “Necessary Parties.” The latter part of each topic section provides citations to landmark cases. This part is intended for use when reading the briefs and writing the decision. Of course, you will do your own legal research and reach your own conclusions. We’re simply providing a common starting point. Updates are added at the end of the relevant section, to make them easier to find. This guide grew out of a series of conversations with Hon. Shawn Bartsh, Judge of District Court, who provided valuable guidance along the way. This guide was researched and written by Nathan Bissonette, Deputy Examiner for Ramsey County, then circulated in draft form for peer review. More than a dozen practicing real estate lawyers suggested changes and improvements, including major contributions to these sections by: Contracts for Deed and Purchase Agreements: Larry Wertheim, Kennedy and Graven Inverse Condemnation: David B. Gates, Deputy Examiner of Titles, Hennepin County Streets: Kim Brzezinski, St. Louis County Examiner of Titles; Scott Lucas, Olson, Lucas, Redford & Wahlberg, P.A A word about citations: In the days when lawyers looked up cases in books, it was proper to include both the Minnesota and Northwest numbers. Electronic legal research makes one citation sufficient. Unpublished opinions are not precedential but where one offers a particularly good explanation of the law, the citation is given without attaching a copy of the opinion because you’ll be doing more research anyway. Version 2.0 July 1, 2018 Page 2 of 112 Contents Introduction .................................................................................................................................... 2 “Abstract” versus “Torrens” ........................................................................................................... 5 Adverse Possession ......................................................................................................................... 7 Attorney Lien................................................................................................................................. 10 Boundary Determination .............................................................................................................. 12 Condemnation – Eminent Domain ............................................................................................... 14 Contract for Deed and Purchase Agreement Cancellation Primer ............................................... 17 Contract for Deed – deed in fulfillment not delivered ................................................................. 18 Contract for Deed – enjoin statutory cancellation ....................................................................... 20 Constitutional Lien ........................................................................................................................ 23 Easements ..................................................................................................................................... 24 Equitable subrogation ................................................................................................................... 27 Foreclosure by action (of a mortgage).......................................................................................... 29 Foreclosure by Advertisement (of a mortgage) ............................................................................ 31 Inverse Condemnation .................................................................................................................. 33 Jurisdiction and Venue .................................................................................................................. 35 Legal Descriptions ......................................................................................................................... 36 Marital Rights ................................................................................................................................ 39 Marketable Title Act (40-year law) ............................................................................................... 40 Mechanic’s Lien............................................................................................................................. 41 Name ............................................................................................................................................. 46 Option, Right of First Refusal, Right of First Offer ........................................................................ 48 Partition ........................................................................................................................................ 51 Practical Location .......................................................................................................................... 52 Priority – Recording Act ................................................................................................................ 57 Purchase Agreement – Enjoin Cancellation or Recover Earnest Money (Residential Only) ........ 59 Purchase Agreement - Specific Performance to Compel Closing ................................................. 62 Quiet Title (Action to Determine Adverse Claims) ....................................................................... 64 Redemption .................................................................................................................................. 66 Reformation of a Document ......................................................................................................... 70 Version 2.0 July 1, 2018 Page 3 of 112 Restrictive Covenants (30-year law) ............................................................................................. 72 Riparian Rights .............................................................................................................................. 73 Slander of Title .............................................................................................................................. 77 Sovereign Citizen Claims ............................................................................................................... 79 Specific Performance to compel sale closing................................................................................ 80 Statute of Frauds ........................................................................................................................... 82 Streets and Access – Overview ..................................................................................................... 84 Streets and Access – Abandonment ............................................................................................. 85 Streets and Access - Cartway ........................................................................................................ 87 Streets and Access – Implied Easements and Easements by Necessity ....................................... 92 Streets and Access – Prescriptive Easements ............................................................................... 95 Streets and Access – Statutory User and Common Law Dedication ............................................ 99 Streets and Access – Vacation .................................................................................................... 102 Tenancy ....................................................................................................................................... 108 Trespass ...................................................................................................................................... 110 Version 2.0 July 1, 2018 Page 4 of 112 “Abstract” versus “Torrens” First Question in Every Real Estate Case: Is The Land Abstract or Torrens? Minnesota has two systems of land records operating simultaneously and in parallel: the “abstract” system operated by the County Recorder and the registered property or “Torrens” system operated by the Registrar of Titles (named after its inventor, Robert Torrens). The two systems have different enabling legislation, different purposes and different rules. Your default assumption
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