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February 23, 2010 | Erin Herbold

A homeowner purchased their property subject to an existing easement agreement for one of the homeowners to have access to their garage through the driveway on the other’s property. This was termed the “Drive and Landscaping Easement.” The grantee of the easement was entitled to use the “westernmost thirty feet” of the adjacent lot for driveway and landscaping purposes. The easement required that the grantee was responsible for the maintenance of the driveway and the landscaping.

Family settlement agreements are arrangements made between heirs to distribute property differently than under a will. This allows beneficiaries, typically family members, to divide property as they see fit. Thus, in this way, family members do not always have to accept the provisions of a will if all of the beneficiaries sign off on settlement. In this case, the Iowa Court of Appeals was asked to interpret the provisions of a will and an accompanying family settlement agreement. 

Iowa Code §6B.3(3) requires notice of a condemnation proceeding, even to parties without a current interest in the subject property.  In addition, a determination of the damages owed to the property owner for the condemnation must be made within 120 days of the filing of condemnation proceedings. If the governmental entity seeking condemnation fails to comply with the 120 day rule, the proceedings are terminated and a new condemnation proceeding must be filed. 

March 1, 2010 | Erin Herbold

At issue in this case was the question of whether a real estate agent owes a home seller notice of the buyer’s financial situation.  Under the facts of the case, the seller listed her home with a licensed real estate agent. Before the sale, she purchased a new lot and began constructing a new home. Because her prior home had not sold, she obtained a bridge loan from a local bank. Under the terms of the loan, she would make interest-only payments until the sale of the first home.

This case concerns an owner of a corner lot located in a private subdivision that was zoned agricultural. The county zoning administrator and county Board of Adjustment determined that the lot needed to have a side-yard setback of thirty feet. The zoning ordinance in question was adopted by the county in 1984 and specified that any residence was to have a side-yard setback for access- corner lots had a thirty foot setback. The property owner disagreed with the setback rules and constructed a home on the lot that did not comply with the ordinance. 

In this case, farmers owned agricultural property and obtained a first mortgage on the property in 1988. A second mortgage with FSA followed in 1994. In 2000, the farmers again borrowed $182,000 from another bank and an additional $200,000 from FSA.  Ultimately, the farmers defaulted on the loans and one of the banks filed a petition for foreclosure which was granted against the mortgaged premises in the amount of approximately $232,000. The court established the order of priority of the existing mortgages. The farmers appealed, but the appeal was not filed within the statutory time-frame.

Typically, attorney’s fees incurred in successfully defending title to property are awarded as part of an overall damages award if the fees are “necessary and reasonable.” However, the “warrantor” of the title (seller) must be notified of the court proceedings and be given the opportunity to defend the warranty.  

Here, the parties entered into a ten-year farm lease agreement. Seven years into the agreement the landlord died and the executors failed to notify the tenants by mail (as required by Iowa law, creditors of an estate are entitled to notice) of the probate proceedings. The estate was closed and the landlord’s children inherited the farmland. A year later, the tenants notified the children that they were exercising their option to purchase the farmland. The children responded that they had no knowledge of the existence of an option contract.

This case stems from a change in the coal-mining industry in Iowa.  Here, an Iowa coal mining company and the county where the mining operation was located had strained business relations for several decades. When the coal mining industry became less lucrative as competition grew in the mid-1980’s, the mining company attempted to add new business ventures, such as a landfill operation, to their strip mining activities.

Iowa’s Real Estate Disclosure Act (Iowa Code Ch. 558A) requires real estate sellers to disclose “significant defects in the structural integrity of the structure” to prospective buyers. If the seller fails to make the requisite disclosure, they are liable to the buyer for the amount of “actual damages” suffered if they had actual knowledge of the inaccuracy or failed to exercise ordinary care in obtaining information regarding structural defects. 

Here, buyers purchased a home from a builder in 2001. Six years later, the buyers sued the builder, alleging that the home was defectively constructed. They sought damages for breach of contract, fraud and breach of an implied warranty of workmanship. 

In this case, a plumbing company sued a homeowner for fraud and breach of a settlement agreement. The plumbing work was not performed in accordance with the homeowner’s wishes and he refused to pay the plumbing company. The parties entered into the settlement agreement to avoid further litigation after the plumbing company installed plumbing, heating, ventilation, ductwork, and radiant in-floor heating systems worth several thousand dollars.

This case involves an old railroad right-of-way. In 1991, the plaintiffs purchased a tract of land adjoining the right-of-way. In a separate transaction, they purchased the portion of the right-of-way that abutted their property, along with an easement for ingress and egress across a portion of the right-of-way to the southwest of their property. In 1996, the defendants purchased the property southwest of the plaintiff’s property. When the defendants purchased the property, they saw no evidence of use of their property for ingress and egress.

“Chain of title” is a collection of documents used to find the true owner of a parcel of real estate. Sometimes, the “chain” has weak links and this case exemplifies the pitfalls of transferring title when multiple parties are involved. 

July 29, 2010 | Erin Herbold

This case involves legal issues arising from residential home sale transaction.  The parties signed a purchase agreement requiring the seller to pay “reasonable attorney fees” if the seller failed to disclose material defects in the property of which they had actual knowledge or should have found out about upon an inspection and the buyer prevailed at trial as to any resulting damages from the non-disclosure. Indeed, the seller failed to disclose a significant water problem in the basement, and the buyers filed sued for damages and attorney’s fees.

In this case, the Iowa Court of Appeals once again examined mortgage foreclosure issues- this time discussing purchase money mortgages and spousal rights. The Iowa Code (§633.211) provides that if a decedent dies without a will leaving a surviving spouse, the surviving spouse shall receive the value of all real property possessed by the decedent during the marriage.

August 31, 2010 | Erin Herbold

For property tax appeals, most Iowa counties utilize an administrative system.  First, the property owner asserting an unfair property tax assessment by the county assessor’s office appeals to the county board of review.   If not satisfied with the result there, the property owner may appeal to the Iowa Property Assessment Appeal Board (PAAB).

Most towns and cities in Iowa have enacted city ordinances addressing the keeping of certain types of livestock within city limits. However, there is a doctrine called “prior nonconforming use” that protects those property owners that have historically kept livestock on their land before the enactment of the ordinances or before the annexation of their land.

September 7, 2010 | Erin Herbold

In Iowa, an easement can be created either by express grant or reservation in a deed , by prescription, (3) by necessity or by implication. 

The defendants were retired real estate agents who, in 2006, contacted several realtors and expressed an interest in selling their own home.  One of the realtors worked with the same agency the defendants used to be associated with.  She suggested that the home should list at $1.25 to $1.3 million. The defendants told her she was “crazy” and that their home was worth far more money. The realtor refused to take the listing.  The defendants later apologized and the realtor decided to take the listing at a price of $1.37 million.

November 15, 2010 | Erin Herbold

In this case, a real estate developer appeals a trial court’s decision to value certain lots at fair market value and not use an “absorption discount.”  The developer argued that the court should have accounted for expert testimony supporting a discount of 20-33% from market value due to the time it would take to sell the lots.  But, the Iowa Court of Appeals upheld the trial court’s determination that a discount of this kind is not an “economically sound concept.” 

In this case, the Iowa Court of Appeals found that an adjacent landowner successfully established acquiescence over a 1.3 acre triangular piece of farmland. Here, the small triangular piece of land was separated from the rest of the field by a county road. The plaintiffs purchased the entire 365 acre tract of land in 2001. Upon purchase, the legal description was somewhat vague and the plaintiffs assumed that the road was the boundary.  Also in 2001, the defendant purchased the land surrounding the triangular tract in 2001.

Iowa Code § 441.21(1)(d), sets forth the manner for valuing taxable property in Iowa.  Part of that Code section states that “actual value of property in one assessing jurisdiction shall be equalized as compared with actual value of property in an adjoining assessing jurisdiction. If a variation of 5% or more exists between the actual values of similar, closely adjacent property in adjoining assessing jurisdictions in Iowa, the assessors thereof shall determine whether adequate reasons exist for such variation.

December 30, 2010 | Erin Herbold

In this case, the plaintiff sought a reversal of the trial court’s opinion that she did not have an easement by implication over her neighbor’s property.   The parties own adjoining parcels of land. A steep, wooded bluff divides the plaintiff’s property and for several years she used a gravel road running across the defendant’s property to access the rear portion of her land. The plaintiff argued that the land was inaccessible by vehicle without the use of the gravel road and that she was entitled to an easement by implication in the gravel road.

In 2002, the defendant and his wife gave a mortgage on the property in question to another bank. The mortgage was foreclosed on in 2008 and the court issued a special execution for a sheriff’s sale of the property, upon the expiration of six months from the entry of the decree of foreclosure (the defendants had six months to redeem the property). The plaintiff bank purchased the property at the sheriff’s sale and the deed issued immediately. However, the defendant had not yet left the premises. The bank filed a petition for forcible entry and detainer against the defendant.

In this mortgage foreclosure case, the mortgagors argued that the mortgage agreement was invalid because only one spouse signed it.  In 2007, the husband executed a promissory note with a bank in the principal amount of $100,000. The same day he signed a purchase money mortgage agreement with the bank.  His wife never signed the mortgage. In 2009, the bank foreclosed against the couple. The husband responded, stating that the property was their homestead and the mortgage was invalid, because the wife never signed. The wife never responded to the court’s inquiries and filings.

March 30, 2011 | Erin Herbold

The family feud, in this case, began in 2007 when a sister (the executor of her brother’s estate) filed a petition seeking a judgment that she and her brother’s estate had title to an 80-acre tract of farmland.  Before the dispute, the parcel had been conditionally deeded to the brother by his parents, if he fulfilled the conditions of a five-year contract with his parents. The contract required that the brother refrain from drinking alcohol, care for the property and make the payments on the existing mortgage. The son never met these conditions.

Iowa law provides for various protections against fraud.  But, is there a provision governing contracts for the construction of personal residences?  The plaintiff in this case claimed that there was.  Indeed, the plaintiff claimed that Iowa Code §714H.5 which provides that a “consumer who suffers an ascertainable loss of money or property as the result of a prohibited practice or act in violation of this chapter may bring an action at law to recover actual damages” applies to personal residence construction contracts.  The trial court said the statute did not apply.  

The plaintiffs entered into a contract to sell the property at issue to a buyer in 1989. The buyer paid the full amount, but the sellers never recorded a “satisfaction of contract” or issued a deed to the buyer. In 2007, the defendants bought the property at a tax sale and were issued a “tax sale certificate.” In 2009, the current possessors were notified of their right to redeem, but the plaintiffs were never notified. Thus, the county treasurer issued a tax deed to the defendants in 2009. Upon learning of this, the plaintiffs filed an action to set aside the tax deed.

July 16, 2011 | Erin C. Herbold-Swalwell

Hedge-to-arrive” commodities contracts are commonly used in futures trading. At the time the contract is signed, the futures price is locked in but the basis is not yet set. Generally, sellers of grain enter into a HTA when they believe the futures price is high and about to drop. Here, a farm corporation entered into four separate HTA’s with a local ag supplier/grain merchandiser in 2006.  In 2007, the owners of the corporation (husband and wife) secured a line of credit from the supplier to finance their farming operations.

August 11, 2011 | Erin C. Herbold-Swalwell

Here, a son was appointed executor of his father’s estate and was also the sole heir. He contacted a real estate agent regarding the sale of 40-acre tracts of land the estate owned. In order to avoid capital gains taxes, the son wanted to sell the land for $2000/acre (the value listed in the estate’s inventory). The agent facilitated the sale of four tracts to the defendants. In 2005, an attorney discovered some oddities in the executor’s financial records, including checks payable to individuals, totaling more than $200,000.

August 27, 2011 | Erin C. Herbold-Swalwell

The petitioners in this case purchased an apartment building and decided to remodel the second floor and attach an enclosed staircase resting on the roof of a garage located behind the apartment building. The petitioners assumed that they were entitled to use the garage, because the prior owners had used it. Unfortunately, the garage encroached onto the property of the respondents- adjacent landowners to the south. 

August 27, 2011 | Erin C. Herbold-Swalwell

Twenty years ago, a landowner developed plans for a “high-end residential housing project.” The developer entered into a written development agreement with the city to proceed with construction and make improvements to the properties to make the development fit for residential housing. Under the agreement, the city agreed to install sewer and water lines and surface the entire street, with the cost of the street improvements assessed to the adjoining property owners.

In this case, the question before the Iowa Supreme Court was whether a court order dismissing a claim reveals the court’s intent to preserve a claim arising out of the same transaction pending in another lawsuit, and whether the claim in the other lawsuit should be allowed to proceed.

October 5, 2011 | Erin Herbold-Swalwell

Here, adjoining landowners settled a boundary line dispute in 2009 and the settlement was approved by the district court. Under the settlement, the landowners designated a marker to establish one point of a north-south boundary.

When a case involves no dispute over the facts, and the parties admit everything necessary for a judgment, the court is able to make a decision without too much trouble.  That pretty much sums up this case.  Here, a plumbing contractor filed a petition to foreclose on a filed and recorded mechanic’s lien in the amount of $5,000 plus interest for work he did on a house owned by the defendant and the defendant’s late brother.  The defendant admitted that he owned the house, that the work was done by the contractor, and that the defendant and his brother hired the contractor to do the work.

A property owner asked the court to agree that a fifteen-foot “driveway easement” across his lot no longer existed based on three possible theories:  (1) the original purpose for granting the easement had been extinguished; (2) the easement had been abandoned; and (3) the easement was removed by mutual agreement of the property owners. However, the trial court found that the property owner did not prove any of his theories and upheld the continued validity of the easement. On appeal, the court affirmed the trial court’s decision that the easement on the property had not been vacated. 

April 3, 2012 | Erika Eckley

If a contract for the sale of a specific property is breached by the seller, a buyer may obtain possession of the goods by court order. This remedy is known as specific performance.  In a recent Iowa case, the long-time tenant thought he had a valid contract to purchase agricultural land.  He sued to enforce the alleged contract.  The court disagreed, finding he did not have an enforceable contract entitling him to specific performance.

A mechanic’s lien is a claim created by law for the purpose of securing priority of payment for the price or value of work performed and materials furnished to improve real property. The lien attaches to the real property. Iowa Code Chapter 572 controls mechanic’s liens in Iowa. In a recent Iowa case, the court had to determine what amounts could be recovered when a mechanic’s lien is foreclosed for a contract that was not completed. 

Two recent Iowa cases point out that when details of intentions concerning the use and responsibilities between parties affecting land are not explicitly written out, disputes can occur upon change in ownership and control of that land. That is precisely what happened in the following cases. The parties and facts are the same for both cases.

Mechanic’s liens are created by statute.  One type of lien provides security to persons who supply labor or materials for construction or improvement of buildings independent of contractual rights. The lien is against the property upon which the work was performed. Mechanic’s liens can be enforced through a foreclosure of the lien in court. In order to enforce a mechanic’s lien, however, the construction work must have been substantially performed. A lienholder that substantially performs is entitled to the contract price minus the reasonable damages from slight defects in performance. 

In Iowa, when owners of adjacent property have treated certain objects as the recognized boundaries for more than 10 years, the recognized boundaries become the actual boundaries regardless of what subsequent surveys may show.  In this case, neighbors ran into issues when one party decided to change the established boundaries after acquiring an old survey.

Adverse possession requires open, hostile, actual, exclusive and continuous possession of property under a claim of title for at least ten years. The burden is on the party seeking to establish title through adverse possession to establish this possession by clear proof.

Drainage districts in Iowa are authorized under the Iowa Constitution. A county board of supervisors has the authority to establish a drainage district when it would be conducive to public health, convenience, or welfare. The power of drainage districts once they have been established is strictly proscribed through statute. Boards of supervisors must continue to maintain districts, plan projects, and fund the activities in a manner consistent with the statute. They are given discretion to make these decisions.

In order to establish claim to disputed property on a boundary by acquiescence theory, Iowa law requires evidence that adjoining landowners recognize, acknowledge, and affirmatively treat a definite boundary line as the true boundary for a period of ten years or more. In the following case, the defendants were unable to offer proof of either a definitive boundary line or any mutual recognition the boundary was where they claimed. As a result, the court declined to adjust the boundary between the plaintiffs’ property and the defendants’.

Zoning ordinances help ensure appropriate location and use of buildings, structures, and land for purposes of trade, industry, residences, or other purposes. Zoning restrictions cannot be unreasonable and should be utilized for the community’s welfare. If aggrieved by an ordinance or the application of one, landowners may petition for review through the judicial process. In the following case, the petitioners were found to be in violation of an ordinance, but they believed it was not being interpreted correctly and sought judicial review.

October 12, 2012 | Erika Eckley

This appeal is the third installment of the ongoing saga of the horse named Velvet’s plight to find decent housing within the city of Johnston. The controversy has been ongoing since 2001 when Velvet’s owner tried to work with the city to rebuild her home that was destroyed. Velvet’s plight is a case study in why the doctrine of issue preclusion exists, but how it can be wrongly applied to create an illogical result.

A famous case decided by the Iowa Supreme Court in 1971 illustrates that an individual is not privileged to use force in defending property in excess of that reasonably believed to be necessary and cannot use such force as is likely to lead to great bodily injury or death. However, an individual can exert force that is likely to take a life if the person has a reasonable belief that their own life may be taken if they don’t act. But, what about insurance coverage in such a situation? That was the issue in this case.

December 29, 2009 | Roger McEowen

Insurance companies make money by paying out less in claims than they receive in premiums.  That result is achieved by careful drafting of language in the insurance policy by the company’s lawyers, and artful lawyering over the finer points of the meaning of that language.  This case is a clear illustration of both of those points.

Most insurance policies contain clauses excluding coverage for certain conditions. In policies insuring hog operations, specifically, many policies exclude coverage for loss of livestock due to suffocation. Here, a hog farmer filed a claim with his insurer relating to the death of several hogs in confinement. The farmer claimed that the hogs died because an ice storm caused the curtains on the building to remain closed, thereby cutting off ventilation for the hogs.

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