Month: August 2019

Seabrook Island drainage dispute leads to interesting case

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Owners’ association could not act unilaterally to terminate an easement

Seabrook Island map

The South Carolina Court of Appeals reversed an easement decision from the Charleston County Circuit Court last week and remanded the case for a new trial on compensatory and punitive damages in a controversy surrounding a drainage easement on Seabrook Island.*

The case involved a dispute between two couples, the Ralphs and the McLaughlins, who owned residential lots on Seabrook Island. In 1984, developer E.M. Seabrook, Jr. recorded a plat depicting blocks 32 and 33 of Seabook Island. To alleviate draining issues concerning several lots in block 32, the plat reflected a 20-foot drainage easement running between lots 21 and 22 and depicted a no-build area across the back of the lots.

The Ralphs bought lot 23 in 1997. The McLaughlins’ predecessors bought Lot 22 a year or so later and, in 2002, approached the Seabrook Island Property Owners Association (SIPOA) about eliminating the easement and no-build area on their lot. The SIPOA agreed and prepared a new plat entitled “Plat Showing Abandonment of an Existing 20’ Drainage Easement, Lot 22, Block 32”. The plat also indicated the no-build area was to be abandoned.

The McLaughlins bought Lot 22 later in 2002. In 2006, they approached SIPOA’s Architectural Review Board about building a house. The plans were approved with several stipulations, including the requirement that the McLaughlins assume the responsibility for the underground drainage line and the abandoned draining easement.

Over the course of the next year the McLaughlins sought financing for their construction. At some point, they received a call from the chair of the SIPOA legal committee indicating there were issues concerning the drainage pipe. A meeting was scheduled for the owners of lots 21 – 28 to discuss the easement, and several neighbors objected to the removal of the pipe because of the potential adverse effects on drainage.

The neighbors continued to express concerns, and on October 22, 2008, SIPOA sent a letter rescinding the resolution abandoning the easement. In December, the McLaughlins emailed the neighboring property owners asserting that there was no easement on their property, stating they had been patient with SIPOA, and they would begin constructing their home. They then authorized their contractor to remove the pipe. They built part of their home over the no-build area and the area formerly containing the pipe.

In 2011, the Ralphs filed a complaint seeking actual and punitive damages alleging the McLaughlins caused flooding and poor drainage on the Ralphs’ property. The McLaughlins filed an answer and a third-party complaint against SIPOA alleging reliance on representations. The McLaughlin’s case centered on the theory that they had justifiably relied on SIPOA and the purported abandonment of the easement in removing the pipe.

The circuit court granted SIPOA’s motion for summary judgment, finding there was no evidence to show SIPOA had made any promises to the McLaughlins and, as a matter of law, the McLaughlins could not have reasonably relied on SIPOA. The circuit court also directed a verdict in favor of the defendants on punitive damages because, he said, Mr. McLaughlin believed he had the right to remove the pipe.  At trial, the jury awarded the Ralphs $1,000 in damages for trespass.

The Ralphs argued on appeal that the circuit court failed to apply the findings of fact and conclusions of law in the grant of summary judgment to the SIPOA as the law of the case. The Court of Appeals agreed stating that since the defense was significantly based on the theory that the McLaughlins reasonably relied on SIPOA, the finding that this reliance wasn’t reasonable in the summary judgment motion should have applied to the controversy between the Ralphs and the McLaughlins.

The Court of Appeals also held that the directed verdict as to punitive damages was inappropriate because there was more than one reasonable inference that could be drawn from the evidence that the McLaughlins acted with reckless regard for the property rights of the Ralphs.

Significantly for dirt lawyers, the Court of Appeals held that the SIPOA could not have unilaterally abandoned the drainage easement because every lot owner had an ownership interest in the easement as a result of the plat that originally established the easement and the deeds in the respective chains of title that incorporated the plat by reference. The Court made the point that while it is well settled law that an owner of an easement may abandon the easement, it is also well settled that only easement owners are authorized to take such action.

Since the Ralphs had established an ownership interest in the easement as a matter of law, the Ralphs were entitled to enforce the easement, and the case was sent back to the lower court for a determination of damages by the jury.

* Ralph v. McLaughlin, Court of Appeals Opinion 5681 (August 21, 2019)

Amazon-Realogy partnership is making news in the housing market

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New home buying program not yet available in South Carolina

Amazon Turnkey smaller

According to several news sources, Amazon announced in late July that it will partner with residential real estate services company Realogy Holdings Corp. to launch a new home-buying program called TurnKey.

A TurnKey portal will be available through Amazon’s gigantic retail platform, Amazon.com. Potential home buyers who use that portal will be matched with real estate agents from one of Realogy’s brands like Coldwell Banker, Century 21 and Sotheby’s. Realogy is purportedly the largest residential real estate brokerage company in the country.

Potential buyers will go to Amazon.com/TurnKey and answer four questions about who they are and where they live. They will next get a phone call from a Realogy representative who will attempt to determine what sort of home they are seeking and how serious they are about buying. Information about the best prospects will be sent to Realogy real estate agents.

Home buyers who close with Realogy agents will receive up to $5,000 in products and services. Coupons for $450 – $1,500 in Amazon Home Services like unpacking, cleaning and furniture assembly will be available in addition to between $500 and $3,500 in smart-home products. Purchase of a $700,000 house will be required to receive the top credit.

The two giant companies are interested in finding out whether home buyers will look for new homes in the same place where they already shop for everything else. The credits for products and services will give Amazon a new way to market things it already sells, such as handyman services and smart-home gadgets like Alexa-powered speakers, doorbells and security cameras. The new lead-generating program will seek to help Realogy recruit and retain agents and increase market share.

The new program is starting in 15 markets, including Atlanta, Chicago, Seattle and San Francisco. We’ll have to wait to see how quickly it moves to South Carolina.

ProPublica publishes interesting heirs’ property story

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Check out the July 15, 2019 story by Lizzie Presser

NC oceanfront property

Image courtesy of ProPublica.org

Several of our staff members stay well informed about current events, and Cris Hudson, our IT professional, is no exception. Cris pointed me to this story published by ProPublica on July 15 entitled “Their Family Bought Land One Generation After Slavery”. The subtitle is “The Reels Brothers Spent Eight Years in Jail for Refusing to Leave it.” Cris told me I should blog about this story, so here goes.

ProPublica calls itself a “nonprofit newsroom that investigates abuses of power”. The story is about brothers, Melvin Davis and Licurtis Reels, who lived in Carteret County, on the central coast of North Carolina, on land they considered to be owned by dozens of their family members. The property consists of 65 marshy acres. Melvin Reels ran a club on the property and lived in an apartment above the club. He also had established a career shrimping in the river that bordered the land. Licurtis had spent years building a house near the river’s edge, just steps from his mother’s house.

Mr. Davis’ and Mr. Reels’ great grandfather, Mitchell Reels, bought the land just one generation removed from slavery. The land was said to contain the only beach in the county that welcomed black families. Mitchell didn’t trust the courts and didn’t leave a will, so, when he died in 1970, the property became heirs’ property.

In 2011, the brothers appeared before a judge to argue that they owned the waterfront portion of their property, which had purportedly been sold, without their knowledge or consent, to a developer. They were not allowed to argue their case that day. Instead, the judge sent them to jail for civil contempt. They were never charged with a crime nor given a jury trial, but they spent the next eight years fighting their case from jail.

As any practitioner who has handled quiet title suits for heirs’ property can attest, the suits can be expensive and complex. Nonprofit organizations, like The Center for Heirs’ Property Preservation, in South Carolina, assist in litigating these matters.

The story quotes Josh Walden of the Center who said that organization has worked to clear more than 200 titles in South Carolina the past decade, protecting land valued at nearly $14 million. Mr. Walden told the reporter that the center has mapped out a hundred thousand acres of heirs’ property in South Carolina and is careful to protect the maps from potential developers.

Back to the North Carolina story, a great uncle of Mitchell and Licurtis apparently obtained the waterfront property through an adverse possession action and began sending trespass notices to the brothers in 1982. The brothers could not believe the adverse possession action could have been “legal” since they had lived on the land their entire lives. Soon afterward, the great uncle sold the waterfront portion of the land to developers.

The family members knew that if the waterfront was developed, the tax values of their adjacent properties would skyrocket, and they would have difficulty paying the taxes and maintaining their properties. Tax sales have historically been the cause of the loss of many heirs’ properties.

(I got confused in one part of the story when the author talked about “nearby” Hilton Head. We drove from Hilton Head to Outer Banks once, and I promise you, the two locations are not “nearby”. We could have driven to Disney World in the same time frame.)

Like tax sales, partition actions have been a tool used to separate heirs from their properties. A developer can buy the share of one heir and then force a partition of the entire property. While South Carolina has passed partition legislation to protect against this danger, North Carolina has held out against this reform, according to the story.

The brothers continued to rot in jail after the judge indicated there was no time limit on civil conspiracy, and that the brothers had to move their houses from the properties to be released. The brothers refused and were locked in a hopeless clash with the law, according to the story.

Eight years later, the brothers appeared before a judge who agreed to release them but warned them that if they returned to their homes, they would return to jail. They have still not been able to return to the waterfront property.

I invite you to read the entire story for a history of heirs’ property in the South. It is indeed a sad tale of greed and legal wrangling to remove properties from heirs. The Reels’ story is just one example.

Matthew Cox, notorious fraudster, resurfaces

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Check out the August issue of The Atlantic

matthew cox

Picture courtesy of The Atlantic, August 2019 issue

I’ll never forget the name, Matthew Cox or the telephone call that tipped us off that we had a serious mortgage fraud situation here in Columbia. Long before the housing bubble popped, an attorney called to let us know what was going on that day in the Richland County ROD office. Representatives of several closing offices were recording mortgages describing the same two residential properties in Blythewood, as if the properties had been refinanced multiple times in the same day by different closing offices.

At first, we thought our company and our attorney agent were in the clear because our mortgage got to record first. South Carolina is a race notice state, and getting to record first matters. Later, we learned that deeds to the so called borrower were forged, so there was no safety for anyone involved in this seedy scenario. Thousands of dollars were lost.

Next, we learned about the two fraudsters who had moved to Columbia from Florida through Atlanta to work their mischief here. The two names were Matthew Cox and Rebecca Hauck. We heard that Cox had been in the mortgage lending business in Florida, where he got into trouble for faking loan documents. He actually had the guts to write a novel about his antics when he lost his brokerage license and needed funds, but the novel was never published. With funds running low, Cox and his girlfriend, Hauck, moved to Atlanta and then Columbia to continue their mortgage fraud efforts.

We didn’t hear more from the pair until several years later, when we heard they had thankfully been arrested and sent to federal prison.

For a much more colorful account of these criminal activities and Cox’s attempt to write “true crime” stories from the Coleman Federal Correctional Complex in Florida, I refer you to the comprehensive and entertaining article written by Rachel Monroe in the August issue of The Atlantic magazine. Please enjoy the full text of the article here.

Ms. Monroe said she had been contacted by Matthew Cox by email telling her he was attempting to write a body of work that would allow him to exit prison with a new career. He described himself as “an infamous con man writing his fellow inmates’ true crime stories while immersed in federal prison.”

The crimes perpetuated by Cox and Hauck were made easier by the housing bubble itself. Everything was inflated and values were hard to nail down. And closings were occurring at a lightening pace. This excellent article made my heart skip a beat as I was reminded of those times. I hope all of us in the real estate industry have learned valuable lessons that will similar prevent mortgage fraud in the future. Those of us who made it through the economic downturn are certainly older and hopefully wiser!