New Jersey Court Holds that Ingress/Egress Easement May be Modified to Accommodate Parking

The Superior Court of New Jersey, Chancery Division, recently found that an easement for ingress and egress granted from one property to another can be modified to allow for parking where the intent of the grantor and the Township’s parking ordinances dictate as such. See Rasulova v. Aguila, BER-C-39-21, (N.J. Super. Ct. Ch. Div. 2021). In 2000, Jonathan Lesko bought 116 and 118 Grove Street in Mahwah, New Jersey, also known as Lots 57, 58, 59, and 60.

Connecticut Supreme Court Holds Lender Entitled to Tribal Sovereign Immunity as an “Arm of the Tribe”

In a case of first impression, the Connecticut Supreme Court recently held that (1) an entity claiming “arm of the tribe” status for purposes of tribal sovereign immunity bears the burden of proving entitlement to that status; and (2) tribal immunity extends to an officer of the entity, so long as the officer acted within the scope of his or her authority and the tribe, rather than the individual officer, is the real party in interest. See Great Plains Lending, LLC v. Dep’t of Banking, 2021 WL 2021823 (Conn. May 20, 2021).

New Jersey Appellate Division Finds Lack of Endorsement Does Not Prevent Valid Transfer and Negotiation of an Electronically Deposited Check

In a decision approved for publication, New Jersey’s Appellate Division recently affirmed the dismissal of an enforcement action against an issuer of a dishonored check, finding that the lack of endorsement on the electronically deposited check did not prevent the valid transfer and negotiation of the check. See Triffin v. SHS Grp., LLC, 466 N.J. Super. 460 (App. Div. 2021). 

Washington Appellate Court Finds Release of Lis Pendens Not Effective Until Recorded

The Court of Appeals of Washington, Division Two, recently held that the release of a lis pendens is not effective until it is recorded. Furthermore, it held that where there is a recorded lis pendens on a property on the day it is sold, the purchaser of that property cannot claim to be a bona fide purchaser for value even where the release of that lis pendens was effectuated the day prior. See Guardado v. Taylor, et al., 2021 WL 1985442 (Wash. Ct. App. May 18, 2021). 

New York Federal Court Finds “Compelling Circumstantial Evidence” of Credit Union Mailing Sufficient for Agreement to Arbitrate

The United States District Court, Eastern District of New York, recently found that where a credit union is able to show “compelling circumstantial evidence” that it sent an Arbitration Agreement to one of its members, such mailing is sufficient to constitute “an agreement to arbitrate” under the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16, even where the member alleges that she did not receive the mailing. Filipkowski v. Bethpage Fed. Credit Union, 2021 WL 826016 (E.D.N.Y. Mar. 4, 2021).

New York Court Finds “Occasional Forays” by True Owner is Insufficient to Defeat Adverse Possession Claim

The New York Supreme Court, Nassau County, recently dismissed a motion to quiet title, finding that “occasional forays” by a true owner is insufficient to defeat the exclusivity element of an adverse possession claim where the adverse possessor has alone cared for or improved the  property as if it were their own. See Strenger v. Gellman, 609487/2020 (N.Y. Sup. Ct. Feb. 2, 2021).

Arizona Appellate Court Holds Insured May Settle a Third-Party Claim When Insurer Defends Under a Reservation of Rights

The Court of Appeals for Arizona, Division 1, recently held that in the title insurance context, when an insurer agrees to defend its insured against a third party but reserves the right to challenge coverage, the insured may independently settle with the third-party claimant without violating the insured’s duty of cooperation under the insurance contract. Fid. Nat'l Title Ins. Co. v. Osborn III Partners LLC, 483 P.3d 237 (Ariz. Ct. App. 2021). 

'Deely' Expands Lender's Use of Equitable Subrogation to Protect Priority Status

All practitioners involved in New Jersey real estate litigation need to be aware of the Appellate Division decision in Tr. 2005-3 Mortg.-Backed Notes, U.S. Bank Nat’l Ass’n as Tr. v. Deely, 2021 WL 520063 (App. Div. 2021), which expands the situations in which a lender can use the doctrine of equitable subrogation to protect the priority status of a lien by holding that a lender’s knowledge of a prior competing lien does not bar the application of the doctrine.