Clayton Walker, Alaska Law Offices, Inc.
Anchorage, AK 99518 — 907-230-6988
Alaska Real Property Topics of interest, including but not limited to: Real Estate, property, title, landlord, tenant, leases, evictions, licenses, permits, development, ownership, easements, deed restrictions, life estate, deeds. Published in the Alaska Law Blawg. Editor, Clayton Walker. Publisher, Alaska Law Offices, Inc., 240 E. Tudor Rd. Ste. 230, Anchorage, AK 99503
Dear Clayton Walker, Jr.,
Congratulations! Your reappointment for the Platting Board has been approved by the Assembly for another three years, extending to October 14, 2018.
Attached is the Assembly Memorandum No. AM 617-2015.
Thank you so much for your time, dedication and service! You are greatly appreciated!
Sandy Johnson
Municipality of Anchorage — 
Current Planning
When it comes to Landlord Tenant relationships, you need to watch the details.
In general, most people want to be liked and don’t want to sow seeds of hate and discontent. When given the opportunity to agree and be amiable about something, and if there’s no obvious downside, we jump right up on that wagon and go for the ride. But when it comes to legal relationships, rethink that impulse.
When one moves into a new property there is the inevitable signing of lease agreements, walk-through, and a myriad of other formalities. Unfortunately, too often these formalities are either overlooked or ignored altogether.
Lease terms: Know what the lease says. Unfortunately most renters have little or no say in what the terms are. Many leases are just basic forms someone swiped off the internet and was never designed for your specific property. Know who’s responsible for what. Know what the late fee terms are. Know how to get a hold of your landlord or management company if there’s a problem. Many see this as just a routine formality, but if there are later problems it’s the lease terms that tell you what you can and can’t do to fix it.
The walk-through: this gets a lot of folks in trouble. We all want to be nice and not complain, to go along to get along. But your failure to note each item out-of-place is essentially your acceptance. Who wants to complain to the little ol’ lady showing you the apartment? You’re all best buds, aren’t you? They won’t do you wrong. What’s a little carpet staining, anyway? Well, two years later that carpet stain belongs to you. So does the scratched linoleum floor in the kitchen. And the cracked window. And the hole in the wall behind the kid’s bedroom door. And anything else you felt just wasn’t important enough to mention. Put all of this down on the report. Your security deposit depends upon it.
When things do go wrong: Sooner or later something comes up. The heat goes out, the entry walk lights burn out, the neighbors just bought their teenaged son a new bass guitar, or the local nocturnal recreational pharmaceutical distributor just moved in next door. Don’t hesitate to contact the landlord. Better yet, and often required, put such notices in writing. You don’t want to cause waves, after all, who wants to move out in the middle of winter? But your ability to properly address the problems can depend on who you notified when, and how. Landlords must give all notices in writing. Tenants, too, if they wish to get out of their lease under proper circumstances, usually must also notify the landlord of any problems in writing. When there’s a later argument about the right to terminate the lease, you will want to make sure you have all the documentation you can get.
Don’t be afraid to speak up and write things down. When getting into that new apartment, make sure you are not taking the responsibility for old carpets and broken fixtures. You can be sure that on the move-out report the landlord will list each anomaly they see. If it you didn’t note it at the beginning then they will probably blame you. Legal relationships require you to think about the details in the beginning or suffer consequences later.
These are just a few of the things to be thinking about in leases.
The annual right of passage for Anchorage property owners is the receipt in the mail of the Anchorage Board of Equalization green property appraisal card. If you do not agree with the property value as assessed you may appeal the valuation. You may appeal on the grounds that the appraisal is “unequal, excessive, improper or under evaluation.” Continue reading “Anchorage Board of Equalization — Property Taxes”
This was originally written for my EMS friends, but the basic concepts still apply: duty, breech, causation, and damages.
Setting the stage: It’s 3am (of course), and you just laid down after watching a Star Trek – The Next Generation marathon when the tones go off, and the dispatcher announces another of a long line of winter vehicle rollovers. Blah, blah, blah, icy roads and drunk drivers. Wind and snow, minor extrication, neck pain and minor bleeding from the head, the patient intoxicated but friendly. C-collar, the requisite uncomfortable backboard, and couple of big IVs just because, and a quick drop off at the local ER. The next afternoon you hear the patient began seizing shortly after you left the ER, and died a short time later from a massive subdural. Three years later you get the summons and complaint, naming you, your partner, your duty supervisor, your service, the hospital, the ER Doc, the radiologist, and the high school janitor as defendants in a lawsuit claiming negligence.
First, let’s dispense with the Good Samaritan defense. You were on duty and paid a decent hourly wage. Therefore, you’re not covered under the statute.
Negligence in the common parlance simply means you screwed up and you should have known better. However, in legal terms, “negligence” has a very specific meaning, and very specific elements that require evidence to reach the conclusion that someone is “legally” negligent. If the plaintiff is unable to prove each element of negligence, then the defendant cannot be found liable.
In order to be legally negligent, the plaintiff must show that the defendant had a duty to act (duty), that the defendant failed to follow the standard of required conduct (breach), that the failure was the cause of harm to the victim (causation), and that actual harm resulted (damages.) These four elements: duty, breach, causation, and damages, must all be proven in order to prevail. The Good Samaritan statute, which all EMTs seem to consider when thinking of negligence, speaks to two levels of negligence – simple negligence and gross negligence. Outside of this narrow statute, however, the level of egregiousness is relevant only in the amount of punishment given.
Let’s flesh out this discussion a bit. “Duty” is the easy one – did you have a duty to provide care to the patient. Yes or no. In the above case, for example, you were on duty and being paid to respond. Therefore, yes, you had a duty. This is the easiest of the four elements to prove, or to defend. You’re off duty and drive past an accident scene which already has numerous responders present. No duty, no negligence claim. Volunteers can sometime have a bit more difficult time, but the standard becomes whether you in any way held yourself out at the time of the event to be available to respond. If you were “on call,” duty attaches, if not, duty likely does not attach.
“Breach” is slightly more difficult to prove, but still often relatively easy. Did you do (or not do) something beyond or outside the industry standard? In other words, did you breach your duty to treat a particular illness or injury in an appropriate manner? This is gross simplification, of course, because evidence would be required at trial about what, exactly, was the “standard of care” required in the given circumstance. This makes this particular element the most wishy-washy, as dueling experts vie for the attention of the judge or jury.
“Causation” is the often missed elements by the lay public. This means that your actions, or inactions, actually caused the harm being alleged. If your patient was hit in the head by a pipe wrench, and you later drop him injuring his knee, you’re only responsible for the knee injury, not the whole shebang. This can often be difficult to determine. For example, a COPD patient presents with severe respiratory distress. You provide high flow oxygen, but not CPAP; when the patient continues to deteriorate you elect to sedate and intubate, causing dental trauma, increased swelling to the throat and worsening of the distress. The patient eventually arrests due to extreme hypoxemia. How much was your fault, if any? Would she have continued to deteriorate regardless of your actions?
“Damages” is reasonably straight forward, if the above elements have been met and determined. First, were there actual injuries that caused harm to the patient? It’s the “no harm, no foul” rule of negligence. You should have given Amiodarone, not lidocaine, for an SVT according to your medical standing orders. But the patient persevered and lived despite your best efforts. You had a duty to act, you breached that duty, but you did not cause compensable harm. While you may be on the soup line because you dangerously violated your standing orders, at least you won’t end up in court. However, if actual harm was caused by you, then you are responsible for those damages.
One can be negligent in the common sense but not be legally negligent. While this may be of little real comfort, EMTs should have a basic understanding of the general concepts of legal negligence. As for the scenario mentioned above? A good attorney will bring in a lot of questions. Was the alcohol masking signs and symptoms of head trauma the EMTs and hospital should have recognized earlier? Should the patient have been taken to a trauma center rather than just the local ER? Did the EMTs adequately describe for the ER staff the circumstances surrounding the crash such that the physician and staff could better assess the totality of the patient’s potential injuries? Obviously there aren’t enough details to make any reasoned response, and in the end it may take a judge or jury to flesh out all the answers. Such is the nature of the legal world.
Alaska Statutes address Eminent Domain at 09.55.240 through .460. When a governmental entity makes a taking, there are actually two portions to the valuation process. First, the taken parcel’s value and the remaining parcel’s diminished value. The government will focus the target’s attention solely on parcel taken. Typically people will forget to consider the affect to the remaining parcel.
Government offers frequently select valuation methods that support low prices. For example they will suggest that vacant land value should be measured by a gross proportion of the whole. By measuring the property as a percentage of gross they pay the lowest cost on the valuation.
I advise against providing the entity with a right of entry on the premises prior to resolving the property valuation and damages issues. Absent a project deadline the entity has no pressure related to making a full and fair offer on the property. You will generally fair better by withholding the right of entry permit. The following provides a summary of a few of the important provisions in Alaska.
Valuation Date
Hearings
Damages
To establish the individual components of each of these elements of damages you will need to have admissible evidence. The evidence will need to be reasonably certain in the measurement of the damages. You typically will need to enlist the services of not only counsel but, appraisers, site analysts and engineers to evaluate and present evidence supporting the value of these damages.
Valuation
Attorney’s fees and experts
You are not entitled to be compensated for your experts or your counsel unless the fact finder determines that the value the government offered you was more than 10% less than the value they should have offered to you. This rule pretty much guarantees that the government is always going to take your property at a discount to the actual full and fair value.
Q. IS THE AHFC HOME ENERGY REBATE TAXABLE INCOME? I HEARD THAT I WILL RECEIVE A 1099 FORM FROM AHFC. AHFC has received a legal opinion from the State of Alaska Department of Law that requires AHFC to issue a 1099-G to individuals who receive payments under this program. It is up to the recipient to contact their tax advisor about any possible tax consequences. – See more at: . Indeed AHFC reports the amount in block 6 and reports the amount as a “taxable grant.”
(a) Exclusion
(A) Dwelling unit
Utility customers participating in test of “smart grid” technology utilizing new solar photovoltaic system to be installed in homes by taxpayer utility were not required to include value thereof in income per IRC § 61 because same was excludable as IRC § 136 “energy conservation measure;” nor was IRC § 6041 information reporting required. Private Letter Ruling 201046013, 2010 PLR LEXIS 2352.
As IRC § 136 did not apply to homeowner who received one-time renewable energy credit from utility upon installation of residential renewable energy system, homeowner was required to include gain from sale of associated environmental credits and benefits triggered by resulting electricity generation in income and to credit for 30% of expenditure. Private Letter Ruling 201035003, 2010 PLR LEXIS 1080.
Payments to residential customers by exempt entity to promote energy efficiency through state program were not income to recipients under I.R.C. § 61 but were energy conservation subsidies excluded under section 136; because payments were not income to customers, entity did not have to report payments under section 6041. Private Letter Ruling 200717010, 2007 PLR LEXIS 93.
It would be nice if AHFC would obtain a private letter ruling establishing that Alaska homeowners are not liable for taxes on the AHFC Energy rebate. The cost of the letter agreement exceeds the benefit to any single homeowner. But, AHFC would establish a lot of good will and keep more money in Alaska instead of shipping it off to DC. Instead, they issue the 1099 and give you the following advice. The IRS also provides advice here.
The U.S. Treasury Department requires us to advise you that this written advice is not intended or written by our firm to be used, and cannot be used by any taxpayer, for the purpose of avoiding any penalties that may be imposed under the Internal Revenue Code. Written advice from our firm relating to Federal tax matters may not, without our express written consent, be used in promoting, marketing or recommending any entity, investment plan or arrangement to any taxpayer, other than the recipient of the written advice.
[Deed of Trust Foreclosure Sales
Many attorney’s knee jerk response is that deed of trust foreclosure sales don’t get set aside. This certainly is the general rule. However, Alaska has a long history of setting aside deed of trust foreclosure sales, even if they are only rare occasions. Alaska is particularly troubling in that the statute provides for redemption rights only to the extent provided for in the deed of trust. Because the statute does not require redemption rights the banks don’t allow any redemption rights. Accordingly, the courts have allowed sales to be set aside. Due process violation allegations have been made, but the Alaska Supreme Court has not reached the question by finding other reasons to allow the sales to be set aside. Accordingly, the issue remains open whether a due process claim could be successful. The following are excerpts taken from various pleadings and briefs filed in cases in Alaska. Rather than waiting to provide a more cohesive analysis on the topic, I thought I’d make these resources generally available to those that might either use them as a launching point or to engage in debate on the issues.
Alaska Courts set aside Trustee Foreclosure Sales
“Equity Abhors a forfeiture and will seize upon slight circumstances to relieve a party therefrom.” Rosenberg v. Smidt, 727 P.2d 778, 783 (Alaska 1986) citing, Jameson v. Wurtz, 396 P.2d 68 (Alaska 1974). The remedy of setting aside the sale will be applied in cases which reach unjust extremes. Rosenberg v. Smidt, 727 P.2d 778, 783 (Alaska 1986) citing Semlek v. National Bank of Alaska, 458 P.2d 1003, 1006 (Alaska 1969). If the bidders are allowed to claim the property after paying only a small fraction of the value of the property the matter has reached an unjust extreme. See, e.g., Rosenberg v. Smidt, 727 P.2d 778 (Alaska 1986).
The Alaska Supreme Court has stated that
“. . .defects in the mechanics of the trustee’s exercise of the power to foreclose may render the foreclosure sale voidable. Generally, mere inadequacy of price is not sufficient by itself to require the inadequacy of the sale price is (1) “so gross as to shock the conscience and raise a presumption of fraud or unfairness,” or (2) is coupled with other irregularities in the sale procedures, then invalidation of the sale may be justified.
Gross inadequacy is measured by reference to the fair market value of the property at the time of the sale. Fair market value for these purposes has been defined as not the fair “forced sale” value of the real estate, but the price which would result from negotiation and mutual agreement, after ample time to find a purchaser, between a vendor who is willing, but not compelled to sell, and a purchaser who is willing to buy, but not compelled to take a particular piece of real estate. Baskurt v. Beal, 101 P.2d 1041, 1044 (Alaska 2004).
Furthermore, “. . .a trustee has a duty to take reasonable steps to act impartially and in such a way as “not to sacrifice the debtor’s property.” Id at 1046.
Alaska Deed of Trust Bidders Do Not Earn BFP Status when on Inquiry Notice of Defenses to Sale or they are Bad Faith Purchasers.
Alaska Stat. 34.90.030 grants bona fide purchasers at a foreclosure sale a conclusive presumption that the provisions for a non-judicial sale were performed if the trustee recites the factual specifics of their compliance with statutory requirements. The Alaska Supreme Court has applied the statute in Rosenberg v. Smidt, 727 P.2d 778, 784 (Alaska 1986). In Rosenberg the court stated that to qualify as a BPF the purchasers must be good faith purchasers for value and without notice of any defect. Id. Furthermore, a bad faith purchaser or one on inquiry notice does not become a BFP due to the recitations in the Trustee’s deed. Semlek v. National Bank of Alaska, 458 P.2d 1003 (Alaska 1969).
1) Foreclosure Purchaser Inquiry Notice may Defeat BFP Status:
In addressing the quality of the bidder’s “notice,” the property owner only must show the bidders were on inquiry notice of potential defects in the sale to deprive the Bidders of BPF status. Modrok v. Marshall, 523 P.2d 172 (Alaska 1974).
“It is a settled rule of property that circumstances, which suggest outstanding equities in third parties, impose a duty upon the purchaser’s to make a reasonable investigation into the existence of a claim. Given suspicious facts, the status of bona fide purchaser turns upon whether there was a prudent inquiry into their import.” Modrok v. Marshall, 523 P.2d 172 at 174 (Alaska 1974).
Facts that put bidder on inquiry notice of Defects of sale include:
1) Insufficiency of the Sale Price in comparison to the fair market value of the property sold;
2) Absence of the Owner at the Sale along with insufficient Trustee recitation of facts regarding the owners actual notice of the sale date.
When the owner is absent from the sale and the trustee’s deed fails to recite factual details in the deed then a bidder is on inquiry notice and is deprived of BFP status. The court explained that requiring factual recitals tends to assure the requirements of law concerning mailing and delivery are complied with. In the present case the trustee’s deed identifies the notice of sale which contained a specific sale date which was different than the actual sale date. The trustee’ deed is completely silent on why the sale was continued or whether any factual steps were taken to apprise the owner of the new sale date. This lack of any facts addressing this absence of notice to the Owner placed the Bidders on inquiry notice and deprived them of their BFP status.
2) Bad Faith Purchaser Conduct Defeats BFP Status:
A bad faith purchaser or one on inquiry notice does not become a BFP due to the recitations in the Trustee’s deed. Semlek v. National Bank of Alaska, 458 P.2d 1003 (Alaska 1969). The Plaintiff’s following conduct caused their conduct to be bad faith:
1) They created a collusive buying group to chill the sale and lower the auction price.
2) They failed to address make sufficient inquiry into the items in which they were on inquiry notice;
3) They failed to notify the owner of the sale so that she could timely object to the sale during the free statutory sale cancellation procedure.
Bidders had a duty to not chill the sale and take deliberate steps to lower the auction sale price. .” Cf. McHugh v. Church, 583 P.2d 210, 214 (Alaska 1978). The trustee must take “reasonable appropriate steps to avoid sacrifice of the debtor’s property and his interest. Id. “The trustee under a deed of trust generally regarded as owing a fiduciary duty to both the trustor and the beneficiary and is required to perform his duties impartially. McHugh v. Church, 583 P.2d 210, 214 (Alaska 1978). The trustee must take “reasonable appropriate steps to avoid sacrifice of the debtor’s property and his interest. Id. The Bidders were on notice that the borrowers were occupying the house before bidding on the property.
3) Possible factual Allegations
COMMERCIAL LEASE DEFINITIONS PRIMER
Commercial leases contain terms that many people don’t know and definitions would help them. Some commercial leases are the subject of complex, lengthy, and intense negotiations. To be proficient at such negotiations, one must be familiar with certain basic concepts and be able to anticipate and protect one’s client from problems that may occur during the term of the lease. This post addresses definitiions of some of the principal legal and financial terms applicable to commercial leases. The most important legal and financial terms in commercial leases include the following:
Rent, including base rent, percentage rent, increases in rent, taxes, and operating expenses, and rent abatement;
Rules and regulations of landlord
Continue reading “ALASKA COMMERCIAL LEASE DEFINITIONS PRIMER”
Supreme Court Nos. S-14580/14600
In a single occurrence, a child fired a single shot from a revolver belonging to his parents, killing a friend and seriously wounding another. The victims parents sued the child, his parents, and their insurance company.
The insurance policy provided a $300,000 limit for “Each Occurrence” of “Personal Liability.” The trial court multiplied the limits by the number of insured and ruled that the policy afforded $900,000 of coverage. The trial court explained that the child and his parents were each entitled to a separate per-occurrence policy limit.
The Knowles owned rental property. Fidelity Co-operative Bank (Fidelity) owned the mortgage on the property. Nova Casualty Company (Nova) insured the property. A 2008 tropical storm caused substantial damage to the building interior. The Town closed the building. The Knowles submitted a claim for reimbursement for the water damage with Nova, which denied the claim. Due to Nova’s denial of coverage the Knowles could not afford to repairs the building. The building remained vacant and was vandalized. Nova also refused to cover the vandalism claim. The Knowles defaulted on their mortgage due to the lack of rent. Rather than foreclosing In 2010, Fidelity, individually and as assignee of the Knowles, pursued the insurance claim against Nova for the property losses and the lost business income under the all-risk insurance policy. The trial court granted summary judgment for the insurer. The Appeals Court reversed and ordered the parties to trial on the damage claims.
The full decision is here.
If you are a lender, property owner, property manager or real estate agent with a client that has incurred property damage that you think an insurance policy should cover, give us a call at 907-375-9226 for an appointment to review the matter.
Alaska Law Offices, Inc.