2023 Case Law and Legislation Update

By: Amelia K. Steindorff, Reynolds, Reynolds & Little, LLC

As 2023 draws to a close, it’s a good idea to be familiar with these 2023 cases and statutes that Amy Steindorff has summarized for us.

Case Law Update:

Eminent Domain and Taxation
Tyler v. Hennepin County, 598 U.S. 631 (2023)
U.S. Supreme Court held that County’s retention of excess funds from tax sale was a violation of the Fifth Amendment’s takings clause and the Eighth Amendment’s excessive fines clause.

Adverse Possession
Laflore v. Huggins, 2023 Ala. LEXIS 116; 2023 WL 6934108 (Oct. 20, 2023)
Boundary line dispute with adverse possession allegation, culminating in the Supreme Court holding that record evidence failed to demonstrate exclusive possession. Good refresher on elements of adverse possession!

Common Law Marriage
Ellison v. Stokes, 2023 Ala. Civ. App. LEXIS 47 (Apr. 21, 2023)
Court of Civil Appeals reversed the lower court’s dismissal of the divorce complaint. This opinion analyzes Ala. Code § 31-1-20, enacted January 1, 2017, makes common law marriage illegal.

Lafayette Land Acquisitions II, LLC v. Walls, 2023 Ala. LEXIS 44; 2023 WL 3029817 (Apr. 21, 2023)
Analysis of contract interpretation and enforcement of real estate sales agreement.

Cooper v. Durham, 2023 Ala. LEXIS 101; 2023 WL 5493255 (Aug. 25, 2023)
Correct measure of damages for breach of real estate sales agreement is difference between contract price and property’s market value on date of breach.

Covenants and Restrictions
Cole v. Davis, 2023 Ala. LEXIS 29; 2023 WL 2620610 (Mar. 24, 2023)
This case is a good review of relative hardship, character of neighborhood and waiver or acquiescence in determining whether to enforce restrictive covenants.

Barber v. Landrum, 2023 Ala. Civ. App. LEXIS 56; 2023 WL 3557747 (May 19, 2023)
Court of Civil Appeals reviewed common-law dedication and abandonment in determining whether to declared county road public.

Ammons Properties v. Spraggins, 2023 Ala. LEXIS 58; 2023 WL 3558274 (May 19, 2023)
Driveway easement case, where Supreme Court held circuit court had jurisdiction of condemnation petition, easement existed, and servient owner was not entitled to compensation.

Smith v. Stowe, 2023 Ala. LEXIS 106; 2023 WL 5989274 (Sept. 15, 2023)
Prescriptive easement case establishing an easement over both neighboring property and railroad crossing.

Equitable Mortgage
Deutsche Bank National Trust Co. v. Leo, 2023 U.S. Dist. LEXIS 61993; 2023 WL 2783681 (Mar. 3, 2023)
Northern District affirmed bankruptcy court’s order that debtor’s undivided ½ interest in real estate was the property of his bankruptcy estate, and was free and clear of Deutsche Bank’s legal and equitable mortgage claims.

Exclusion 3(a)
Salas v. Commonwealth Land Title Insurance Company, Case 22-12264 (11th Cir. Oct. 18, 2023)
While this is an appeal from a Florida case, it provides a nice analysis of 3(a). 3(a) excluded coverage for liquidated damages or penalties in real estate purchase agreement, and policy did not provide coverage for breach of contractual duties.

Smith v. Smith, 2023 Ala. LEXIS 105; 2023 WL 5988449 (Sept. 15, 2023)
Not all heirs named in lawsuit, despite being indispensable parties. Supreme Court held “it is unclear whether any of the remaining heirs can be made parties … Because it does not appear that there was any attempt to join the remaining heirs as parties.” Remanded to join “if feasible.” This is a troubling opinion!

Homestead Exemption
Matherly v. The Citizens Bank, 2022 Ala. LEXIS 105; 2022 WL 15683592 (Ala. 2022)
Supreme Court holding that conveyance of homestead property signed by only one of two spouses is valid, subject only to the $5,000.00 exemption under Alabama Code § 60-10-40. Does this change the complexion of curative work?

Destruction of Joint Tenancies
Upchurch v. Upchurch, 2023 Ala. LEXIS 38; 2023 WL 2818554 (Ala. 2023)
Execution of sales contract by joint tenants demonstrated their intent to sever the tenancy and create a tenancy in common. Excellent analysis by Justice Cook of situations where joint tenancy is severed.

Lis Pendens
R.K. Allen Oil Co. v. MUSA Props., LLC, 2023 LEXIS 57; 2023 WL 3559475 (May 19, 2023)
On writ of mandamus, Supreme Court held that a partial summary judgment dismissing counterclaims was not enough to allow for expungement of lis pendens. Litigation had not yet concluded in its entirety.

Morrison v. May, 2023 Ala. LEXIS 111; 2023 WL 6528473 (Oct. 6, 2023)

Williams v. Mari Properties, LLC, 2023 Ala. LEXIS 93 (Aug. 18, 2023)

Anderson Realty Group, LLC v. King, 2023 Ala. LEXIS 52; 2023 WL 3557915 (May 19, 2023)
Analyses of redemption process and jurisdiction, as well as determination of the definition of “preservation improvements.”

Statue of Limitations for ALSLA
Mississippi Valley Title Insurance Company v. Pro Abstract Co., 2022 U.S. Dist. LEXIS 223165; 2022 WL 17585256 (Dec. 12, 2022)
Middle District of Alabama denied a motion to dismiss by title agent, holding that whether the agent was providing legal services or acting as a title agent was a question of fact. Case settled in June 2023.

Legislative Update:

Notaries Public, Act 2023-548
Amendments to Ala. Code § 36-20-70 et seq.:

  1. Mandates training program for new applicants and renewals
  2. Permissible fee increase to $10.00
  3. Bond requirement increase to $50,000.00
  4. Clarifies requirements for remote acknowledgement
  5. List of misdemeanor and felony offenses
    Effective Sept. 1, 2023

Remote Acknowledgement Requirements:

  1. Recorded, two-way audio-video communications (7-year retention)
  2. All documents used during the virtual acknowledgement must be provided to the notary for authentication and original signature
  3. Recording must contain:
    • Date and time
    • Description of the relevant documents
    • Notary’s attestation of location
    • Description of how the signatory was identified
    • Clear image of signatory and government-issued ID

Residential Wholesaling
Act No. 2023-201
Relating to residential real estate transactions; to require buyers to make certain disclosures to homeowners and other interested parties that the buyer intends to engage aspects of a wholesale transaction; and to deem unenforceable certain unfair service agreements purporting to establish a long-term right to list between real estate companies and residential real estate owners.
Effective Aug. 1, 2023

Alabama Department of Insurance
Act No. 2023-104
Amending Ala. Code § § 27-7-5, 27-7-14.1, 27-9A-6, 27-9A-8, 27-9A-9, 27-9A-11, 27-25-4.1 and 27-25-4.3
Deletion of requirement for title insurance agents to complete a prelicensing course.
Effective Jan. 1, 2024

Acquisition of Real Property
Act No. 2023-332
Alabama Property Protection Act
Prohibits certain governments or governmental entitles from acquiring certain real property from the state.
Effective Aug. 1, 2023

Recording Judgments
Act No. 2023-520
Amends § § 6-6-544 and 570
Further legislation regarding recording certain judgments concerning real property.
Effective Sept. 1, 2023

Judges of Probate
Act No. 2023-536
Amends Ala. Code § 35-2-57 to specify the method for a judge of probate to record that an electronic map or plat has been vacated.
Effective Sept. 1, 2023

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