The Court of Appeals will correct errors and does not alter the law.  Here, the trial court voided a foreclosure sale because it concluded that the price “shocked the conscience.”  But “[i]nadequacy of consideration alone will not justify setting aside a foreclosure sale that was fairly and lawfully conducted, without fraud or partiality and with full opportunity for competitive bidding.”  Therefore, the Court of Appeals reversed the trial court’s judgment. Arvest Bank v. Emerald Pointe, LLC et al., SD36959The post Recent Missouri Case: Court Reaffirms That Inadequate Sale Price ..read more

Missouri Constitution’s Hancock Amendment bars political subdivisions from levying a tax without voter approval, but a sewer district’s bill based on an owner’s voluntary connection to the system is a fee, not a tax.  Further, Missouri statutes generally extinguish inferior assessments upon a delinquent tax sale, but specifically give the sewer district’s bill the same priority as State and county taxes, which are superior to all other liens, and which are exempt from recording requirements, and which even survive a tax sale. Eclipse Property Development v. Ammari, et al., ED109298The pos ..read more

The Illinois legislature recently enacted House Bill 4270 which creates a statutory form for special warranty deeds to standardize what is certainly the most common form of deed used in commercial real estate practice. House Bill 4270The post New Illinois Law: Special Warranty Deeds first appeared on Hein Schneider & Bond P.C ..read more

An easement over land has no effect on the servient estate holder except for the easement’s purpose, which prevails over any right of the servient estate holder, and which the servient estate cannon inhibit.  Further, a deed which reserves an easement, without specifying the easement’s purpose, entitles the easement’s holder to “unlimited reasonable use[.]”  A non-exclusive easement is one that the servient estate holder may use, too.  Here, the trial court ordered the removal of structures on the easement despite evidence showing there was no interference with ingress and ..read more

Reformation of a deed may occur upon the parties’ mutual mistake, meaning that “both have done what neither intended.”  The quantum of proof is clear, cogent, and convincing evidence.  Here, the trial court found that parents intended to convey a life estate in land to themselves, and a remainder to two of their children; but the deed added a third child to the remainder by the parents’ scrivener’s error.  The Court found that the error constituted a unilateral mistake, which supports reformation only when concealed by bad faith conduct, which is absent from the pleadings and re ..read more

When an action for negligence is filed against an insured, and the insurer has control over the claim, a fiduciary duty to the insured is created. In this case, the possibility of a verdict in excess of the policy limits caused the insurer to suspect that the insured was guilty of a bad faith refusal to settle. The insurer then retained counsel to review the bad faith suspicion who also ended up participating in the insured’s defense in the negligence action and so became, at least in part, the insured’s negligence counsel. Therefore, matters which were outside of the retained counsel’s repres ..read more

Here, the trial court granted summary judgment against a foreclosing bank on the finding that it did not have standing because of the timing of an assignment of the mortgage to the bank and when the foreclosure action was filed. Thereafter, when the borrowers defaulted on the loan, the bank filed a second foreclosure action and, in response, the borrowers filed a motion to dismiss on grounds that the previous summary judgment barred the second action. However, the court surmised that the second action did not arise from the same operative facts as the first action because the borrowers default ..read more

In an action to quiet title based on adverse possession, the evidence that supported findings of actual, open and notorious, or exclusive possession included that the adverse possessor had cleared and maintained the disputed tract, fenced it in with hot wire, and rented it out for agricultural purposes. Maintaining a fence and posting signs against trespassing are not absolutely necessary to maintaining a claim for adverse possession. Further, the time for adverse possession may begin with an agreement on an otherwise uncertain boundary, the presumption of which arises on proof of lo ..read more

When challenging a finding for lack of substantial evidence, the appellant must address all evidence favoring the ruling, and show that such evidence is not substantial. The elements of adverse possession include actual and hostile possession, for which respondent’s supporting evidence included fencing, farming, and otherwise using the disputed land, including for access to respondent’s back acreage. Here, the appellants failed to address the evidence which favored the ruling and therefore failed to show that such evidence was not substantial.  Therefore, the trial court’s judgment f ..read more

Here, Patricia Brown filed an action seeking a constructive trust against her family members based upon a beneficiary deed that she claimed was fraudulent. The trial court dismissed the action on the basis that the statute of limitations had run. On review, the appellate court noted that constructive trusts apply to the wrongful retention of property, for which the ten-year statute of limitations begins to run with repudiation of the trust, but Ms. Brown did not allege wrongful retention or repudiation. Instead, she alleged wrongful acquisition, for which the statute of limitations starts to r ..read more