Season 3, Episode 5

November 27, 2024Episodecbowness

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Riker Danzig partners Stuart Lederman and Rudy Randazzo were our special guests for the 5th episode of Season 3, moderated by our co-hosts Michael O’Donnell and Bethany Abele. Stuart and Rudy practice in Riker’s Governmental Affairs and Litigation practices with extensive experience in Eminent Domain and Condemnation Law as well as Construction Law, regularly navigating issues of title, and frequently interacting with our title insurance attorneys at the intersection of title law and real property condemnations. Stuart and Rudy represent both governmental entities who are acquiring properties, and also property owners whose properties are targeted to be taken for particular government projects.

What You Will Hear on This Episode:

What are the key stages of the condemnation process?
- Is it important for property owners to attend early meetings on government projects that may impact their properties?
- What are the public purposes for which a property may be taken?
- To whom may the government delegate the power of condemnation?
- Does the governmental entity have the right to conduct a property title search in advance of a taking?
- How is fair market value determined? Is lost business taken into consideration?
- What are bona fide negotiations and when can a condemnation complaint be filed?
Whose interests are important in properties being taken?
What is a “quick take”? Can a property be taken and put to public use even while litigation over rights and fair market value is pending?
What are critical defenses to a real property taking?
- How do you prove a pretextual purpose (improper motives, bad faith or abuse of power)? (Essex Fells v. Kessler Institute and Atlantic City v. Trump Casino)
- What constitutes failure to negotiate, and can this prevent the taking?
What is the role of condemnation commissioners, and who has the burden of presenting evidence to establish value at trial?
What are the implications if it is not a “full” taking?
Is the government required to pay for another party’s environmental damage to the property?
What are the special implications for lien holders of a property being taken?
Are judgments final, and can the property owner appeal?
What is an inverse taking?

In addition, Stuart and Rudy shared some interesting anecdotes from their wide-ranging experience representing government agencies tasked with taking property, including allowing a “jury view” of the condemned property during a trial on the taking, and another case where the property owner resisted the taking by hiring private militia to face down the bulldozers, creating a standoff between the armed militia and the local National Guard brought in by the governmental entity. They also touched on their related Construction Litigation practice and the dovetailing of the two practices, particularly when temporary easements are recorded on taken properties for large construction projects, and construction delays ensue with adverse effects.

Next, Bethany interviewed our newest associate in the Title Insurance practice, Shelley Wu, who discussed Moldovan v. Long, No. 1 CA-CV 23-0470, 2024 Ariz. App., Unpub. LEXIS 460 (Ct. App. May 30, 2024). In this case in the Arizona Court of Appeals, the court affirmed a summary judgment in favor of a settlement/escrow agent, finding no breach of duty where the agent sufficiently disclosed to the seller the existence of a potentially fraudulent deed but did not further investigate or determine its validity.

Bethany and Shelley discussed many of the noteworthy statements in the appeals court’s ruling that sheds light on the responsibilities of disclosing additional deeds, and concerning negligent misrepresentation claims.

Key questions addressed in Moldovan v. Long:

What are the responsibilities of escrow agents and where are those responsibilities outlined?
In particular, what are the duties of an agent when a suspicious or potentially fraudulent deed appears in the chain of title?

Season 3, Episode 4

September 16, 2024Episodeproperty survey, title defects, title insurancecbowness

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Title Nerds co-hosts Michael O’Donnell and Bethany Abele talked with special guest Jeffrey Greif, a seasoned real estate title sales professional with 37 years’ experience, most of which has been with First American Title Insurance Company, with which he is a four-time Circle of Excellence award winner. Jeffrey explained why title insurance is necessary, to confirm that “the property you think you are buying is actually the property you are buying,” giving examples of the various title defects that can be uncovered when conducting title searches, including neighbor disputes, inheritance issues, fraud, and more. Jeffrey discussed how title insurance has evolved over the years and how technology has fueled new enhancements, along with cautions against relying on attorney opinion letters in lieu of title insurance. Also, since Bethany described Jeffrey as a “fantastic networker,” he provided valuable and practical networking tips for professionals.

He closed with a fascinating war story from his career, where his team had to research documents from 100 years ago in order to confirm property ownership.

Next, Riker Danzig associate Matthews Florez provided an overview of a recent case decided in the Court of Appeals in Washington State, finding that a title insurance company could deny coverage to a policyholder based on an exception for loss by reason of “matters disclosed by a record of survey” when the recordation information for a boundary line adjustment was disclosed only on the survey. Matthews and Mike discussed the details of the case, High Definition Homes, LLC v. Stewart Title Guar. Co., No. 58677-1-II, 2024 Wash. App. LEXIS 1601 (Ct. App. Aug. 6, 2024), which makes clear the importance of understanding and exploring what is disclosed in a property survey prior to purchase.

Season 3, Episode 3

July 31, 2024Episodecommunity wealth preservation act, right of first refusal, title agent, underwriting counselcbowness

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Co-hosts Michael O’Donnell and Bethany Abele welcomed special guest Scott Sumner, Vice President and Underwriting Counsel of Fidelity National Financial, who has played various roles in his 21-year career, including serving as NJ State Counsel and NJ State Manager for the business operations.

Scott provided insights as to what title agents can do to get their deals closed efficiently, including urging agents to raise potential issues as early as possible and to provide all known facts to the underwriting counsel. Some of the more challenging situations that Scott addressed were tidelands searches, bankruptcies and mortgage foreclosures, and application of the new Community Wealth Preservation Act. He also discussed the ramifications of two new State statutes on tax sale foreclosures. In addition, Scott shared details of one complex project, an energy generation facility on the Raritan River with a cable extending to the NY state line, presenting myriad title issues. Finally, Scott also had recommendations for affinity groups that young professionals in the industry should seek out, including the NJ Land Title Association, American Land Title Association, state and county bar associations, and others.

Then three of Riker Danzig’s Summer Associates provided summaries of some recent decisions affecting the title insurance industry that are posted on the firm’s blog on banking, real estate and title insurance.

Brandon Li, a rising third-year law student at Seton Hall University School of Law, discussed NorthMarq Financial, Ltd. v. Fidelity National Title Insurance Company decided in federal court in Colorado. In the case, the Court rejected the insured’s claim for defense and indemnity for mechanic’s liens on a construction project for a senior living center. Brandon said the case highlights the need for parties to include specific endorsements if they want coverage for post-policy liens.

Georgia Macedo Cardoso is also a rising third-year law student at Seton Hall University School of Law. Georgia discussed 771 Allison Court LLC v. Sirianni, in which the New Jersey Appellate Division decided that the failure to disclose a right of first refusal clause in a prior deed prevented good, marketable, and insurable title from being delivered at closing. Georgia said the case confirms the obvious: any seller of real estate should be forthcoming and disclose a right of first refusal before entering into any real estate contract and should not take shortcuts.

Keshav Agiwal, a rising third-year law student at the University of Richmond School of Law, discussed Nationstar Mortgage, L.L.C. v. Scarville, decided in the Court of Appeals in Ohio. The case involved the doctrine of lis pendens and the timeliness of a third party’s motion to intervene in a foreclosure litigation. Keshav suggested two major takeaways from this case: one is the importance for parties to know the intricacies of various state law doctrines, such as lis pendens and how it is used in one state versus another. The other big takeaway is that a buyer of property needs to know that property’s history of litigation and what litigation the property may still be involved in or could be in the future.

Season 3, Episode 2

May 6, 2024Episodeland use, planning boardcbowness

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Riker Danzig partners Jim Lott and Diane Hickey were our special guests for the second episode of Season 3, moderated by our co-hosts Mike O’Donnell and Bethany Abele. Jim and Diane practice in Riker’s Governmental Affairs practice with extensive experience in Land Use law, regularly dealing with disputes over title, and continually interacting with planning boards and the Department of Transportation at the intersection of title law and real estate development.

They explained to Bethany and Mike that most of their title examination for commercial development comes during thorough due diligence, whether for developers, lenders or investors, which serves to help avoid most title disputes. They advise as to the best courses of action to address a potential title issue in appearances before planning boards, from controversial warehouse projects, and commercial shopping centers to lighting applications for drive-up ATMs. Diane also addressed specific issues faced by cannabis licensees with applications before the local planning and zoning boards, when title insurance companies are not issuing policies because of federal law hurdles for real property transactions with cannabis uses. Jim also provided insight on being attentive to DOT access rights for properties located along state highways when considering subdividing or changing lot lines, and dealing with easements in the planning board context.

Next, Mike interviewed then-associate Thomas Persico, who is now serving as Assistant General Counsel with JPMorgan Chase. Tom explained the Community Wealth Preservation Program established by Governor Murphy early this year, which aims to intercept foreclosed-upon residential properties before public auction by giving first and second rights of refusal to purchase after foreclosure. The goal of the program is to keep generational wealth within families. Tom addressed how the Act works and the various restrictions, as well as how sales under the Program differ from other foreclosure sales. Mike and Tom discussed the process of exercising the rights of refusal, exploring how sheriff’s offices are enforcing deed restrictions and addressing complaints. They also identified areas of the Program that will likely be clarified in the future.

Season 3, Episode 1

March 6, 2024Episodeexpert consultants, joint tenancy, title expert, title insurancecbowness

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Co-hosts Mike O’Donnell and Bethany Abele kicked off the third season of Title Nerds by welcoming special guest Bushnell Nielsen, author of the well-regarded treatise Title and Escrow Claims Guide, which Mike and Bethany noted they and every title insurance attorney in the country regularly refer to. Bush provided tips on finding and working with expert consultants for title insurance cases, from hiring to trial.

He gives his insight on when you should find the expert, asking specific questions to discern if the expert knows what you need the expert to know, how to work with an expert on his report and testimony and addressing the other side’s expert, and other procedural tips.

Mike then interviewed Kevin Hakansson, an associate in our Title Insurance practice, about Pillai v. Scalia, 103 Mass. App. Ct. 1122 (2024), a case at the intersection of family law, real estate and joint tenancy. Title to the property at the center of the case originated in joint tenancy between three parties, but questions arose after a divorce, a death, a resale and a refinancing, at which point a possible title defect was uncovered. Kevin explains the facts of the case that resulted in the Appeals Court determining that the surrounding circumstances demonstrated that joint tenancy was what parties’ intent dictated.

Season 2, Episode 6

December 15, 2023Episodeconstructive notice, Georgia, honeowners associations, inquiry notice, Inspect HOA, security deed, WW3 Ventures v. Bank of N.Y. Melloncbowness

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Special guest Anton Tonev, co-founder of Inspect HOA, joined us for our final episode of Season 2 of Title Nerds. Drawing from his own experience as a member of an HOA, he built this business for real estate professionals and buyers who need to deal with homeowners associations. With 400,000 HOAs in the U.S. and no central database of HOAs, his business has established a niche service, including hoa.com, to assist buyers, attorneys, lenders and escrow officers. He and his team work with clients on several thousand closings a month.

Anton shared examples of scenarios in which Inspect HOA has been able to assist buyers and others in avoiding problems with the rules and regulations that HOAs try to enforce, particularly with regard to leasing out properties. Mike explored ways that Inspect HOA assists escrow officers and attorneys with avoiding issues during closing transactions when there may be violations or special assessments. Anton suggested that by automating work, such as how his company has been able to do, it allows clients to be more efficient and productive and minimize errors and mistakes, thereby speeding up the closing process for all parties.

Mike then interviewed Thomas Persico, our newest associate in our Title Insurance practice, about WW3 Ventures v. Bank of N.Y. Mellon, Nos. A23A0719, A23A0720, 2023 Ga. App. LEXIS 536 (Ct. App. Nov. 3, 2023), wherein the Georgia Court of Appeals addresses how constructive and inquiry notice related to a recorded security deed not properly witnessed.

Season 2, Episode 5

November 21, 2023Episodebulkhead bumpouts, failure to disclose, fraudulent concealment, Hillary Developer, Joe Grabas, land surveys, LLC v Security Title Guarantee Corporation of Baltimore, NJDEP, Tidelands, waterfront development, wetlands surveyscbowness

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Forensic title expert Joe Grabas was our special guest for Episode 5 of our second season of Title Nerds, joining co-hosts Mike O’Donnell and Bethany Abele. Joe is a certified title professional, and the Director and Chief Instructor of the Grabas Institute for Continuing Education. He is also the author of “Owning New Jersey: Historic Tales of War, Property Disputes & the Pursuit of Happiness.”

Mike asked Joe to talk about tidelands issues, a particular concern in New Jersey since the State of New Jersey has rights to the land not only currently flowed by the tide, but formerly flowed by the tide, creating unique challenges for homeowners who may not see any apparent water anywhere near the site; the State of New Jersey may still claim ownership of a large share of that property. Joe emphasized the importance of always ordering a wetlands survey and a land survey upfront when contemplating the purchase of any property, as both a title issue and a regulatory issue. Joe also discussed how the NJDEP handles bulkhead bumpouts for waterfront development, another thorny issue, as well as how hearings before the Tidelands Bureau, which considers applications for tidelands grants, are conducted.

Bethany then interviewed Jim Mazewski, an associate in our Title Insurance practice, about Hillary Developer, LLC v Security Title Guarantee Corporation of Baltimore in the New York Appellate Division, 2^nd Department, a published decision at 219 A.D. 3d 815 (2023). Jim explains the complicated details of the case, wherein a Defendant sold property to Hillary Developer under an alternate name, which property had already been sold to a different buyer at a sheriff’s sale to satisfy a judgment. Hillary Developer later filed suit against three parties including Security Title, which had issued Hillary a title insurance policy, alleging that it had not been informed of the judgment’s existence. Security Title then brought claims against its issuing agent, SSS Settlement, for fraudulent concealment and prima facie tort, alleging intentional harm and malice. SSS Settlement moved for dismissal of the claims, which was denied by the trial court but reversed and dismissed on appeal.

Jim said the important takeaway from this case is that, when pleading a fraudulent concealment claim based on a failure to disclose information, it is necessary to identify the specific duty imposing the obligation to make that disclosure.

Season 2, Episode 4

June 23, 2023EpisodeAlabama, Davis v. Reverse Mortgage Solutions, declaration of ownership, Federal Land Bank of New Orleans v. Williams, foreclosure deed, Lance Pomerantz, metes and bounds, mutual mistake, reverse mortgage, title disputescbowness

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Our special guest for Episode 4 of our second season of Title Nerds was land title attorney Lance Pomerantz of Land Title Law. An attorney who provides expert consultant services to the title insurance and real estate industry, Lance shared some very interesting war stories from his “accidental career.” He has researched land grants back to the Royal Charter, as well as underwater land grants and title disputes involving numerous New York beachfront properties.

Co-host Michael O’Donnell asked Lance about some of the thorniest chains of title Lance has been involved in, some of which had him sounding more like a gritty Harrison Ford character than a land title attorney!

Co-host Bethany Abele then interviewed Kevin Hakansson, an associate in our Title Insurance practice, about Davis v. Reverse Mortgage Solutions, (No. 2:20-cv-632-CWB, 2023 U.S. Dist. LEXIS 42496 (M.D. Ala. Mar. 14, 2023)). In Davis, two parcels of land, one with a house and the other with the surrounding yard and pool, were merged into a single tax parcel, which passed to the Plaintiff upon her father’s death. The father had applied for a reverse mortgage three years before his death, and it was not discovered until later that the metes and bounds description for the reverse mortgage only contained the description of the second parcel of property, and not the parcel with the house.

Consistent with the metes and bounds description, the Foreclosure Deed encompassed only the non-residence portion of the property. The Plaintiff subsequently asserted ownership to the first parcel with the house and filed suit seeking a declaration of ownership.

Ultimately, the federal court granted summary judgment to the Plaintiff, who asserted claims for reformation of both the mortgage and a subsequent foreclosure deed on the grounds of a mutual mistake. The Court noted that it was “authorized to reform real estate documents in circumstances where—due to a mutual mistake—the executed documents fail to reflect the true intentions of the parties.” It relied upon precedent issued in Federal Land Bank of New Orleans v. Williams, a case in which the Alabama Supreme Court granted reformation of a mortgage when a survey discovered that the mortgage did not properly describe the parcel on which the borrower resided.

Bethany and Kevin agreed that the Court got this right, taking a common-sense approach to determining whether the reverse mortgage should be reformed. The Court looked to the circumstances and documentation to find that the parties were all aware that the parcel of property with the house was intended to be encumbered.

Season 2, Episode 3

April 24, 2023Episodeadverse possession, Ancient deeds and surveys, boundary lines, covenants, deed restrictions, easements, land surveys, modern surveying procedures, mother deeds, short-term rentals, single-family residential use, surveyors, West Mountain Assets LLC v. Dobkowskicbowness

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Surveyor Keith Ludwig, PLS was the special guest for this episode of Title Nerds, in which he discussed with co-hosts Mike O’Donnell and Bethany Abele his experience of over 42 years in the industry. With a specialty in researching ancient deeds and surveys, Keith shared some of the more fascinating matters he has encountered while conducting land surveys, including serving as a surveyor for a defendant in Atlantic County where title had gone back and forth between the same two families numerous times over 200 years. He noted that a major misconception about surveyors is that it is their responsibility to determine if a particular easement or covenant affects the property in question. That is not true. The surveyor can only state where the easement/covenant lies physically, but cannot advise whether it affects the property; that is the responsibility of the attorney to determine.

Keith noted the importance of looking back at mother deeds when preparing boundary surveys, no matter how much time had gone by, and also discussed the interesting issue of streams and tidelands as boundary lines, when the water flow may have shifted.

Mike and Bethany were interested to hear how surveying has changed during the course of Keith’s career, with GPS revolutionizing modern surveying procedures.

Mike then interviewed Riker Danzig’s newest associate on our Title Insurance team, Kori Pruett, who provided an overview of a New York case involving AirBNBs. In West Mountain Assets LLC v. Dobkowski, the New York Supreme Court held that the plaintiffs, who were using their home as an AirBNB, were violating a deed restriction limiting use to “single family residential purposes” only. The plaintiff had brought a suit for alleged interference with its tenants’ (various AirBNB clients) free use of the property, claiming that the defendant neighbors were interfering with use of the road servicing both properties.

Defendants counterclaimed for a declaration that the plaintiff’s use of the property for short-term rentals violated the deed restrictions, which stipulated the property could only be used for single family residential purposes, could not be used for commercial activity, and could not be used for “noxious, dangerous, offensive or unduly noisy activity of any nature.” Defendants also counterclaimed for adverse possession of a portion of the road parcel.

Kori explained that the defendants were granted summary judgment on the first counterclaim, with the Court holding that the “transient living” nature of AirBNB tenants fell outside the scope of a single-family residential use. The adverse possession claim was dismissed.

Kori cautioned that this case demonstrates that property owners need to pay attention to any deed restrictions before renting out their home as an AirBNB or VRBO type of rental.

Season 2, Episode 2

February 9, 2023Episodeaffordable housing, American Land Title Association, complete defense rule, conflict of interest, Findlay v Chicago Title Ins. Co., Illinois Appellate Court, title insurance fraud protection, title monitoring services, wire fraudcbowness

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For our second episode of the new season, Title Nerds co-hosts Mike O’Donnell and Bethany Abele interviewed Steve Gottheim, General Counsel of the American Land Title Association (“ALTA”). Steve discussed some of the primary issues of concern to ALTA and its members, including housing recession possibilities, public policy issues around increased access to affordable housing and, generating the most conversation, real estate and wire fraud. Steve noted that ALTA is deeply involved in providing education and assistance to title insurance and real estate professionals to help avoid scams and to identify money laundering scenarios. In addition, ALTA provides a host of educational materials about avoiding wire fraud for consumers and real estate agents. Steve also touched on the proliferation of title monitoring services, and the need for home buyers to consider enhanced homeowners policies with title insurance fraud protection.

Bethany then interviewed Riker Danzig associate Jim Mazewski about the complex title insurance coverage matter Findlay v Chicago Title Ins. Co., 2022 IL App (1st) 210889 (2022). Therein, the Illinois Appellate Court, First Division, adopted the reasoning of other outside jurisdictions and held that title insurance claims were exempt from Illinois’ “complete defense rule,” which requires that an insurer provide a defense on all claims raised against an insured even if only one of the claims is covered.

In this matter, landlocked homeowners were able for years to easily access the Lake Michigan beach via a beach easement across a portion of a neighboring lot, Lot 5. However, when Lot 5 was purchased by a new owner, the new owner objected to neighbors cutting across his property and filed a lawsuit to prevent them from doing so. The landlocked homeowners sought a declaratory judgment, implying that an ingress-egress easement existed on Lot 5. The new owner of Lot 5 won that suit, and then sued Chicago Title, which had received claims from both parties to the first lawsuit as they were both insured by Chicago Title. The plaintiff’s suit against Chicago Title alleged conflict of interest, failing to provide coverage for all counts of the earlier litigation, and failing to approve of the plaintiff’s retention of a new attorney. Failing at trial on all claims, the plaintiff appealed.

In a decision in line with a growing body of caselaw, the appellate court found title insurance companies are not subject to the “complete defense rule.” The Court also found that Chicago Title had the right to select counsel of its choosing, not the insured’s. Tune in to the podcast for an in-depth discussion of the Appellate Court’s consideration of the plaintiff’s claims leading to the decision.