Real Estate Case Analysis

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Assuming that the court of appeals’ decisions are ultimately published, as recommended, the decisions last week significantly affect the law in the real estate field, and are intertwined with each other in several respects.

In the most obvious example, the Turner case, by the court of appeals, could have limited effect, at least insofar as parties try to apply it to landlocked properties, in light of the McCormick case from the Supreme Court.

The Turner case never states whether the dominant estates are landlocked or not. If they are, however, a number of factors suggest that they could get an easement of necessity.

The Supreme Court in McCormick suggests that the fact that the owner of the servient estate is a bona fide purchaser for value, without notice, is only one factor for a trial court to consider when deciding whether to grant an easement of necessity. Thus, the decision in Turner may be limited to easements of convenience and not be binding where easements of necessity are concerned.

The easement cases are also relevant to the right of first refusal case, because of the potential for landlocking when a right of first refusal on a portion of a larger parcel is granted.

Mineral rights also come into play in two of these cases. In the Wilber Lime case, as is not uncommon, the right of first refusal was actually contained in a mineral lease, which lapses, pursuant to sec. 706.057(3), if not used for 20 years. However, the lapse can be cured by recording the interest pursuant to sec. 706.057(4).

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Like an easement, mineral rights are an interest in property that can be extinguished by the bona fide purchaser defense in sec. 706.09(1)(k).

The patchwork of different time limits in these statutes for the creation or enforcement of rights can easily create a trap for the unwary, notwithstanding the court of appeals’ conclusion in Turner that they are easily reconcilable.

Consequently, all these cases should be studied thoroughly, and in relation to one another.

– David Ziemer

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David Ziemer can be reached by email.