May It Please The Court

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Quote of the Day - “If I want your opinion, I'll ask you to fill out the necessary forms. - Unknown
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Sometimes An Opinion Is Just A Ruling, Not An Opinion

Rights in real property are made up of a bundle of sticks.  At least that's what our property law professor told us when we were in law school.  And he was pretty much right. 

It helps to keep that construct in mind when analyzing how mortgages, deeds of trusts, liens, leases, easements, options, subleases, life estates, remainders and a host of other legal rights in real property all relate to one another.  Especially when those rights run concurrently or overlap one another. 

It also helps to know what real property is.  Essentially, it's dirt.  Sure, it can include mineral rights, oil and gas rights and even rights to air and light, but it all relates to dirt one way or another.  That's why I'm sometimes called a dirt lawyer, not only because I practice in the area, but it's also just a convenient nickname.

When decisions regarding dirt law are issued by the court, we lawyers tend to get excited, especially when they clarify points of law that may not have been entirely clear before. 

Here's the setup.  First, the Mr. and Mrs. Ng leased a basement in a commercial building, subject to a lease provision that read:  "This lease shall be subject and subordinate to all underlying leases and to mortgages which may now or hereafter affect such leases or the real property of which the premises form a part, and also all renewals, modifications, consolidations, and replacements of the underlying leases and mortgages.  Lessee agrees to execute such estoppel letters or other documents required to confirm the same."

In other words, if the building is sold, the Ngs lease may get terminated.  Here, however, the clause above doesn't say "deeds of trust."  The Ngs consequently argued that a deed of trust didn't extinguish their lease when the property was sold by the trustee when the building sold.

The Ngs lost.  Again.  The Courts consistently held that deeds of trust and mortgages are essentially the same thing.  That's actually been the law for a very long time.  Nothing new.

Sometimes, appellate opinions get issued like the one in Aviel v. Ng because people get one chance to appeal a trial court decision.  Still makes interesting reading for dirt lawyers. 

Posted by J. Craig Williams on Wednesday, April 02, 2008 at 23:49 Comments (0)


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