Alexander Queen, v. Woodbury Green Condo. Assoc., (Mich. Ct. App. Dec. 2022)
BACKGROUND: Homeowner Alexander Queen sues Woodbury Green Condominium Association in this property dispute involving an alleged prescriptive easement for access to Queen’s garage.
EVIDENCE: Queen bought the property in December 2020. The prior owner had purchased the property in June 1989. Queen claimed that, since 1989 or perhaps even 1965, the property has maintained street access via a gravel driveway, which connects the garage located behind Queen’s home to Woodbury Drive. But first, the driveway crossed the private property of Woodbury, which had never objected to the use, and where there was a curb cut on Woodbury allowing for the driveway. In November 2020, before Queen bought the property, the seller had been notified by Woodbury Green that they must pay for access and there was no easement or other agreement on record and that access was being removed. The seller completed the sale to Queen and Queen sued for prescriptive easement access.
COURT RULING: The Court reviewed that “an easement by prescription results from use of another’s property that is open, notorious, adverse, and continuous for a period of [15] years.” A party claiming a prescriptive easement is required to prove these elements by “clear and cogent proof.” “Adverse or hostile use is use that is inconsistent with the right of the owner, without permission asked or given, that would entitle the owner to a cause of action against the intruder for trespassing.” “Mere permissive use of another’s property, however, will not create a prescriptive easement.” In applying the law, the Court was troubled by the curb cut, and reasoned that “we can think of no other reason why one would construct a curb cut in front of the gravel driveway unless it was to permit access to Woodbury Drive from the garage.” Further, Woodbury’s letter to the seller stated that Woodbury was “removing access” from the seller’s property, which indicated that Woodbury had previously granted the permission to access across its land. Thus Woodbury Green wins and access is denied.
Dolly Investments, LLC v. MMG Sioux City, LLC, (Iowa Sup. St., Jan. 2023)
BACKGROUND: Commercial Landlord, Dolly, brought action against restaurant tenant, MMG, for breach of contract and sought damages for unpaid rent, future rent, etc. Tenant counterclaimed for breach of contract and conversion of Tenant personal property.
EVIDENCE: The restaurant lease, for a Golden Corral in Iowa, required monthly rent of $18,750. The triple net lease contained extensive default provisions as to Tenant breach, including a provision that upon failure to pay rent, the Landlord was obligated to send a written notice upon breach within 15 days. After that, the Tenant’s failure to cure would constitute a “default.” Upon default, Landlord could re-enter, expel the Tenant and re-lease the property. Tenant struggled with rent and missed payments. Landlord was distant, in California. Upon a missed payment, Landlord traveled to the property to investigate. When they arrived, they found the Property in squalor, closed and empty of occupants - appearing abandoned, On that day, without notice to Tenant, Landlord changed the locks and secured the property. After ensuing back and forth, Landlord sued for breach of lease, and Tenant sued for breach of lease having not received any notice per the lease.
COURT RULING: The Court recognized that in a typical landlord-tenant case, changing the locks on a tenant would deprive the tenant of the all-import benefit of use and enjoyment of the leased premises. But here the evidence supported a determination that Tenant had already abandoned the building, and thus renounced its intention to operate the restaurant, removed everything down to the electrical wires from the office space, and allowed the building to fall into squalor. The evidence about the building’s condition, such as from the chips and cracks to the grease, stench, and scattered refuse, convincingly proved that Tenant had no intent to continue to operate a restaurant and therefore lost no benefit when Landlord changed locks. Court finds that both parties breached, but that Landlord’s duty to perform was discharged upon Tenant stopping rent and abandoning the property, thus constituting a material breach, and allowing Landlord to waive its obligation to perform as to notice.
Saunders Ventures, Inc. v. Catcove Grp., Inc., (N.Y. Sup. Ct., May 2022)
BACKGROUND: A real estate brokerage firm seeks to recover damages for breach of contract on a listing agreement and commission dispute with Defendants upon sale of property.
EVIDENCE: Defendant owned environmentally sensitive properties that were on a “master list” maintained by the County of properties identified for preservation. As is done for all properties that were on a “master list,” the County sent a letter dated March 2008, to the defendant, inquiring whether they were interested in participating in the County’s Land Preservation Program by selling the land to them. Defendant responded with interest to the County, but nothing progressed. In July 2009, Defendant hired a Broker through a nonexclusive brokerage agreement to market the subject properties in exchange for a 6% commission. The Broker then contacted a land conservancy and arranged a deal through them that would result in the County buying the property. A contract was written but not signed. In September 2010, Defendant contacted a different land conservancy and completed a sale through them to COunty without the Broker involved. The Broker sued demanding a commission.
COURT RULING: The Court reviewed that to recover a commission, a broker must establish (1) that it is duly licensed, (2) that it had a contract, express or implied, with the party to be charged with paying the commission, and (3) that it was the procuring cause of the sale. To establish that a broker was the procuring cause of a transaction, the broker must establish that there was “a direct and proximate link, as distinguished from one that is indirect and remote” between the bare introduction of the parties to the transaction and the consummation of the sale. That “in order to qualify for a commission, a broker need not have been involved in the ensuing negotiations or in the completion of the sale,” if such a direct and proximate causal link exists. The Court determined that despite the initial interest by Defendant to COunty before hiring the Broker, and the Defendant subsequently selling to someone else that closed the conveyance to the County, that it was not until the Broker began to market the property that any substantive discussions were had with the County, and therefore Broker was the procuring cause. Broker wins.
