Thursday, November 13, 2014

Texas Bona Fide Purchaser: Occupants In Possession & The Duty To Inquire Into Their Unrecorded Rights & Equities

The excerpt below from a 2004 case from a U.S. District Court in San Antonio, Texas may provide a useful primer for making a case under Texas state law on behalf of a homeowner who is in open, exclusive, possession of real estate under unrecorded rights to claim that said possession constitutes notice to subsequent prospective buyers or encumbrancers of any unrecorded rights or equities he/she may have.

The district court, sitting in an appellate capacity (reviewing a ruling emanating from a U.S. Bankruptcy Court in San Antonio), provides an extensive survey and analysis on the Texas case law involving the effect of the bona fide purchaser doctrine to subsequent purchasers and mortgage lenders where one is in possession of land under an unrecorded instrument, and how it was applied to a case where a buyer ("Henderson") who bought and took possession of a home under an oral contract (yeah, an oral contract!) for the purchase of real estate; subsequently, the former owner ("Hayes") (but still-ostensible owner of record) pledged the property as collateral for a loan; lender failed to inspect the property and otherwise made no diligent effort to discover if someone was in possession of the home and, if so, to inquire of the occupant as to any unrecorded rights or equities in the home the occupant may have had.

  • [T]he only issues presented on appeal are whether the nature of Henderson's possession was sufficient to impose a duty of inquiry on the Bank, if so, whether the Bank satisfied the duty, and whether Henderson's lien has priority over the Bank's.

    The Texas Property Code provides for the recording of real property transfers and provides consequences for the failure to record:

    (a) A conveyance of real property or an interest in real property or a mortgage or deed of trust is void as to a creditor or to a subsequent purchaser for a valuable consideration without notice unless the instrument has been acknowledged, sworn to, or proved and filed for record as required by law.

    (b) The unrecorded instrument is binding on a party to the instrument, on the parties' heirs, and on a subsequent purchaser who does not pay a valuable consideration or who has notice of the instrument.

    TEX. PROP. CODE § 13.001.

    Thus, the recording of a deed is not essential to an effective conveyance of title, and an unrecorded instrument is binding on the parties to the instrument, the parties' heirs, and all who have notice of the instrument. However, the law requires the recording of title to land for the protection of innocent purchasers and creditors who act without notice of the prior conveyance.

    Although the statute states that a conveyance is void as to "a creditor," it has long been construed to provide protection only to creditors who have acquired liens without notice of the prior conveyance. Paris Grocer Co. v. Burks, 105 S.W. 174, 175 (Tex. 1907); Omohundro v. Jackson, 36 S.W.3d 677, 682 (Tex. App.-El Paso 2001, no pet.).

    Although Henderson failed to record the conveyance, that failure did not affect the validity of the transaction. Once Henderson paid the consideration for the property and took possession, he became the owner of the superior equitable title to the land, and Hayes was the holder of the naked legal title. See Fed. Life Ins. Co. v. Martin, 157 S.W.2d 149, 152 (Tex. Civ. App.-Texarkana 1941, writ ref'd); Tex. Am. Bank/Levelland v. Resendez, 706 S.W.2d 343, 346 (Tex. App.-Amarillo 1986, no writ).

    Thus, the Bankruptcy Judge correctly found that Henderson had an equitable claim to the property. The question that remains is what the consequence of Henderson's failure to record must be.

    Under the recording statute, an unrecorded conveyance is void as against a subsequent bona fide purchaser or creditor without notice. However, Texas courts have construed the statute strictly as applicable only to "writings that convey an interest in land." Gaona v. Gonzales, 997 S.W.2d 784, 786 (Tex. App.-Austin 1999, no pet.); see also Johnson v. Darr, 272 S.W. 1098, 1101 (Tex. 1925) ("The decisions of this state uniformly hold that the registration statutes do not apply to equitable titles.").

    Thus, where, as here, the parties enter into an oral contract to sell land, and the buyer pays full value, but the seller does not convey a deed, the contract does not fall within the recording statute. Resendez, 706 S.W.2d at 346 (holding that equitable title that results after complete payment under contract for sale of land is not subject to recordation and is outside the scope of the recording statute).

    Nevertheless, the rule under the recording statute is essentially the same as the common-law rule, which protects bona fide purchasers against the assertion of prior unrecorded interests under equitable principles and the doctrine of estoppel. Under the common law, when one with an equitable claim to property allows the naked legal title to remain in the vendor, his equitable rights become inferior to those of an innocent purchaser or mortgagee for value without notice. Martin, 157 S.W.2d at 152; see also Johnson, 272 S.W. at 1101 ("That bona fide purchasers for value are protected against the assertion of [an unrecorded equitable title] is because of the doctrine of estoppel, and not the registration statutes.").

    Thus, the question under either the statute or the common law is whether the Bank had constructive notice of Henderson's prior equitable title. To answer this question, and to determine the scope of the duty of inquiry triggered by such constructive notice, the Court will review the relevant Texas authorities.

    In Collum v. Sanger Brothers, 82 S.W. 459 (Tex. 1904), the Texas Supreme Court considered whether possession of real property by the owner's tenants was notice to a subsequent judgment lien holder. The Court held that it was, stating: "We think it a safe and salutary rule to require of a prospective purchaser of land to ascertain whether any other be in occupancy of it; and, if there be such possession, to go to the possessor and ascertain the nature and extent of his claim. Possession is evidence of title, and, it seems to us, that common prudence and common honesty demand this course. If so, the possession should be notice to him; and, if notice to a purchaser, it is notice to a creditor." Id. at 460.

    However, in 1916, the Court distinguished between the rights of a judgment lien holder and an innocent purchaser for value without notice and emphasized that an innocent purchaser for value without notice is entitled to priority over an unrecorded interest: "A judgment lien holder is not in the same attitude as an innocent purchaser for value without notice. The latter has expended his money in good faith to the amount of the purchase price of the land, and is justly entitled to be held harmless. It is right that the loss under such circumstances should be visited upon the landowner whose negligence, in failing to give notice through the deed records of his ownership, occasioned the loss, rather than that it should fall upon the innocent purchaser who was without fault." First State Bank of Amarillo v. Jones, 183 S.W. 874, 876 (Tex. 1916).[3]

    Thus, in Jones, the Court expressed the long-standing equitable estoppel principle that, as against an innocent party without notice, the loss should fall upon the one whose negligence contributed to the loss.[4] However, one who has actual or constructive notice of a prior sale or contract for the sale of land cannot be an innocent purchaser thereof and cannot claim ignorance of such prior sale as a basis of estoppel against a prior purchaser who has not actually misled the subsequent purchaser. Tex. Consol. Oils v. Bartels, 270 S.W.2d 708, 712 (Tex. Civ. App.-Eastland 1954, writ ref'd).

    Thus, to enjoy the equitable protections of innocent purchaser status, the Bank must demonstrate the absence of notice. See id.; Strong v. Strong, 98 S.W.2d 346, 347 (Tex. 1936); see also Neeley v. Intercity Mgmt. Corp., 623 S.W.2d 942, 953 (Tex. App.-Houston [1st Dist.] 1981, no writ) ("In order for the appellants to establish title superior to the equitable title claimed by the appellees under the unrecorded instruments it was necessary for them to be bona fide purchasers for value without notice of the appellees' claims.").

    As early as 1883, the Texas Supreme Court recognized that "[m]any cases can be found in our reports in which it is said that possession is notice of whatever title the possessor has." Eylar v. Eylar, 60 Tex. 315 (Tex. 1883). In Eylar, the person in possession had conveyed the property to another but intended the conveyance to operate only as a mortgage. [Editor's Note: ie. an equitable mortgage]

    However, the deed was recorded, and the Court had to consider whether the rule of possession as notice would apply to one purchasing the property from the grantee when the person in possession had conveyed the property to the grantee and the conveyance had been recorded. The Court noted that application of the rule should be limited to cases in which the possessor is not knowingly at fault in permitting a deed divesting the possessor of his interest to be recorded or to cases in which the possessor has not voluntarily aided in misleading a purchaser. Id.; see also Ramirez v. Smith, 59 S.W. 258, 260 (Tex. 1900) ("There are cases which, while recognizing the proposition that possession is sufficient to incite inquiry, hold that where the possessor has done something, such as making a deed to another, which is of record, which furnishes a sufficient answer to the inquiry arising, the possession does not impose the duty of further investigation.").

    The Court emphasized that "[t]he policy of the law, as evidenced by our statutes, requires all conveyances of land or interests therein for a term longer than one year to be evidenced by writing" and that the law requires all persons, for the protection of innocent purchasers and creditors, to register their titles to land. Thus, in that case, the purchaser who searched the records of the county and found on record a deed from the person in possession to the person who offers to sell had satisfied the duty of inquiry imposed by the possession. The Court held that the purchaser from the record title holder "was not bound to inquire of the [possessor] what right they had in the land; that the inquiry was sufficiently prosecuted; prosecuted as far as a prudent man, having due regard to the rights of others, and to his own protection, would be bound to prosecute it, when he looked to the record and there found that [the vendor] was declared by the very persons in possession to be the true and absolute owner of the land."[5]

    In 1917, in another case involving a purported conveyance of property by the possessor, the Supreme Court held that the fact of possession by tenants placed a purchaser on inquiry, as a matter of law, as to whether the deeds were absolute or intended only as mortgages. Moore v. Chamberlain, 195 S.W. 1135, 1137 (Tex. 1917).

    In 1990, the Fifth Circuit noted that the reconciling principle between Eylar and Moore was that a purchaser's or lender's duty of inquiry must be "prosecuted as far as a prudent man, having a due regard to the rights of others and to his own protection, would be bound to prosecute it." In the Matter of Rubarts, 896 F.2d 107, 112 (5th Cir. 1990). Thus, the Fifth Circuit held that a prudent lender, in the context of a potential "sham" conveyance like that involved in Eylar and Moore "will not rely upon the representations of husband and wife to the contrary; instead, the lender or purchaser must investigate the circumstances under which the purported sale was made, the status of the purchaser, the arrangements made by the original owners for other housing, or any affirmative actions indicating abandonment." Id.

    Although this case does not involve the same "sham conveyance" scenario as Eylar, Moore, and Rubarts, those cases establish that possession acts as constructive notice of the possessor's claims, which puts upon a potential purchaser or lender a duty of inquiry. The duty of inquiry must be prosecuted as far as a prudent man would be bound to prosecute it. Thus, in the face of a possible sham conveyance where one conveys the land to another but remains in possession, the Fifth Circuit has construed the duty of inquiry to reach so far as to require the lender or purchaser to investigate the circumstances of the sale, the purchaser's status, the arrangements made by the original owners for other housing, or any affirmative actions indicating abandonment. In addition, as discussed below, numerous Texas cases with facts analogous to this one impose a duty of inquiry on a potential purchaser to inquire of one in possession of the property what his rights are.

    In Paris Grocer Co. v. Burks, 105 S.W. 174 (Tex. 1907), the Court recognized the well-settled rule that a creditor's lien would prevail over an unrecorded deed unless the creditor "is affected with notice." Id. at 175. It was equally settled, held the Court,

    that an open, exclusive, and visible possession, maintained by the holder of the unrecorded deed when the right of the creditor attaches, is notice of the right under which it is held. This is so, for the reason that one who seeks to acquire an interest in or with respect to land is expected, in the exercise of common prudence, to learn of a possession held by others than him whose rights he purposes to acquire, and to make inquiry of the possessor as to the nature of the claim under which he holds. Having such opportunities of which prudence dictates that he shall avail himself, one who has omitted to do so will not be heard to deny that he had notice of a fact of the existence of which he was thus put upon inquiry.

    Id. However, the Court also limited the facts that would trigger the duty of inquiry to those in which the possession sufficiently appears to be that of a third person:

    [T]he fundamental fact essential to the application of this doctrine is that of a possession visibly that of some one who is not the person with whom the purchaser or creditor purposes to deal. He is not required to institute inquiries as to the existence of rights of which there is no evidence upon the records, unless there be some fact which he knows or should know sufficient to excite inquiry in the minds of prudent persons. A possession openly that of one other than his debtor or vendor is such a fact; but is a possession sufficient which does not appear to be that of a third person? The reason upon which the doctrine is founded does not warrant an affirmative answer. The authorities lay it down that the possession must be open and visible and unequivocal, meaning that it must be openly, visibly, and unequivocally that of the claimant under the unrecorded instrument. Id.

    Similarly, in 1927, in a writ refused case, the Court stated:

    Generally speaking, possession of real estate "is equivalent to registration" (Mainwarring v. Templeman, 51 Tex. 205), and is constructive notice of the possessor's right or claim, in that, as a matter of law, it puts a purchaser upon inquiry as to the nature of the claim of right of the possessor, and in the absence of proper inquiry the law charges the purchaser with notice of that claim upon the presumption that proper inquiry would disclose it. This rule is elementary.

    Ramirez v. Bell, 298 S.W. 924, 927 (Tex. Civ. App.-Austin 1927, writ ref'd).

    In 1936, the Supreme Court further discussed possession and its relation to a purchaser's inquiry requirement:

    A purchaser of land must search the records, for they are the primary source of information as to title and he is charged with knowledge of the existence and contents of the recorded instruments affecting the title. He must also make inquiry as to the rights or title of the possessor, for possession is equivalent to registration, in that it gives constructive notice of the possessor's rights. "The rationale seems to be, that as the occupant's title is a good one, and as his possession is notorious and exclusive, a purchaser would certainly arrive at the truth upon making any due inquiry. The purchaser cannot say, and cannot be allowed to say, that he made a proper inquiry, and failed to ascertain the truth. The notice, therefore, upon the same motives of expediency, is made as absolute as in the case of a registration." Pomeroy's Equity Jurisprudence (4th Ed.) § 615, Vol. 2, pp. 1166, 1167.

    The value and effectiveness of the registration statutes are to an extent impaired by the rule that possession gives constructive notice of title, but the rule is justified, or at least supported, as suggested by Mr. Pomeroy, by the fact that ordinarily the truth as to title may be readily obtained from the person in possession. ... So it may safely be said that the `character of possession' referred to as constituting constructive notice, with respect to the character of case we have under consideration, must consist of open, visible, and unequivocal acts of occupancy in their nature referable to exclusive dominion over the property, sufficient upon observation to put an intending purchaser on inquiry as to the rights of such possessor; and that ambiguous or equivocal possession which may appear subservient or attributable to the possession of the holder of the legal title is not sufficiently indicative of ownership to impute notice as a matter of law of the unrecorded rights of such possessor. . . . . . . A fact or circumstance, other than facts of record or possession visible and exclusive, will not put a purchaser on inquiry unless it is a fact or circumstance that he knows or should know. In other words, one is not put on inquiry by a fact or circumstance of which he knows nothing, unless it can be said that notice of it is imputed to him as a matter of law. Strong v. Strong, 98 S.W.2d 346, 348 (Tex. 1936).

    Thus, in Strong, the Court noted that open, visible, exclusive, and unequivocal possession would suffice as constructive notice, just as if title had been recorded, and that a purchaser had a duty to inquire as to the possessor's rights, despite the fact that such constructive notice would impair the effectiveness of the registration statutes.

    In 1968, the Supreme Court refused the writ in Aldridge v. N.E. Indep. Sch. Dist., 428 S.W.2d 447 (Tex. Civ. App.-San Antonio 1968, writ ref'd), in which the Court stated, "As a general rule, possession of real estate is equivalent to registration and is constructive notice of the possessor's right or claim, in that, as a matter of law, it puts a purchaser upon inquiry as to the nature of the claim of right of the possessor, and in the absence of proper inquiry the law charges the purchaser with notice of that claim upon the presumption that proper inquiry would disclose it." Id. at 449.

    The Texas Supreme Court recently set forth the same rules in Madison v. Gordon, 39 S.W.3d 604 (Tex. 2001). The Court stated:

    One purchasing land may be charged with constructive notice of an occupant's claims. This implied-notice doctrine applies if a court determines that the purchaser has a duty to ascertain the rights of a third-party possessor. When this duty arises, the purchaser is charged with notice of all the occupant's claims the purchaser might have reasonably discovered on proper inquiry. The duty arises, however, only if the possession is visible, open, exclusive, and unequivocal.

    Id. at 606. The Court noted that in the case of Strong v. Strong, 98 S.W.2d 346 (Tex. 1936), the Court "described the kind of possession sufficient to give constructive notice as `consist[ing] of open, visible, and unequivocal acts of occupancy in their nature referable to exclusive dominion over the property, sufficient upon observation to put an intending purchaser on inquiry as to the rights of such possessor.' Possession that meets these requirements — visible, open, exclusive, and unequivocal possession — affords notice of title equivalent to the constructive notice deed registration affords." Id. at 607.

    Thus, Texas law for over a century has consistently held that visible, open, exclusive, and unequivocal possession is constructive notice of title equivalent to the constructive notice that deed registration affords. Moreover, in addition to the cases cited previously, Texas courts have consistently held that this constructive notice places upon a potential purchaser a duty to inquire as to the possessor's rights. See Ramirez v. Smith, 59 S.W. 258, 260 (Tex. 1900); Tex. Am. Bank/Levelland v. Resendez, 706 S.W.2d 343, 346 (Tex. App.-Amarillo 1986, no writ); Investors Syndicate v. Mayfield, 96 S.W.2d 247, 250 (Tex. Civ. App.-Fort Worth 1936, writ dism'd) (holding that possession placed upon lender a duty of inquiry and that the "simplest inquiry would have disclosed, immediately, the fraud and deceit practiced by Ryan, Inc., and Snebold, and there would have been no renewal note—no deed of trust, and no money paid by appellant").

    The Bank contends that the Bankruptcy Judge erred in concluding as a matter of law that Henderson's possession of the property was open, visible, exclusive, and unequivocal. In Madison v. Gordon, the Texas Supreme Court noted previous cases that seemingly supported the possessor's position that possession alone gives rise to constructive notice, but criticized those cases because they did not mention the requirements that the possession be visible, open, exclusive, and unequivocal. However, the Court acknowledged that, in each of those cases, the occupant lived in a single-unit dwelling. Thus, the Court did not question the ultimate outcome in those cases, noting that an occupant's sole possession of a single-unit dwelling "arguably" implicates visibility, openness, exclusivity, and unequivocality, but stressed that a Court should nevertheless assess the requirements of visibility, openness, exclusivity, and unequivocality. Id. These elements are essential because the doctrine of notice by possession is justified only by possession that would be sufficient upon observation of a subsequent purchaser to put him on inquiry as to the rights of the possessor.

    The Court concludes that the summary-judgment evidence conclusively established that Henderson's possession was open, visible, exclusive, and unequivocal, and that the Bank has failed to create an issue of material fact. The evidence establishes that Henderson occupied the property, a single-unit dwelling, continuously after April 1997, and that Henderson "came and went out of the house as is usual and customary for any person who lives in a house to do." Henderson parked his truck in the driveway and allowed his children and dog in the front yard. Thus, Henderson has shown that his possession was visible and open. No one occupied the property other than Henderson and his family, and thus the possession was exclusive. With regard to unequivocality, the Court concludes that there was nothing equivocal about Henderson's possession, which was continuous from the April 1997 through the time the loan was made, and was not compatible with an ownership claim by Hayes, a woman who purported to be single and using the property as her homestead. Compare Collum, 82 S.W. at 459 (holding that continuous possession of property marked by a fence was sufficient for inquiry notice) and Moore, 195 S.W. at 1137 (holding that possession by tenants of alleged vendors was sufficient to place duty of inquiry as to whether conveyance was absolute or intended only as a mortgage) with Burks, 105 S.W. at 176 (holding that portion of land that was fenced off but used only for garden was too uncertain or equivocal to provide notice) and Boyd v. Orr, 170 S.W.2d 829, 834 (Tex. Civ. App.-Texarkana 1943, writ ref'd) (holding that the fact that minor children were living with their mother, who was the vendor and apparent title holder, is not the character of possession as would constitute constructive notice of their equities arising from the undisclosed fact that their father had paid for a portion of the land with his separate funds).[6]

    The Bank contends that the valuation model and desktop appraisal methods it used, which were within industry standards, did not require physical inspection of the subject real property, However, it is Texas law that imposes a duty of inquiry based on Henderson's open, visible, exclusive, and unequivocal possession, regardless of whether the valuation model chosen by the Bank includes such a requirement. Thus, whether the valuation model or desktop appraisal method chosen by the Bank and the industry requires a physical inspection is not the relevant inquiry. Rather, given that the duty of inquiry was triggered by Henderson's open, visible, exclusive, and unequivocal possession as a matter of law, the only question that remains is whether the Bank prosecuted the inquiry as far as a prudent man would be bound to prosecute it, as delineated by relevant Texas authorities. As demonstrated by the Texas authorities cited above, Texas law has consistently held that a prudent man must inquire of the possessor regarding his claim and he will be deemed to have knowledge of the facts that such inquiry would disclose.

    The Bank argues that it should not be held to the same standard as a purchaser of real property and should not be required to inspect the real property because lenders are interested only in record title and valuation, and imposing such a requirement would make the lending process much more onerous and costly.

    However, the Texas Supreme Court has not distinguished between purchasers and creditors. Paris Grocer, 105 S.W. at 175 (refusing to hold that possession that was not notice to a purchaser would be notice to a creditor, when both take their rights under the same statute); Collum, 82 S.W. at 460 (holding that, if possession is notice to a purchaser, it is notice to a creditor); Ramirez v. Smith, 59 S.W. 258 (Tex. 1900) (holding that a mortgagee was put on constructive notice that triggered a duty of inquiry concerning the possessor's claim).

    Texas courts of appeals also have not imposed a lesser burden on mortgagees than on purchasers of real property, instead applying the same standard to both. See, e.g., Boyd v. United Bank, 794 S.W.2d 839, 841 (Tex. App.-El Paso 1990, writ denied) (noting that one who accepts a mortgage may be charged with knowledge as to the possessor's interest and be held to have acquired a lien that is inferior to the possessor's interest); Tex. Life Ins. Co. v. Tex. Bldg. Co., 307 S.W.2d 149, 152-53 (Tex. Civ. App.-Fort Worth 1957, no writ); Brown v. Moss, 265 S.W.2d 613, 616 (Tex. Civ. App.-Fort Worth 1954, writ ref'd n.r.e.); San Antonio Loan & Trust Co. v. Rabb, 155 S.W.2d 981, 982 (Tex. Civ. App.-San Antonio 1941, writ ref'd w.o.m.) (possession of the property at the time the deed of trust was executed and the loan made was sufficient to place the loan company on notice of possessor's rights, and the loan was therefore made subject to her prior title).

    Federal district courts have also applied the same standard to mortgagees. See, e.g., Ontiveros v. Mbank Houston, N.A., 751 F.Supp. 128, 130 (S.D. Tex. 1990) (holding that bank was charged with constructive notice of tenant's rights in property by tenant's possession).[7] Thus, because the Texas Supreme Court and the recording statute fail to differentiate between purchasers and mortgage lenders with regard to constructive notice, the Bank's argument that it should be held to a lesser standard fails.

    The Court is sympathetic to the Bank's position, recognizing that it may be burdensome for Banks to determine whether a third party is in possession of the property and, if so, to inquire as to the nature of their claim. This cost surely will be passed on to mortgagors, rendering the process more costly for all. In addition, whether applicable to purchasers or mortgagees, the Court is concerned that the rule of possession as constructive notice sufficient to defeat one's rights under the recording statute defeats the purpose of the recording statute to encourage recordation and create stability of titles. See Cox v. RKA Corp., 753 A.2d 1112 (N.J. 2000) (because the integrity of the recording scheme is paramount, absent any unusual equity, the stability of titles and conveyancing requires the judiciary to follow that course that will best support and maintain the integrity of the recording system).

    Nevertheless, that is the result dictated by the case law and by the language of the recording statute, which protects only those without notice. Moreover, this Court cannot make its own policy in this case. Rather, the Court is bound to apply Texas law as established by the Texas Supreme Court. Texas law regarding possession by constructive notice despite the existence of and policy underlying the recording statute has remained unchanged for almost a century, and was affirmed by the Texas Supreme Court as recently as 2001. Accordingly, this Court must apply that well-settled law.

    Because Henderson's possession is deemed by law to be notice of what would have been disclosed by inquiry, the Bank is deemed as a matter of law to have had notice of Henderson's prior equitable claim. Accordingly, the Bank does not enjoy the protection of the recording statute or other equitable principles. The Court therefore AFFIRMS the Bankruptcy Court's summary judgment in favor of Henderson.
For the ruling, see In re Hayes, Civil Action No.: SA-03-CA-1228-XR (W.D. Tx. 2004).

This ruling, affirming an earlier ruling of the U.S. Bankruptcy Court, was subsequently affirmed by a U.S. Appeals Court in an unpublished opinion. Aff'd per curiam Bank of Am., N.A. v. Schwartz (In re Hayes), 194 Fed. Appx. 217; 2006 U.S. App. LEXIS 21139 (5th Cir. 2006) (unpublished).

Go here for the appellate brief filed on behalf of the homeowner.

See this post, footnote 2 more on the duty to inquire into the rights of occupants in possession of land when applying the bona fide purchaser doctrine under Texas law.

For other states, see Bona Fide Purchaser Doctrine, Possession Of Property By Occupants Other Than The Vendor & The Duty To Inquire.

Wednesday, November 12, 2014

NYC Homebuyer Who Failed To Ascertain Status, Rights Of All Persons In Possession Of Premises Discovers 'Phantom' Tenant Holding Unrecorded 60-Year, $10/Month Lease On 2-Bedroom, West Village Duplex; Resorts To Lawsuit To Boot Renter, Claiming He Either Forged Elderly Ex-Owner's Signature Or Took Advantage Of His Dementia, Alcoholism When Obtaining Lease

In New York City, the New York Post reports:

  • It’s the best lease in the city. In 2009, Jud Parker got a West Village landlord to give him a ­duplex apartment on tony Minetta Street for $10 a month — for 50 years!

    Now new landlord Pari Dulac is challenging the sweetheart deal and claiming the old owner, who died in 2010, had dementia when it was allegedly signed. “When I saw the lease, I couldn’t believe it,” said Dulac, a longtime Village resident. “I thought it was a joke.” Wilfred Schuman, a German-born ballet dancer, had owned a pair of three-story town houses at 12 and 14 Minetta St. since 1993. He lived in the basement of 12 Minetta St.

    According to the August 2009 lease, Parker and gal pal Stefanie Tyler pay just $10 a month for the 1,400-square-foot duplex at 14 Minetta St., which has two bedrooms and a back yard. The 50-year lease has a 10-year renewal option.

    In a lawsuit filed in Manhattan Supreme Court Friday, Dulac claims Parker bamboozled Schuman, who was in his 70s — then subletted the apartment for $2,500 a month after his death. The suit claims Parker manipulated Schuman into signing the lease or forged his signature.

    Dulac bought the buildings from Schuman’s estate last week for $2.75 million. She believes she could rent Parker’s pad for $6,000 a month — which, ironically, is equal to what Parker would pay over the course of his entire half-century lease. But Parker, 47, who was making repairs to the apartment Friday, said the lease was a “gift.” “I was a surrogate son. I took care of him my whole life,” Parker said. “[Dulac] wants me out because she’s greedy.”

    Parker, who declined to comment further, grew up across the street from Schuman. He bought a condo in Davie, Fla., in 2006, rec­ords show. His lease also lists the Florida address.

    Schuman was admitted to hospitals from 2007 to 2009 for alcoholism, dementia and bleeding of the brain after a fall, the lawsuit alleges. Dulac also has an affidavit from Schuman’s brother, Volkmar, who lives in Berlin and corroborates his brother’s dementia.

    In affidavits, residents described Schuman as paranoid, reclusive and “often drunk by late afternoon.” He ate little, “besides cans of tuna fish, which he shared with his cats,” one tenant said. David Burnett, who lived above Schuman, opened a bank account in the ailing landlord’s name so tenants could deposit monthly rent checks that Schuman was ­incapable of accepting.

    Schuman refused to offer tenants formal leases beginning in 2007, and residents lived month to month. In an affidavit, Burnett said he encountered Parker in his building in 2009, but had seen him only twice before over a period of 20 years. Burnett grew suspicious after Parker and Tyler started hanging around Schuman’s pad for three weeks in 2009. He didn’t see Parker again until June 2010 — when he asked where the rent should be paid.

    Laurie Dowdeswell, who lived at 14 Minetta St., said Parker asked for Schuman in August 2010, unaware that he had died, according to the lawsuit. A day later, Parker presented her with the lease and claimed it was his apartment, according to the suit.

    Parker allegedly demanded she sublet for $1,500 a month or vacate the apartment. Her rent increased to $2,500 two years later — which was $350 cheaper than what she paid Schuman. Parker didn’t have keys to the apartment until October 2014 ­after Dowdeswell and her husband left, the lawsuit alleges.

    “This lease is outrageous and unconscionable,” said Dulac’s ­attorney Steven Sladkus.

Tuesday, November 11, 2014

Bank's Failure To Inquire Into Rights Of Persons In Possession Prior To Giving Mortgage Loan In Connection With Sale Leaseback Ripoff Leaves It Holding The Bag

(This is a reprint of a post originally posted on July 24, 2012.)

In another court ruling that has come down in recent years applying the age-old legal doctrine of bona fide purchase to a situation involving some form of home equity ripoff, the Minnesota Court of Appeals concluded that a mortgage lender that provided financing in connection with a sale leaseback equity stripping racket was not entitled to protection as a bona fide purchaser and, accordingly, voided its mortgage, when:

  1. it failed to prove that it received purported lienholder's interest without notice of a violation of the state's anti-foreclosure rescue ripoff statute (Minn. Stat. §325N) and
  2. it failed to fulfill its duty of inquiry as to the rights or interests of persons in possession [ie. the screwed-over homeowner in this case] of the residential real property in foreclosure.
In this case, the lower court found that, because the screwed-over victim was still in possession of his recently-foreclosed home when the mortgage lender extended credit to the then-title holding sale leaseback peddler, and it (the lender) failed to inquire into what rights or equities in connection with the home the victim may have had, the lender was deemed to be on notice of the violations of law committed against the victim by the sale leaseback operator.

The bottom line here was the lender was found not to be entitled to its purported lienholder's interest in the home it thought it received when it loaned money to the sale leaseback operator and, accordingly, was left holding the bag.

For the court ruling, see Graves v. Wayman, 816 N.W.2d 655 (Minn. App. 2012) (for publication) - (includes court syllabus, but no embedded links). Go here for Google version (includes embedded links, but no court syllabus).

Representing the successful homeowner was Jeramie R. Steinert, Steinert P.A., Minneapolis, Minnesota.

See Minnesota Bona Fide Purchaser, Possession, Duty Of Inquiry for some Minnesota case law addressing the duty to inquire of persons in possession of real estate that subsequent purchasers and encumbrancers are burdened with prior to taking title to property or taking a lien as a security interest for a loan.

For other posts on the application of the bona fide purchaser doctrine by the courts in recent years in connection with some type of a home equity ripoff where the victim's title is scammed out from under, see: