Title Nerds

Riker Danzig Scherer Hyland & Perretti LLP

Title Nerds is a presentation of Riker Danzig LLP, a full-service law firm that has served the business community for over 140 years. With offices in Morristown, Trenton, and Midtown Manhattan, Riker Danzig has been described by Chambers USA: Leading Lawyers for Business as a “go-to firm in the title insurance space,” providing title insurance companies and their insured lenders and property owners representation in litigations, coverage investigations, and general advice in resolving title disputes. Since Riker Danzig’s title insurance attorneys have been exposed to virtually every imaginable type of title dispute, Title Nerds will explore the intricacies of issues they have addressed throughout their many years of experience. Partners Mike O’Donnell and Bethany Abele are the moderators. Visit Riker Danzig at riker.com, where you can sign up for the firm’s Banking, Title Insurance and Real Estate Litigation Blog.

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Season 2, Episode 1
Aug 1 2022
Season 2, Episode 1
Title Nerds is excited to begin its second season of exploring title insurance and real estate litigation issues that Riker Danzig attorneys see in our practice.  In this first episode of the new season, co-hosts Mike O’Donnell and Bethany Abele enjoyed drawing on insights from one of our esteemed Of Counsel, New Jersey title insurance guru Vince Sharkey.  Vince provided entertaining conversation about his journey into and through the title insurance world, and some of the significant cases and challenges in his practice, including recommendations for lawyers who represent title insurance companies as to how to effectively approach cases and work well with clients. Next, Bethany interviewed associate Kevin Hakansson about a case decided on June 9, 2022 by the NJ Supreme Court, Sullivan v. Max Spann Real Estate & Auction Co., 2022 N.J. LEXIS 512.  In the case, the Supreme Court decided that the mandatory three-day attorney review clause that must be included in contracts for sale of residential real estate is not required in absolute auction sales.  The case arose from the auction of property in Bernardsville, NJ, after which the successful bidder was not able to satisfy her obligations under the contract and did not purchase the property, spurring a suit by the seller against the bidder and the realtor who conducted the auction.  At trial and on appeal, the court found for the plaintiff, holding that “a private real estate auction sale is not the consumer type contract contemplated in [State Bar Ass’n], and therefore, the three-day attorney review period is not required in such a sale.”  With the Supreme Court’s affirmation, this is a case that attorneys and real estate professionals need to note before their clients participate in an absolute auction sale.  Listen in for more details and analysis.
Season 2, Episode 1
Aug 1 2022
Season 2, Episode 1
Title Nerds is excited to begin its second season of exploring title insurance and real estate litigation issues that Riker Danzig attorneys see in our practice.  In this first episode of the new season, co-hosts Mike O’Donnell and Bethany Abele enjoyed drawing on insights from one of our esteemed Of Counsel, New Jersey title insurance guru Vince Sharkey.  Vince provided entertaining conversation about his journey into and through the title insurance world, and some of the significant cases and challenges in his practice, including recommendations for lawyers who represent title insurance companies as to how to effectively approach cases and work well with clients. Next, Bethany interviewed associate Kevin Hakansson about a case decided on June 9, 2022 by the NJ Supreme Court, Sullivan v. Max Spann Real Estate & Auction Co., 2022 N.J. LEXIS 512.  In the case, the Supreme Court decided that the mandatory three-day attorney review clause that must be included in contracts for sale of residential real estate is not required in absolute auction sales.  The case arose from the auction of property in Bernardsville, NJ, after which the successful bidder was not able to satisfy her obligations under the contract and did not purchase the property, spurring a suit by the seller against the bidder and the realtor who conducted the auction.  At trial and on appeal, the court found for the plaintiff, holding that “a private real estate auction sale is not the consumer type contract contemplated in [State Bar Ass’n], and therefore, the three-day attorney review period is not required in such a sale.”  With the Supreme Court’s affirmation, this is a case that attorneys and real estate professionals need to note before their clients participate in an absolute auction sale.  Listen in for more details and analysis.
Season 1, Episode 9
Apr 25 2022
Season 1, Episode 9
Title Nerds co-hosts Mike O’Donnell and Bethany Abele welcomed two partners from our Environmental Practice In Episode 9, Alexa Richman-La Londe and Steve Senior.  Alexa and Steve discussed the hot real estate market in New Jersey for commercial/industrial properties, which are frequently environmentally impaired and require remediation.  This led to an interesting conversation about the use and mechanics of NJDEP’s Deed Notices that get recorded in land records, including a case where a property owner refused to consent to a Deed Notice (Cozzoli Machine Company v. Crown Real Estate Holdings, Inc., Docket No. A-1733-19, App. Div., Dec. 7, 2021).  The discussion led into other environmental documents that show up in title searches (including, other deed restrictions, conservation easements and liens), and the potential obligations of sellers and/or lenders to disclose environmental reports. Next, Mike interviewed counsel Jorge Sanchez about a case recently heard in the Appellate Division and approved for publication, Woodmont Props. v. Twp. of Westampton, 2022 N.J. Super. LEXIS 13, *2 (N.J. App. Div. Feb. 7, 2022).  In this published case, the appeals court affirmed the dismissal of a potential purchaser’s claim for a constructive trust as to foreclosed land, finding that the potential purchaser’s claim could not be sustained because a foreclosure and sheriff’s sale extinguished any unrecorded contractual right to purchase the property.  The plaintiff, Woodmont had contracted to purchase a piece of land.  The contract required that the seller not encumber the Property more than 80% of its value.  Woodmont did not record the contract in the County Clerk’s Office.  The following week, the seller gave a mortgage on the land to TD Bank to secure a loan, encumbering the property.  The seller defaulted on the loan prior to closing with Woodmont, and TD Bank sought foreclosure of the property.  Woodmont did not intervene. While the foreclosure was pending, Woodmont entered into a redevelopment agreement with the Township of Westampton, which was terminated by Westampton when Woodmont failed to secure title to the land.  The property was eventually sold to TD Bank at a Sheriff’s Sale.  Woodmont subsequently filed suit against Westampton and TD Bank, among others, alleging tortious interference and a breach of the redevelopment agreement.  Central to the claim was that the TD mortgage lien was more than 80% of the property’s value.  The case was dismissed, and Woodmont appealed.  On appeal, the appeals court found that the claims against Westampton failed because the redevelopment agreement was conditioned on Woodmont having title to the property, which it did not.  As to TD Bank, the Court first found that even if TD Bank knew of the Woodmount contract, it still had a right to foreclose and need not name Woodmont as the contract was not recorded.  To rule otherwise would run contrary to N.J.S.A. 2A:50-30, prior case law.  The Court warned that those who did not record their interests ran the risk of their property interest being terminated without being named as defendants in a foreclosure.  However, the court did find that Woodmont could have a viable claim against TD Bank for tortiously interfering with its contractual rights with the seller if it indeed knew of the contract .
Season 1, Episode 8
Mar 21 2022
Season 1, Episode 8
In Episode 8 Riker Danzig welcomed two professionals from Qualia, a digital real estate closing platform that is changing the industry.  Lyman Hopper, a long-time title insurance pro, and Tim Calandro, a senior account executive, spoke with hosts Mike O’Donnell and Bethany Abele about why title and escrow companies are turning to digital platforms to better serve their clients.  They explained that, in addition to helping professionals be more effective and productive in accomplishing the numerous tasks associated with closings, the all-in-one platform can make the closing process less stressful by providing automated property data retrieval and personalized dashboards to track workflow.  They noted that both established title shops and start-ups are relying more and more on online portals. Associate Desiree McDonald then joined the conversation to discuss A Flock of Seagirls LLC v. Walton County Florida, 7 F.4th 1072 (2021) (not to be confused with the popular ‘80s band A Flock of Seagulls). In A Flock of Seagirls, the Eleventh Circuit Court of Appeals reversed the decision of the US District Court for the Northern District of Florida regarding an easement.   The strip of land in question was at the heart of eminent domain proceedings back in the ‘90s by the State of Florida, resulting in a public access easement allowing public pedestrian access along the beach on the Gulf of Mexico.  The easement’s stated purpose was to provide “a way of passage.”  The easement also contained an abandonment clause, which provided that the County would be deemed to have abandoned the easement if the County attempted to use the easement “for a purpose not specified therein.”  The Eleventh Circuit Court of Appeals had to consider whether the abandonment clause of the easement was triggered when Walton County created an Ordinance allowing the land to be used for recreational activity (such as sunbathing, picnicking, swimming, building sandcastles).  The Eleventh Circuit determined that the Ordinance constituted an abandonment of the easement, noting that “a way of passage” refers to a locomotive purpose, not a recreational purpose.  Further, it found that, under Florida law, the public’s right to full use of beaches was not boundless.  Therefore, the Court held that the easement was abandoned, protecting the adjacent beachfront property from unwelcome recreational activity.
Season 1, Episode 7
Feb 14 2022
Season 1, Episode 7
Episode 7 features one of Riker Danzig’s impressive retired judges, the Hon. Travis Francis, who was Assignment Judge for Middlesex County, Superior Court of New Jersey before joining Riker Danzig.  Judge Francis is now an active mediator and discovery master in the Firm’s Alternative Dispute Resolution Practice.   Co-Host Bethany Abele interviews Judge Francis about some of the intriguing title insurance and real estate cases that came before him when he was on the bench, including issues of quiet title, specific performance and adverse possession.  Co-Host Michael O’Donnell joins Bethany and Judge Francis in the discussion, which headed “into the weeds,” literally, as cases involving farmers and fences kept “cropping” up.  Keeping us on track, Judge Francis provides insights and best practices for counsel bringing title insurance cases, including guidance on pursuing orders to show cause and motions for relief to provide for a good experience with the deciding judge. Next, Mike invites Riker Danzig attorney Kevin Hakansson to unpack the Cherry v. Ziad Hadaya case, 2021 N.J. Super. Unpub. LEXIS 2571 (App. Div. Oct. 29, 2021), in which the NJ Appellate Division held that neighbors could enforce deed restrictions tracing back to a 1928 deed to prevent another neighbor from subdividing their property. In Cherry, Defendants owned a plot of land on Jefferson Road in Princeton that was originally part of a larger parcel conveyed in 1928. While the 1928 deed contained restrictions on the land regarding subdivision, the 2004 deed did not.  After the defendants received approval from the Planning Board in 2008 to subdivide its property into two lots, and later applied to subdivide the larger resulting lot into two more lots, the plaintiffs, who owned neighboring properties, filed a complaint seeking to void the 2008 subdivision and to enjoin further subdivision based on the 1928 deed restrictions relating primarily to the frontage of the lots.  The Chancery Court dismissed some neighbors’ claims for lack of standing as they were not in the chain of title of the 1928 deed.  But it granted summary judgment for the other plaintiffs whose properties were within the 1928 deed chain of title and ordered the Defendants to re-convey the plots back to their 2004 dimensions.  On appeal, the Appellate Division affirmed, agreeing that enforcement of the 1928 deed restrictions was reasonable, and that plaintiffs in the chain of title were among those intended to be incorporated into the neighborhood scheme.
Season 1, Episode 6
Jan 4 2022
Season 1, Episode 6
Title Nerds hosts Mike O’Donnell and Bethany Abele welcome title insurance industry professional Sam Shiel to the podcast for Episode Six.  Sam Shiel of Madison Title Agency has a conversation with Mike about his early interest in title insurance and how he got started in the industry, and what is required of a title agent.  Sam explains what it really means to be an independent nationwide title agent, as well as differences in markets, and then talks about the services beyond title searches and issuances of policies that may be provided by some title agents.  The conversation also moves into how good title agents safeguard against wire fraud, the evolution of the title industry and what may be coming in the future.  Of great interest to our listeners is that it was determined during the episode that a prescriptive easement was at the heart of the feud between the Capulets and Montagues in the Romeo and Juliet tragedy! Taking that theme, Bethany then speaks with Riker Danzig attorney Desiree McDonald about a recent prescriptive easement case decided by the Colorado Supreme Court.  In Lo Viento Blanco, LLC v. Woodbridge Condo. Ass’n, Inc., 489 P.3d 735 (Colo. 2021), L.R. Foy Construction (“Foy Construction”) conveyed a large parcel of land with condominiums to the Woodbridge Condominium Association, but did not convey a smaller parcel of land that sat between the conveyed parcel and a gravel road. Woodbridge then used this smaller parcel of land over a period of decades for different purposes and maintained it, and, in 1991, offered Foy Construction $10,000 for the smaller parcel. Without replying to Woodbridge, Foy Construction subsequently sold the disputed parcel in 2010 to Lo Viento Blanco LLC, who presented Woodbridge with a plan to build on the disputed parcel. Woodbridge objected and filed suit to establish that it owned the disputed parcel or, in the alternative, that it had acquired a prescriptive easement over it. The Colorado Supreme Court agreed with the Court of Appeals, noting that a prescriptive easement claimant that shows that it has possessed the easement for more than the statutory period is entitled to a presumption of adverse use.
Season 1, Episode 5
Dec 2 2021
Season 1, Episode 5
In Episode Five of Title Nerds, hosts Mike O’Donnell and Bethany Abele are joined by partners from Riker Danzig’s Bankruptcy & Corporate Restructuring Practice, along with Riker Danzig attorney Mike Crowley from the Title Insurance team.  First, Bankruptcy Chair Joe Schwartz explains how liens and mortgages pass through bankruptcy.  Partner Tara Schellhorn next joins Joe to address avoidance action-type claims, where Mike and Bethany questioned them about preferences as a way for Trustees to recoup payments and property interests, and best defenses against preferences.  In a wide-ranging discussion, Joe and Tara provided insights on trustees being a hypothetical lien holder or a bona fide purchaser for value, as well as fraudulent transfers and the federal and state fraudulent conveyance statutes.  Of particular interest to title underwriters, Tara discussed the 363 sale process, and how to confirm that clear title is being delivered. In the second segment, Mike Crowley, an associate in Riker Danzig’s Title Insurance practice, discusses the federal case Tithonus Partners II, LP v. Chicago Title Ins. Co., 2021 WL 4711284 (W.D. Pa. Oct. 8, 2021) in which a dispute arose over coverage after the insured owner conveyed its property to its 99.9% owner. After purchasing the property, which contained an assisted living facility as well as vacant land, the owner, Tithonus Tyrone, obtained refinancing from HUD for the property containing the assisted living facility and conveyed the 58 acres of vacant land to Tithonus Partners II, LP, who was the 99.9% owner and limited partner of Tithonus Tyrone. Tithonus Partners later subdivided the property and sold some of it to a third party.  In 2020, that third party commenced an action against Tithonus Partners, claiming that some of the conveyed property was not owned by Tithonus Partners.  Tithonus Partners then made a title claim with Chicago Title, who denied the claim because Tithonus Partners was not the Insured under the policy.  Tithonus Partners then sued Chicago Title and the parties cross-moved for summary judgment.  The Court rejected Tithonus Partners’ claim that it was a successor to an Insured and, further, found that the unambiguous policy language required 100% ownership.  The Court granted Chicago Title’s motion and the action was dismissed.
Season 1, Episode 4
Nov 5 2021
Season 1, Episode 4
Partners from Riker Danzig’s Real Estate Practice join Title Nerds hosts Mike O’Donnell and Bethany Abele for the fourth episode, along with fellow Riker Danzig attorney Kevin Hakansson.  In the first segment, Mike and Bethany have a conversation with Real Estate partners Josh Greenfield and Jim Maggio about working with title insurance underwriters on big commercial closings.  Along with discussing Schedule B exceptions, recommended ALTA endorsements and leasehold policies, Josh and Jim share some thorny title issues they’ve resolved with good title underwriters.  They stress how critical the service component is for title companies as a differentiating quality, given that fees are regulated in New Jersey.  Next, Kevin Hakansson, a Riker Danzig associate who recently joined the Firm, discusses the case Amran Property Investments, LLC, et al. v Fidelity National Title Group, Inc. in federal court (2021 WL 3883087) in which the plaintiffs, foreign real estate investors who had acquired housing properties in Chicago to lease to tenants, alleged claims of fraud and negligent misrepresentation by Fidelity, seeking to recover their entire property investment amount.  Following closing, plaintiffs were notified that the properties were uninhabitable and would require $1 million+ in repairs to be made rentable.  The Court granted Fidelity’s Motion to Dismiss and found that the plaintiffs failed to show that Fidelity aided and abetted the buyers’ fraudulent investment scheme, and had no duty to ensure the funds were not misused, as well as failing to state plausible tort claims.
Season 1, Episode 3
Sep 28 2021
Season 1, Episode 3
Title Nerds hosts Mike O’Donnell and Bethany Abele welcome special guest Mike Ham, the “Coolest Guy in Title Insurance,” to the podcast, along with fellow Riker Danzig attorney Desiree McDonald.  In the first segment, the Title Nerds hosts interview Mike Ham, who is a commercial real estate title insurance sales executive with Fidelity National Title Group and hosts a wildly popular podcast, “The Morning Spotlight Podcast,” in which he brings on interesting guests in real estate and other industries.  Mike talks about how he started in the title insurance industry, what sparked his podcast, how he helps his clients, and what it takes to be a successful title insurance salesperson. Then, Riker title team associate Desiree McDonald discusses the case of U & Me Homes, LLC v. Cty. of Suffolk out of New York State (148 N.Y.S.3d 682 (N.Y. Sup. Ct. July 16, 2021)) in which the Court held that a purported restrictive covenant on the property was void and granted the property owner’s motion for summary judgment.  In the case, the plaintiff had purchased an undeveloped parcel of land in Southampton that was split-zoned, with both portions permitting residential development.  When the plaintiff decided he wanted to build a single-family home on the property, he learned of a developmental restriction that would make his property of zero value.  The deed and title search report, however, had not contained any reference to any development restrictions, and indeed, the property had been transferred numerous times previously with no reference to a restriction.  The action was brought alleging that the covenant failed to run with the land and that the restriction was against public policy. The Court, very displeased with the County and Town, found no intent for the restriction to run with the land, and said the County and Town had overstepped their bounds and had reversed the role of government.  The Town and County then went after the title companies for coverage, and the Court decided that if money was ever to be paid, it should be by the government, not by the insurance companies, something not seen very often in Court’s opinions.