“Interesting” Property Stories

1. “Interesting” Property Stories Stephen Spitz Professor of Law Charleston School of Law

2. Introductory Word: Equity is Swell at Word Press Just posted a new lower court decision by the Greenville Master In Equity Voiding Tax Sale In 2009

3. “Interesting” Property Stories: PLTA Spring 2012 • Story 1: Niagara Falls, N.Y. (1953) “The Deed That Talked About Death” • Story 2: Miami, Florida (1959) “That Large Awful Wall”

4. It Started Out So Innocently Long Ago

5. And The Ending Was So Truly Awful Evacuations Tearing Down A School Moving People From their own Homes

9. Abandoned Homes Near The Canal

10. How in the World Did This Happen? • A Reminder of Ethics • Critical Importance of Documents • Role of Lawyers

12. Pollution Exclusion Clauses In Many Insurance Policies Were Found to Be Against Public Policy This Situation Created Superfund, CERCLA, And Huge Environmental Due Diligence We Now Do

13. After 16 Years of Constant Litigation • OCCIDENTAL TO PAY $129 MILLION IN LOVE CANAL SETTLEMENT

14. Huge National Impact: 32 Superfund Sites in S.C. Alone

17. The Case Itself • The lawyers for the Eden Roc argued that they had implied easement to continue to receive air and light to their property. They lost.

18. Perhaps They Should Have Made Several Other Arguments Keeble v. Hickeringill, Queen’s Bench, 1707

19. A True Basic Principle: Never Do Something Just For “Spite” • Where a violent malicious act is done to a man’s occupation, profession, or way of getting a livelihood, there an action lies in all cases

20. Could This Even Have Been an Unfair Trade Practice? • S.C. Unfair Trade Practices Act 39-5-140 Action for Damages • Unfair to Use Deceptive Method, Act, Or Practice

21. It Might Have Even Be A Nuisance • See N.H. Supreme Court Opinion In My Materials (Written by Future Supreme Court Justice, Souter, J)

22. Story Number #3 • Fascinating South Carolina Case of Leasing Enterprises v. Livingston, 363 S.E.2d 410 (S.C. App. 1987)

23. A Very Familiar Cast of Characters: Judgment Creditor Debtor Family Members

24. The Story of a “Forklift” In California & Property In S.C. • Joe Livingston entered into a lease purchase agreement with Leasing Enterprises for a forklift. • He never completed the contract and Leasing sued him and obtained a judgment

25. More of the Story • Leasing Enterprises filed an action four years later, in Oconee County, S.C. to domesticate judgment • Livingston had told Leasing he owned ½ undivided interest in 37 acres in Oconee County. But prior to the domesticated judgment being sought --

26. Leasing Was Unaware of the Fact That: • A California quit-claim deed form from Livingston to Schlee (his mother) in consideration of “love and affection” existed where son conveyed all his interest in the property to his mother – long before Leasing met Joe Livingston

27. Here We Go:An “Interesting” Timeline • 1977: Quitclaim deed executed in California • 1980: Leasing & Livingston enter into financial arrangement • 1981: California Judgment against Livingston • 1983: Quitclaim deed is recorded in Oconee County

28. And, finally • 1984: California judgment becomes recorded in Oconee County

29. Rules From This Case • 1. Of course, South Carolina law applies to South Carolina real estate • 2. Of course, South Carolina law requires pursuant to Section 27-7-10 a deed shall be valid to transfer a fee simple interest

30. The Requirement of Two Valid Witnesses Is Very Real When A Third Party Is Involved 1840: Craig v. Pinson 1888: Little v. White 1943: Hunt v. Smith

31. The Court Draws AnInteresting Distinction • Although a mortgage imperfectly executed can create an equitable lien as between the parties, there is an exception – when a purchaser of land for valuable consideration and without notice comes along. • Young v. Young, 3 S.E.202 (1887)

32. In short: If the Deed Was Not Entitled to Be Recorded • Because it had only a single witness, then it gave no one notice of anything to subsequent creditors. Citing: The late, great, Professor David Means, the Recording of Land Title in S.C., 10 South Carolina Law Quarterly 346, 407 (1958)