Articles Posted in Real Estate

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By Joseph G. Ballstaedt

When transferring fee simple ownership in real property, Idaho law requires that the property description precisely describe the property. If not, the transfer is not valid. A much more lenient standard, however, applies to the conveyance of easements. If a document granting an easement does clearly and precisely define the easement location, the easement is often referred to as a “floating easement” or a “blanket easement.” These types of easements are not invalid.

In Idaho, a floating easement—or an easement grant without a definite location—it valid and becomes definite and fully defined by its initial use. For instance, in Manning v. Campbell, a written easement allowed the use of an unbuilt driveway “from the end of North 21st street of the city of Boise, Idaho, in a northerly and southerly direction, far enough to allow the [parties] to enter upon their premises.” This 1952 grant neither specified the exact location of the driveway nor its dimensions. About fifty years later, the driveway had been built, but the location and width of the easement became an issue of controversy. The Manning Court explained that the actual construction of the driveway fixed the location and width of the easement. In so doing, it supported the general rule that the initial selection of a place for an easement fixes its physical location.

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By Joseph G. Ballstaedt

What if you are a non-Indian and purchase land within the borders of an Indian reservation? Are you submitting yourself to regulation by the Tribe and the jurisdiction of the tribal courts for matters related to your property and the use thereof? Probably not. The United States Supreme Court has explained that, as a general rule, tribes do not possess authority over non-Indians who come within the borders of an Indian reservation. This rule is particularly strong when the non-Indian’s activity occurs on land that the non-Indian owns in fee simple.

A good illustration of this rule is found in Evans v. Shoshone-Bannock Land Use Policy Commission, a Ninth Circuit case dealing with land located in Pocatello and within the borders of the Fort Hall Reservation. Evans, who inherited this land in fee simple, was not a member of the Shoshone-Bannock Tribes. He obtained a building permit from Power County—not from the Tribes—and began constructing a residence on the inherited property. The Tribes’ Land Use Policy Commission requested that Evans submit a building permit application and fees to the Tribes, but Evans refused. Eventually, the Tribes served a complaint on Evans from the Shoshone-Bannock Tribal Court, and Evans responded by seeking in federal court a declaration that the tribal court lacked jurisdiction.

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By Joseph G. Ballstaedt

“Subletting” or “subleasing” occurs when a landlord rents a property to a tenant who then rents the property to another tenant known as the “subtenant.” A tenant may seek a subtenant so he can share rent expenses or he may want to find a subtenant while away for an extended period of time. In Idaho, subletting is legal unless the lease agreement between the landlord and the original tenant expressly prohibits it.

When a sublease exists, the original tenant is solely responsible for fulfilling the terms of the original lease with the landlord. For example, let’s say a tenant rents a larger, three-bedroom home for $1500 a month and then sublets two rooms to two roommates. Even if all three roommates agree to pay $500 a month, the original tenant is still responsible to pay the landlord the entire $1500 each month. It is no defense that the two subtenants did not pay their $500 because the landlord only has a contract with the original tenant, not the subtenants. (Similarly, the subtenants cannot enforce any of their contractual rights against the landlord.) This does not mean that the original tenant cannot seek reimbursement from the subtenants; it just means he can be evicted if he doesn’t pay the full $1500, whether from his own funds or with help from the subtenants.

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By Joseph G. Ballstaedt

The doctrine of adverse possession of real property is a strange legal concept, yet one deeply imbedded in American law. Under this doctrine, a person who trespasses onto and possesses the property of another can, after enough time has passed and if certain other conditions are met, become the legal owner of the property. This doctrine arguably condones trespassing by rewarding “squatters” for conduct that seems unfair, unjust and contrary to long-held principles of private property ownership. However, the requirements to actually prove adverse possession are stringent enough that the doctrine is infrequently applied. It is typically used to resolve ownership disputes in favor of the person who has actually occupied, cared for, and paid taxes on the property.

Each state has specific requirements enumerated in court decisions and statutes that must be met to acquire land through adverse possession. In Idaho, a person claiming ownership by adverse possession first must prove he or she has possessed the property for the statutory period. Up until 2006 this period was five years in Idaho. The Idaho Legislature amended the statute in 2006 to extend the period to 20 years. The person must also prove his or her possession was “actual, open, visible, notorious, continuous, and hostile” to the owner of record, and that he or she has enclosed, improved, and paid taxes on the disputed property. If these elements are proven by clear and convincing evidence, the claim of adverse possession succeeds and the judge will issue a judgment declaring the person to be the legal owner of the property.

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By: T.J. Budge

Idaho law recognizes the doctrine of adverse possession, whereby a person can acquire ownership of real property by occupying it for an extended period of time to the exclusion of others. This is sometimes referred to as a “squatter’s right.”

A person claiming ownership by adverse possession must prove, by clear and satisfactory evidence, that they have had exclusive and continuous possession of the property for the time period required by statute. Idaho Code 5-210 required a five year period of possession up until 2006 when the statute was amended to extend the time requirement to twenty years.

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By Lane V. Erickson, Attorney

One of the first things to consider when preparing to foreclose non-judicially on real estate is whether you have a legal right to do so. If you have waited too long to exercise your right to foreclose, you may have lost your right. When it comes to a non-judicial foreclosure the law allows a foreclosure to begin within five years of a default in the payment on the obligation secured by the Deed of Trust mortgage.

Non-judicial foreclosures are controlled by Idaho statutes, namely, Idaho Code §§ 45-1502 et seq. When it comes to “timeliness” or an applicable statute of limitations, Idaho Code § 45-1515 applies.  This statute states:

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By Lane V. Erickson, Attorney

You are a holder of a mortgage on real property located in Idaho. The borrower who owns the Home Depot that and making their regular payments to you. You did everything right and doing a non-judicial foreclosure under Idaho law. A trustee’s deed has been issued naming you as the titled owner to the property. However, the homeowner refuses to leave the property. What can you do now to remove the homeowner after completing your non-judicial foreclosure?

Idaho law provides a mechanism for removing a homeowner once a non-judicial foreclosure has been completed. This process is called an ejectment. Ejectment requires proof of (1) ownership, (2) possession by the defendants, and (3) refusal of the defendants to surrender possession. Pro Indiviso, Inc. v. Mid-Mile Holding Trust, 131 Idaho 741, 745, 963 P.2d 1178, 1182 (1998). Further, a suit for ejectment is equitable in nature and, therefore, that there is no entitlement to a jury trial on the ejectment claim.  Ada County Highway Dist. v. Total Success Invs., LLC, 145 Idaho 360, 369, 179 P.3d 323, 332 (2008).

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By Joseph G. Ballstaedt

In Idaho, if you want to use your property in manner not authorized by current zoning ordinances, you must either seek to amend the zoning ordinance or seek a variance from the city council or board of county commissioners. Idaho law requires all zoning ordinances to include a variance procedure size for lot sizes and similar physical restrictions on lots and buildings. However, these special accommodations are not a “right or special privilege;” rather, a variance may granted only upon a showing of “undue hardship because of characteristics of the site.” It must also shown that the desired variance is not in conflict with the public interest.

Property owners often assume that any type of land use may be approved by way of a variance. But since variances may be used only to accommodate unique characteristics of the building site, a variance will not work for many land uses, leaving the property owner with only one option: amending the zoning ordinance to formally authorize the desired land use.

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By: T.J. Budge

The Idaho Legislature recently made two important changes in Idaho law affecting homeowner’s associations (HOAs). The changes came by way of amendments to Idaho Code § 55-115. Subsections (3) and (4) were added during the 2016 Legislative Session and took effect on July 1, 2016.

Subsection (3) prohibits HOAs from amending their covenants, conditions and restrictions (CC&Rs) to limit or prohibit the rental of property within the subdivision unless the homeowners agree to the amendment in writing. This amendment was a response to a recent Idaho Supreme Court Decision, Adams v. Kimberley One Townhouse Owner’s Association, 158 Idaho 770 (2015). In that case, a homeowner purchased a townhouse subject to CC&Rs that did not restrict an owner’s ability to rent his/her unit. Subsequently, the HOA amended the CC&Rs to prohibit rentals for less than six months. The homeowner argued that the amendment unlawfully restrained the free use of his property. The Idaho Supreme Court disagreed, upholding the rental restriction added to the CC&Rs.

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By Joseph G. Ballstaedt

 A few days ago, the Idaho Supreme Court issued a decision that reaffirms an Idaho rule concerning property descriptions. The Court held that a conveyance deed is not enforceable unless the property description in the deed describes the property so that it is possible for someone to identify exactly what property is being conveyed. This description must be written in so that quantity, identity, or boundaries can be determined. The description must stand alone, without support from outside evidence.

In this recent decision, The David and Marvel Benton Trust v. McCarty, McCarty asserted that the following legal description in a quitclaim deed was sufficient: