Hamm v. Hazelwood, Record No. 151158, June 23, 2016

A woman gifts her interest in real property to her sister.  The deed of gift contained a possibility of reverter provision that stated,

“The PROPERTY hereby conveyed shall AUTOMATICALLY REVERT to [grantor], in the event [grantee’s son], ever acquires any interest therein by grant, inheritance or otherwise or is otherwise permitted to occupy, even temporarily, any portion of said property.”

The grantee later died intestate.  The administrator of her estate filed a petition for aid and direction seeking a judicial order declaring the possibility of reverter void as an impermissble restraint on alienation. The circuit court held that the provision was void and unenforceable under Virginia law, and struck the provision from the deed.

The Supreme Court reversed the circuit court’s holding explaining that not all restraints on alienation are impermissible.  The Court explained that when there are no “words of limitation” in a deed of conveyance, the conveyance is treated as a transfer of a fee simple interest unless a contrary intention is manifested.  A contrary intention includes the express reservation of a contingent reversionary interest.  However, such an express reservation of a contingent reversionary interest is only permissible where the restraint on alienation is limited in duration and as to the number of persons to whom transfer is prohibited.  The Court noted that the language of the provision was limited in scope and duration as it applied only to the grantee’s son and that the grantor intended to create a fee simple defeasible upon a condition subsequent rather than a fee simple absolute.

At least the administrator of the estate found out rights of the parties before distributing the estate to the heirs and risking the loss of their interests.

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Parrish v. Federal Nat’l Mortgage Assoc., Record No. 150454, June 16, 2016

 

General District Courts Do Not Have Jurisdiction In All Unlawful Detainer Actions!

The facts of this case are pretty straightforward – Homeowners borrowed a sum of money from lender using the home as collateral.  The trustee foreclosed on the property and conveyed the land to the lender.  The lender eventually filed an unlawful detainer action in the general district court.  In the general district court, the homeowners asserted that the foreclosure was invalid because the deed of trust prohibited foreclosure if the homeowners submitted a completed loss mitigation application more than 37 days prior to the foreclosure sale.  The homeowners alleged that they had submitted such application, and that the lender instigated the foreclosure despite the pending application.  The general district court awarded the lender possession, and the homeowners appealed to the circuit court.

In the circuit court, the lender moved for summary judgment asserting that the deed of trust was evidence of its right of possession.  The lender also argued that the circuit court should not consider the homeowners defense contesting the validity of the foreclosure because the general district court lacked subject matter to try title in an unlawful detainer action.  The homeowners argued that the circuit court could not consider the pleadings filed in the general district court, and referred to in the lender’s motion, because the appeal was de novo.

The Supreme Court reiterated that a circuit court’s appellate jurisdiction is derivative of and limited to the jurisdiction of the general district court.  The Court explained that a general district court has no subject matter jurisdiction to try title to real property, even though some actions for unlawful detainer turn on the question of title.

The Court elaborated on types of unlawful detainer, stating that there are two general types: (1) that in which the plaintiff must show prior actual possession, and (2) that in which the plaintiff must show a right of possess acquired after the defendant’s entry.  The Court explained that in the second category of cases, there are situations in which the defendant could have a good-faith basis to contest the title, and in those cases, the general district court does not have subject matter jurisdiction.  In such cases, if the general district court determines that allegations are sufficient to assert a bona fide question of title, it lacks the subject matter jurisdiction to proceed with the unlawful detainer action.

In this case, because the homeowners alleged that the deed of trust prohibited foreclosure if a completed loss mitigation application was pending 37 days prior to foreclosure, that they had timely submitted such an application, and the application was pending when the foreclosure was instigated, the homeowners raised a bona fide question of title and the general district court and the circuit court lacked jurisdiction.

For practitioners, this case serves a useful lesson – where there could be a legitimate question of title, bring the unlawful detainer action in circuit court to avoid having it kicked on jurisdictional grounds.

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Harold Clarke, Director, Virginia Department of Corrections v. Daniel Galdamez, Record No. 151022, June 9, 2016

In a 4 to 3 opinion, the Supreme Court affirmed a habeas court’s decision to grant a writ of habeas corpus, reasoning that it was plausible that a trier of fact could find that the petitioner had not known he had hit another motor vehicle with his own vehicle.

While driving his vehicle westbound out of a parking lot onto a roadway, Daniel Galdamez failed to yield to traffic traveling in northbound lanes and struck another vehicle in the northbound lane.  The vehicle that was struck crossed a median and entered the southbound lanes as a result of the impact.  Rather than stopping his vehicle, Mr. Galdamez continued traveling until he reached a friend’s home.  He returned to the scene of the accident approximately fifteen minutes later, before the police arrived.  Mr. Galdamez was charged with felony hit and run and driving while intoxicated.

Mr. Galdamez is a foreign citizen and had explained to his attorney that he did not want to lose his immigration status in the United States.  His attorney negotiated a plea agreement reducing the felony to a misdemeanor and a stipulated sentence requiring Mr. Galdamez to spend ten days incarcerated.  Mr. Galdamez agreed to plea agreement.  The Department of Homeland Security then informed Mr. Galdamez that his temporary protected status would be revoked as a result of having two misdemeanor convictions.

Mr. Galdamez initiated a habeas proceeding alleging that his attorney had given him erroneous advice, that he would not have accepted the plea agreement if he knew it could affect his temporary protected status, and that he had viable defenses that may have succeeded if he had gone to trial.

This is the part of the opinion that is interesting.  The habeas court concluded that Mr. Galdamez had a colorable claim of prejudice under the Strickland test because he had a “viable defense”to the hit and run charge and it was “possible that the fact finder, under the totality of the circumstances, would have acquitted Mr. Galdamez of the hit and run charge.”  The Supreme Court agreed, and affirmed the opinion of the habeas court.

§46.2-894 of the Virginia Code requires drivers to stop “immediately” at the scene of an accident.  According to Mr. Galdamez’s testimony, he did not stop immediately, rather he returned to the scene after he realized he had hit something.  But, is his testimony that he did not realize he had hit something credible?  The habeas court thought so, and the Supreme Court is bound by that determination unless it is plainly wrong or without evidence to support it.  The Supreme Court concluded that because Mr. Galdamez’s affidavit stated that until he saw the damage to his car, he did not realize that he may have struck another vehicle, and because the path of the vehicles after impact left open the possibility of whether Mr. Galdamez actually saw the other vehicle, there was sufficient evidence to support the conclusion that there was a factual issue for the trier of fact to determine.

Is it rational to believe that Mr. Galdamez did not know he struck another vehicle?  If I were the trier of fact, I would probably say no.  But, my husband might say yes, maybe he thought he hit the curb.  The point is, it is debatable and that is ultimately the role of the trier of fact.  There was no evidence opposing Mr. Galdamez’s testimony or the police report.  If there had been, perhaps the outcome would have been different.

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