Articles Posted in Real Estate Litigation

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A lien lis pendens can be a very effective tool not only to preserve a claim against real estate, but also, to create leverage in litigation. Tennessee’s lien lis pendens statute is about as clear as mud, even to those of us accustomed to deciphering statutes drafted in the early twentieth century. To boot, Tennessee courts have given as little guidance to practitioners on the matter of liens lis pendens than on about any other legal topic of comparable significance of which I am aware.

What is a Lien Lis Pendens and What Does It Do? 

Before the enactment of the Tennessee lien lis pendens statute in 1932, under Tennessee common law, whenever a lawsuit was filed which asserted a claim in, or against, a specific piece of land, a lien was created against the land from the date of the filing of the suit. That lien was effective against all persons who might acquire an interest in the land after the lawsuit was filed.

The purpose of the lien lis pendens was to enable the court hearing the lawsuit to retain jurisdiction over the land pending the conclusion of the lawsuit. Without the lien lis pendens tool, a defendant sued over an interest in land might easily avoid justice by selling the land after the filing of the lawsuit. (If the defendant sold it to a bona fide purchaser, it would not be a fraudulent transfer which could be set aside.)  Court’s don’t like their judgments frustrated, and the lien lis pendens was created to prevent that.

Before the enactment of the lien lis pendens statute, the mere filing of the lawsuit created the lien lis pendens. That is not the case anymore (as discussed below).

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A recent opinion of the Court of Appeals of Tennessee in a fraudulent transfer case provides an excellent summary and roadmap of what it takes to prove a fraudulent transfer under Tennessee law. The Uniform Fraudulent Transfer Act, which has been adopted in Tennessee, can be a bit much to get one’s head around, at least without a good bit of review and study.  The recent opinion is useful because the facts of it are tailor-made to demonstrate how the provisions of the Act are applied and the result.

Here are the key facts of the case:

  • Father owned an LLC, the business of which was installing drywall
  • Father owed a Drywall Supplier about $350,000
  • In October of 2007, Father signed a note to the Drywall Supplier for the amount he owed
  • In March of 2009, Father sold the LLC to his Son for $12,000
  • Drywall Supplier filed a lawsuit to set aside the transfer of the LLC to Son, alleging it was a fraudulent transfer

In its fraudulent transfer case, Drywall Supplier alleged that the transfer of the LLC to Son was a fraudulent transfer under the actual fraud statute and, also, under the constructive fraud statute, both of which are part of the Uniform Fraudulent Transfer Act. The trial court found that the transfer was not fraudulent under either provision of the Act. The Court of Appeals affirmed the trial court in all respects.

Under the actual fraud statute, a plaintiff must prove that the transfer was made “with actual intent to hinder, delay, or defraud” a creditor. Since proving fraudulent intent almost always requires circumstantial evidence, the statute lists eleven (11) factors that are to be considered in determining whether there was intent to defraud.  If a plaintiff is able to prove the existence of one or more of those factors (often called “badges of fraud”), a presumption of fraud arises.  Once that presumption has arisen, the burden shifts to the defendant to prove that there was no fraudulent intent.

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In Tennessee partition cases, a court has wide latitude in determining (and ordering) the sale of property. It can order an auction sale or that the property be listed and sold through an agent. What a Tennessee court cannot do is what one did in a recent case decided by the Court of Appeals of Tennessee.

In the case of In Re Estate of Donald Carl Battle, the party who filed the partition action requested that the property be sold and that the proceeds be distributed. In that case, the partitioning party and the other party with an ownership interest agreed that the property could not be partitioned in kind, that the partitioning party had a 25% ownership interest in the property and that the other party owned a 75% interest.

The trial court ordered an appraisal. The appraisal valued the property at $340,000. The trial court then ordered that the 75% owner could pay 25% of the appraised value to the partitioning party and buy out its interest.  The partitioning party objected and appealed.

The Court of Appeals reversed the trial court. It did so based on long-standing Tennessee law which prohibits a Tennessee court, in a partition case, from divesting property out of one co-owner and placing it in another. In Tennessee, as the Court of Appeals pointed out, if a co-owner wants the property sold, it is entitled to a sale.

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In many Tennessee cases involving written contracts, the contracts will contain provisions whereby the parties agreed that the substantive law of a state other than Tennessee would apply in any litigation between them. (In the absence of such a provision, Tennessee follows the rule of lex loci contractus whereby it is presumed that the law of the state where the contract was signed applies).  Since there is substantial similarity between the laws of the States, especially the common law of breach of contract, which State’s law applies may not make a big difference in most cases. It can, however, make a big difference in some cases.

Where the parties have agreed that the law of a particular state will govern any litigation, a Tennessee court will enforce that agreement unless the jurisdiction whose law is chosen does not bear a material connection to the transaction or unless the law of the jurisdiction chosen is contrary to the fundamental policies of Tennessee. This blog focuses on the issue of when a Tennessee court might not enforce a choice of law provision because the law of the state chosen by the parties does not bear a material connection to the transaction.

There is scant published Tennessee case law that addresses this issue. In a 1931 opinion, Manufacturers Finance Co. v. B. L. Johnson & Co., 15 Tenn. App. 236, the Court of Appeals of Tennessee refused to apply the law of Delaware, which the parties had agreed would govern any dispute between them. In that case, the plaintiff was a finance company organized under Delaware law, but which had a principal place of business in Maryland.  The defendant was a Tennessee corporation with a principal place of business in Knoxville.  No part of the disputed transaction touched Delaware.  The court held that it would not apply Delaware law under those circumstances.

In a 2012 breach of contract case, the Tennessee Court of Appeals enforced a contractual provision whereby the law of Kentucky was to govern any litigation between the parties. In that case, the prospective buyer claimed that it was entitled to a refund of an earnest money deposit it had made to purchase land located in Kentucky from the seller. In that case, the buyer was from Tennessee, but the sellers were from Kentucky and the land being sold was in Kentucky.  Under those facts, the court held that there was a material connection between Kentucky and the transaction being litigated.

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In a recent Tennessee real estate case involving the sale of a lot, the plaintiffs/buyers alleged that the defendants/sellers made misrepresentations that the lot would have the ability to connect to the sewer. Not only did the court order that the real estate contract be set aside and that the buyers be refunded the full purchase price, but also, it awarded the buyers their attorney’s fees under the Tennessee Consumer Protection Act (“TCPA”).

Here are the key facts:

  • The buyers (a husband and wife) were interested in buying a lot, for investment purposes, in a development called the Preserve at English Mountain
  • An agent for the real estate agency which had the exclusive listing for the Preserve showed the husband buyer the lot in early June of 2006
  • Husband buyer testified that the agent who showed him the lot represented that the lot would be able to connect to the sewer
  • The agent disputed that she had told the husband buyer this
  • It was undisputed that, when husband buyer visited the lot, there was a sewer manhole cover adjacent to the property
  • It was also undisputed that, at the time the husband buyer viewed the lot, the MLS listing clearly stated that the lot had sewer and that the website set up for the Preserve stated that each lot had city sewer
  • On June 8, 2006, unbeknownst to the buyers until three years later, the county health department had issued a certification for the lot, but only for a septic system serving a maximum of two bedrooms
  • On June 16, 2006, the buyers signed a contract for $124,000 to buy the lot
  • The sale was closed on June 30, 2006
  • At the closing, the buyers signed a disclosure statement indicating that the lot did not have public sewer
  • Three years after closing, the buyers discovered that any house to be built on the property was limited to two bedrooms

The buyers filed a misrepresentation lawsuit. They alleged that they would never have purchased the lot had they known that any house to be built on it had to be limited to two bedrooms. The buyers sought to have the real estate contract rescinded and for their purchase money to be returned.

The trial court held for the buyers. It also held that the buyers were entitled to attorney’s fees under the TCPA because the agent who signed as agent for the buyers failed to disclose that he had an ownership interest in the LLC which sold the lot to buyers.

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In 1977, the Tennessee Consumer Protection Act was enacted. In 2011, the legislature of Tennessee modified it significantly. Here are some basic points to remember with respect to potential Tennessee Consumer Protection Act lawsuits:

  1. Since 2011, a party cannot bring a private cause of action for acts and practices which fall under the catch-all provision of T.C.A. §47-18-104(27).  The TCPA contains a laundry list of fairly specific acts or practices which are per se unfair and deceptive.  It also contains a catch-all subdivision which declares that “any other act or practice which is deceptive” is actionable.  In many cases, in my experience, it is difficult to shoe horn the conduct at issue into one of the defined unfair acts and practices.  In such cases, the catch-all provision may be the only avenue for a client to achieve the relief provided by the TCPA.  In 2011, however, the TCPA was revised to prohibit a private cause of action under the catch-all provision.  There are still other provisions for which a private cause of action is available, which are somewhat broad and which may fit a client’s case, particularly, T.C.A. §47-18-104(5)(7) and (19).
  2. The statute of limitations for lawsuits under the Tennessee Consumer Protection Act is one year. The one year period begins running from “a person’s discovery of the unlawful act or practice.”  Beware that a defendant can argue that the statute began running when a person had constructive knowledge of the act or practice. A plaintiff has constructive knowledge when the plaintiff is aware of facts which would put a reasonable person on notice that the plaintiff has suffered an injury because of the wrongful conduct and knows the identity of the entity or person who engaged in that conduct.  When a plaintiff had constructive knowledge is a question of fact to be decided by the jury, if a jury has been demanded.  There is an absolute outer limit, or statute of repose, for the filing of TCPA claims of 5 years after the date of the transaction which is the basis of the lawsuit.
  3. To recover under the Tennessee Consumer Act, a plaintiff has to show more than just an unfair or deceptive act or practice: A plaintiff must show that he or she suffered an ascertainable loss as the result of the act or practice. In other words, consistent with the common law tort claims for fraud and negligent misrepresentation, a plaintiff in a consumer protection lawsuit must show that the conduct at issue caused him or her damages.  The question of whether or not there has been an ascertainable loss, and the amount thereof, is a question of fact for the jury where a jury has been demanded.
  4. The Tennessee Consumer Protection Act can no longer be used as a cause of action against an insurance company.  In 2011, T.C.A. §56-8-113 became effective and it prohibits the use of the TCPA against insurance companies.
  5. A plaintiff cannot recover both treble damages under the TCPA and punitive damages for a common law claim which relates to the same conduct. Plaintiffs typically combine a TCPA cause of action with a common law cause of action like fraud.  Punitive damages are not available under the TCPA, but a court may treble the amount of any damages awarded by the jury under the TCPA.  If a plaintiff recovers punitive damages under a common law claim and treble damages under the TCPA, the plaintiff must then elect which award to take (which is a no brainer decision).
  6. The TCPA cannot be used against someone who has been engaged in the isolated sale of real estate. If you buy a home or other real estate from someone who you believe made a misrepresentation or who failed to disclose a material defect, and that person is not in the real estate business and does not frequently sell real estate, you may have common law causes of action and other statutory causes of action against that person, but it is unlikely you have a viable TCPA claim against them.  (The same cannot be said for real estate agents and agencies.)
  7. The TCPA applies to acts or practices in connection with the marketing or sale of securities.
  8. Under the TCPA, a court may award a successful plaintiff attorney’s fees.  

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In a recent Tennessee partition case, the Court of Appeals of Tennessee reversed the trial court’s finding that the plaintiff did not have an interest in the farm which he sought to partition by sale. The trial court held that, even though the plaintiff was listed as a joint tenant on the deed to the property, he had no interest based on the theories of title by prescription, and unjust enrichment and based on Tenn. Code Annotated §28-2-110 (the statute which prevents someone from bringing an action to assert title to property if that person has not paid property taxes for more than 20 years).

Here are the key facts:

  • Defendants, the parents of the plaintiff (“Parents”), owned several separate tracts of farmland as joint tenants in common (also sometimes referred to as “co-tenants”) with their sons — Plaintiff and his brother
  • Plaintiff sought to partition several tracts of the farmland
  • The tract known as the McLemoresville Farm (the “Farm”) was the subject of the appeal
  • In 1979, Parents had executed a deed transferring to Plaintiff and his brother a one-fourth interest each in the Farm
  • The purchase of the Farm had been financed, and Parents, Plaintiff and his brother had all signed the deed of trust which secured the loan
  • Only parents signed the note for the Farm, and they paid all of the payments
  • In addition to the loan payments, Parents paid all property taxes and other expenses related to the Farm for nearly 30 years
  • All parties agreed that Parents, Plaintiff and Plaintiff’s brother farmed harmoniously on the Farm, and on other jointly owned tracts, for years and until Plaintiff filed the partition lawsuit

The trial court held that Plaintiff could not partition the Farm because only parents had an ownership interest in the Farm for three reasons: (1) Tenn. Code Ann. §28-2-110 barred Plaintiff from asserting any ownership in the Farm; (2) Parents had obtained title by prescription to all interest in the Farm; and (3) Parents were entitled to exclusive ownership of the Farm based on the theory of unjust enrichment. The court of appeals reversed the trial court on all three holdings.

Tenn. Code Ann. §28-2-110 provides that no one may bring an action to claim title to land if that person has failed to pay property taxes for more than 20 years. The court of appeals held that the statute did not apply to Plaintiff because the Supreme Court of Tennessee has held that the statute does not bar a lawsuit by one joint tenant against another unless the plaintiff in such a lawsuit was ousted by the other joint tenant.  Because Plaintiff and Parents had cooperatively farmed the Farm for many years, there was no ouster and, therefore, the statute did not apply.

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The Tennessee Statute of Frauds requires several types of contracts to be memorialized in a writing (or combination of writings) and signed in order to be enforceable. The three most important types of contracts covered by the Statute of Frauds, at least from a commercial standpoint, are contracts for the sale of land and leases longer than one year; agreements to pay the debts of another; and contracts that cannot possibly be performed within one year.

If a contract is covered by the Statute, does a modification of that contract also have to meet the requirements of the Statute? There is Tennessee case law to support that argument.  The case of Davidson v. Wilson is such a case, and one that demonstrates the ability of the Statute of Frauds to cause what many would describe as an inequitable result in a breach of contract case.

Here are the key facts of that case:

  • Buyer and Seller entered into a written contract providing that Seller would sell a specific 50 acre tract to Buyers for $124,750
  • The closing date for the sale in the written contract was December 5, 2005
  • On the closing date of December 5, the Seller sent, by U.S. mail, a warranty deed to the Buyers
  • The warranty deed recited that the tract was 50 acres “more or less”
  • The warranty deed also provided that the legal description of the tract was provided “without the benefit of a survey”
  • Buyers were concerned, as they should have been, about the deed
  • According to Buyers, after they received the deed, they had numerous conversations with the Seller which resulted in an oral modification of the terms of the written contract
  • According to Buyers, the oral modification was an agreement to extend the closing date until the Buyers had obtained a survey
  • The Seller denied that any such agreement modifying the written contract had been reached
  • The facts of the case strongly compelled the conclusion reached by the trial court: That the Seller’s version of events was not credible and that he had taken the position that the Buyers had breached by not closing on time only after he was able to obtain a contract for a significantly higher price for the tract from a third party

The Court of Appeals of Tennessee reversed the trial court. It did not challenge the trial court’s findings about the respective testimony of the litigants. It held that, since the alleged oral agreement changed the “essential terms” of the contract, it had to be in a writing which complied with the Statute of Frauds.

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In condemnation cases, it is understandable that a landowner would want a jury to be able to consider the value of the landowner’s property based on its highest and best use. For example, if the landowner’s property is uniquely situated such that a party wanting to construct a hotel on it would likely pay significantly more for it than any other buyer, the landowner would probably do better at trial if an expert appraiser was able to base his or her valuation on the amount that a buyer wanting to construct a hotel on it would pay for the property.  While such an approach to valuation would certainly favor a landowner in many cases, under Tennessee condemnation law, such an approach is not allowed. That has long been the rule in Tennessee eminent domain cases.

To see how this rule can play out to the detriment of a landowner, consider the recent case of Ocoee Utility District of Bradley and Polk Counties v. The Wildwood Company, Inc. (Sept. 2016).  Here are the key facts:

  • The Landowners owned land with springs which could provide a water source for the condemning authority, the Utility District
  • The Utility District’s appraiser had appraised the property being taken at $21,500
  • The Utility District offered to buy the property for $35,000
  • The Landowners retained, as an expert witness, a commercial appraiser who valued the property at $417,000
  • To arrive at the $417,000 figure, the appraiser testified, in his deposition, that the highest and best use of the property was for the sale of water and that his valuation involved an analysis of the income which could be generated from the sale of water from the property
  • The expert appraiser testified that he based his valuation of fair market value on the rental income that the Landowners could generate by leasing the water rights and acknowledged that his “rental rate is based on water.”
  • The appraiser also testified that his value was based on what rate the Utility District was willing to pay for the water rights
  • The jury returned a verdict for the Landowners in the amount of $417,000

The Court of Appeals of Tennessee set aside the jury verdict. It held that the testimony of the Landowners’ appraiser should have been excluded at trial.

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Last week’s blog dealt with the role of the Statute of Frauds in Tennessee real estate litigation.  The statute of frauds requires that contracts for the sale of real estate be memorialized by a writing or by a combination of writings which the court determines sufficiently describe the property conveyed.

Here are some cases, and a brief summary of their facts, where Tennessee courts have held that the writing(s) at issue was insufficient to comply with the statute of frauds:

Gorbics v. Close, 722 S.W.2d 672 (Tenn. Ct. App. 1986): A writing which described the property to be conveyed as follows: “a one acre tract of land on the northwest corner of my land. . . .”

Baliles v. Cities Service Co., 578 S.W.2d 621 (Tenn. 1979): A writing which described the property as “lots 99 and 100 in Cherokee Hills” was insufficient.

Massey v. Hardcastle, 753 S.W.2d 127 (Tenn. Ct. App. 1988): Seller had paper with address of the property to be sold at the top of the paper which purported to memorialize agreement for sale of real estate. At the bottom, the paper stated that “seller will transfer its tenantcy [sic] to the buyer,” but did not further identify the tenancy to be transferred.

Here are some cases, and a brief summary of their facts, where Tennessee courts have held that the writing(s) at issue was sufficient to comply with the statute of frauds:

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