The Court of Appeals issued a number of decisions today, while
snow and ice ghosted the City of Raleigh. The Court addressed
trespass to land, the availability of the "offset"
defense to commercial loan guarantors. Let's take a quick
look at a couple of today's holdings in the land use/real
estate sphere:
Branch Banking and Trust Co v. Smith, et al., No. COA14-554 (February 17, 2015)
(linked).
In this case, the Court of Appeals reverses a summary judgment
ruling in the plaintiff bank's favor, ruling that the defendant
guarantors to a commercial real estate loan are entitled to assert
the offset defense of N.C.G.S. 45-21.36 where the following
conditions are in play: (1) a lender is pursing the
guarantors over a deficiency resulting from a foreclosure sale of
real estate, (2) in which the lender is the winning bidder
of the real estate for a sum less than the outstanding, guaranteed
indebtedness.
Graham v. Deutsche Bank National Trust Co., No. COA13-881-2 (February 17, 2015)
(linked).
Here, on rehearing, the Court of Appeals reversed its previous
decision in the lawsuit and, in doing so, affirmed the trial
court's mandatory injunction requiring the removal of portions
of a house and a septic system that encroached on a neighboring
residential parcel. In doing so, the Court determined that it
need not follow the recent decision in Woodring v.
Swieter, 180 N.C. App. 362 (2006) in which the Court
determined that an action for trespass to property could not be
brought by an individual who came into ownership after the trespass
began. Rather, the Graham Court determines that it
must follow "older" precedent that the "wrongful
maintenance of an encroaching structure is itself a 'trespass
each day it so remains' and constitutes a distinct wrong"
such that ownership of the encroached-upon property is enough to
state a claim and coming into ownership after the initial trespass
act -- here, the construction of the encroaching house and septic
system -- does not upend one's claim sounding in trespass.
"Please keep out. Until I sell this place."
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