Purchased Property at Foreclosure Sale

Foreclosure SaleForeclosure Sale — Buyer’s Perspective

When people buy property at Foreclosure sales they often find that the house came with former owners still occupying the house.  How do you get them out?  In Alaska, you the new owner, must file an ejectment action, not a Forcible Entry and Detainer (FED) action.  The cases are substantially similar.  However, the FED matter provides very short statutory deadlines that normally is faster.  It is the wrong type of action and will likely slow the process.

 

 

Important Issues in Foreclosure Sales

There are two significant issues that resolve these matters.  First, does the buyer qualify as a Bona Fide Purchaser or just a purchaser.  When the sale is to a BFP the sale may only be set aside if the sale itself is Void.  If the purchaser fails to qualify for BFP status then a court may set aside the sale for any voidable reason.

Bona Fide Purchaser — Beware of Void Sales

Bona Fide Purchasers are third parties, wholly unrelated to the seller.  They are purchasers that buy at the sale without notice of any defenses to the sale.  Sometimes BFP is described as one that has an empty head and a white heart.  The court protects these from all but the following six categories of sale problems:

  1. The foreclosing party never had the power of sale conferred on them.
  2. The debtor was not in default.
  3. The debt was fully paid before foreclosure.
  4. The time and place of sale was never published.
  5. The price was so inadequate that it shocks the conscience.
  6. The foreclosure sale  proceeded despite a court order staying the sale, including an automatic bankruptcy stay.

If the sale is to the creditor in an offset bid, or to any party related to the creditor the sale may be subject to almost any attack that a debtor might find that would sound like it created an inequitable result.

Bank RESPA Violations

The recent changes in the Federal Real Estate Settlement Procedures Act, 12 U.S.C. 2605 (RESPA) have given rise to a host of new claims that the banks failure to follow RESPA regulations should invalidate sales.  The regulations at 12 CFR 1024.41 gave rise to HUD letter 2013-10.  Some debtors claim the banks violation of the regulations renders sales void.  However, 12 U.S.C. 2605(f) only provides for a private right of action.  The remedies are also limited to money damages, and costs against the loan servicer.  There are no provisions providing for voiding a sale or a right of action against a BFP.  The statute also addresses the scope of intended preemption — which they limit to only preemption of any conflicting state law notice periods.

The RESPA regulations creates many complicating requirements.  The proof issue on some elements are subject to factual interpretation.  Matters with subjective facts generally aren’t resolved short of trial.  For example, creditors can’t take action after a timely and qualified request is received until it is resolved.  A request is qualified if it has all the information necessary to evaluate the request.  These two issues are fact intensive and subject to a fact finder’s consideration of reasonableness in the creditor’s interpretation.   Debtors are using these issues to avoid tendering property when the bank buys the property.

Post Foreclosure Sale Representation

An Alaska Superior Court today joined both Alabama and Michigan courts in holding that RESPA violations do not state an adequate reason to find a sale void.  Coleman v. BAC Servicing, 104 So. 3d 195, 201 (Ala. Civ. App. 2012) Servantes v. Caliber Home Loans, Inc. 2014 U.S. Dist LEXIS 170667 (E.D. Mich., Dec. 10, 2014).  The debtor has an obligation to bring a preforeclosure action to  enjoin a sale and cannot void the sale later.  Wells Fargo Home Mort., Inc. v. Neal, 398 Md. 705, 922 A.2d 538 (2007); Lacy-McKinney v. Taylor, Bean & Whitaker Mort. Corp., 937 N.E.2d 853, 864 (Ind. Ct. App. 2010); Campbell v. Bank of Am., N.A., 141 So. 3ed 492 (Ala. Civ. App. 2012).

A BFP is entitled to possession as against any other person.  A.S. 34.20.090(b).  The trustee’s deed is conclusive evidence of sale compliance in a suit between a BFP and the prior owner. Id., Bauman v. Day, 892 P.2d 817 (Alaska 1995).

Real estate foreclosures, from either the debtor or creditor’s side, can be complicated by many things.  Having a lawyer in your corner to help navigate these issues is always helpful.  Our clients today were grateful for the outcome in their matter.  At the end of the day, the facts marshaled for our client, the legal research extending across the nation and our written and oral presentation skills delivered.

 

 

 

 

 

 

 

 

 

 

 

Alaska won’t Defend Employees in 1981 Claims

Sheldon Slade filed an action against an Alaska State Employee alleging a 42 U.S.C. 1981 claim.  That claim asserts that the employee discriminated against him. That claim cannot be asserted against a State. The Alaska Attorney General certified that the employee was acting within his scope of employment when Slade’s claim arose.  So, the State of Alaska agreed to defend the employee.

Alaska then moved to substitute the State for the employee using Alaska Statute the procedure in AS 09.50.253(c).  Once the State was substituted for the employee the State moved to dismiss the 1981 claim.  The Superior Court dismissed Slade’s 1981 claim.  Slade appealed.  The Alaska Supreme Court accepted the appeal on the issue of whether dismissal of the § 1981 claim violated the Supremacy Clause of the United States Constitution and Slade’s constitutional right to a jury trial.

Alaska statute AS 09.50.253(f) specifically precludes the use of the .253(c) procedure in the face of Constitutional claims.   Apparently this fact was pointed out in Slade’s opening brief or the Amicus Brief filed the U.S. Department of Justice.  Based on the opening briefs the Alaska Attorney General conceded defeat and sought dismissal of the appeal due to the concession.

The question remains, will Alaska not defend its employee’s acting in the scope of their employment?  Or, will Alaska defend them on the merits and simply not seek to dismiss the 1981 action after using the .253(f) procedure?

If you’ve been sued for a 1981 discrimination claim in your employment, you should seek independent counsel and not rely solely on your employer.

 

 

 

In the Supreme Court of the State of Alaska SHELDON E. SLADE, ) ) Petitioner, ) v. ) ) STATE OF ALASKA, DEPARTMENT ) OF TRANSPORTATION & PUBLIC ) FACILITIES, ) ) ) Respondent. ) ) Supreme Court No. S-15352 Order Order No. 87 – September 26, 2014 Trial Court Case # 3AN-11-08466 CI

 

Watch the Details When Leasing

When it comes to Landlord Tenant relationships, you need to watch the details.

Representing Landlords or Tenants in Lease Review
Representing Landlords or Tenants in Lease Review

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.

 

Transaction Questions

Please consider and answer the following questions to help us efficiently evaluate and structure your transaction, and help you address issues prospectively.

General information about the proposed transaction:

1. Is there a confidentiality agreement in place?

2. Is the transaction an asset purchase or a purchase of the ownership interest of an entity?

a. Will the transaction cause a termination of the entity?

b. Would you like the purchase of the ownership interest of the entity to be treated as an asset purchase?

3. What is the purchase price?

a. Are there any adjustments to the purchase price (e.g. floors/ceilings/allowances)?

b. Will the purchase price be paid in installments?

c. Is there a reason to hold back any part of the purchase price?

4. How is the purchase price allocated?

5. Is the transaction seller-financed?

a. What are the terms of the promissory note?

Excessive Police Responses

  Anchorage, like many other big cities nationwide, has created a whole new field of revenue generation.  Traditionally we all just sucked it up that there would be nice parts of town, bad parts of town, and a few parts of town that were truly horrendous.  The folks up in the mountain chalets of Hillside or Rabbit Creek would comfortably look down upon the rest of us, knowing and accepting the fact that their hard earned property taxes would go to police responses elsewhere.  And, despite a bit of angst over State Trooper versus Anchorage Police response areas, were mostly OK with that.

But with ever increasing budget needs, the seemingly ever decreasing available funds, municipalities like Anchorage are always seeking additional sources of revenue.  Heavily taxed home owners are getting sick and tired of having to foot t he bill for that ever increasing police budget.  Anchorage, like most cities, also often has problems with a few gregarious hot spots of crime and infamy.  Those truly notorious places that seem to warrant their very own police substation.  Crack houses, hotels of ill repute, fighting in-laws, you name it.  So, in order to kill two birds with stone,  Anchorage has adopted Excessive Police Response regulations.

Excessive Police Response regulations allow municipalities and other jurisdictions to set limits upon how many times police may respond to a certain address, and charge fees for each response beyond that number.  Seems simple enough.  But this does come with questions:  what happens in medical emergencies?  how about the ol’ man beatin’ his ol’ lady around every Saturday night?  How about child abuse calls?  Will the number of responses allowed prevent folks from calling when they really need help?

The State of Alaska has statutes that outline what municipalities and others may or may not do in these situations.  Fortunately the statutes are pretty specific, and cover everything from the amount allowed per call, notice to the property owner that polices responses are happening, and certain exemptions that do not count toward the excessive number.

What does this mean for you?  Well,  hopefully nothing.  But are you a property owner?  Are you a slum lord extraordinaire owning several blocks of housing in the seedier parts of town?  Perhaps you have just one problem tenant that enjoys a, shall we say, second income from nocturnal recreational pharmaceutical sales?  Anchorage’s Excessive Police Response regulations place the burden not just on the resident of the property being responded to, but to the property owner as well.  Considering who is likely to actually have money to pay, I think we all know who it is the Muni would  be coming after.

The Excessive Police Response statutes and regulations can be complicated for those not used to reading reg-speak.  What does the State require of municipalities? Do the Muni’s regulations follow the requirements of the enabling state statutes.  When confronted with notices of pending fines one should look carefully to ensure the statutes and regulations are  being followed correctly.  But don’t waste time, failure to follow through on any required administrative  hearings may waive any claim you have against the Muni.  Study the regulations yourself, or call someone who already knows how they work.  As in anything, know the law and know your rights.

 

A Negligence Primer — Good Samaritan Defense

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.

Are You An Employer? Workers Compensation Required?

Do you laugh at the home and garden shows on cable TV?  Do you snort in derision watching those folks spend tens of thousands of dollars on contractors?  Do you smirk to yourself because you know you can do the same thing better, faster, and cheaper?  Well of course you do, you’re an Alaskan.  Even before Home Depot and Lowes came to town we had Spenard Builder’s Supply, Eagle Hardware, and you could quote the price of a spanner wrench at your local ACE store.  When it comes to adding on or building from scratch, no one beats an Alaskan at getting things done.  And not just with Visqueen, blue tarps, and duct tape, either.

On a normal day you could sheetrock a hanger holding Alaska Airlines’ latest 737-stretch in an easy day’s work.  But what happens when you only have a morning?  Perhaps your spouse has lined you up for a snowshoe softball game this evening, or some fish is running in some creek somewhere.  Unfortunately your best bud is rough-necking on the Slope this week, and your brother is sleeping off a 4-pack of wine coolers on a beach in Hawaii.  What now?

Well, normally if you needed a little extra help you’d head on down to Beans Café where there are plenty of folks looking for honest work.  The modern version is to check on Craig’s List from your smartphone while driving to the local man store.  Either way you’ll find some chap willing to hammer, screw, lay tile, hang ‘rock, or just generally clean up your mess when you’re done.  For a hundred bucks or a promise of fresh salmon, Alaskan men will do most anything.

Unfortunately, you have now begun to tread upon the realm of The Man.  The Government.  The State.  The usurious villainy of a democratic republic.  A homeowner, or anyone else for that matter, who chooses to hire someone to do something, must comply with all the rules and regulations just like those fancy contractors who have websites and their names on their pickups.  This can be a rude awakening for many.  You just needed someone to haul Trex around the house while you’re putting on the hot tub deck, or perhaps someone to mix and pour concrete on the motorhome pad next to the garage.  But if you’re paying them, you’re an employer in the eyes of the state.

Fortunately this probably doesn’t mean you’ll have to read up on Obamacare.  But you do have certain responsibilities.  Perhaps the foremost of real concern is workman’s compensation.  Didn’t come to mind?  Paying insurance for just hiring some dude off the internet now and again?  Actually, yes, you are responsible.  If that poor fella trips over the water hose, bangs his thumb with a hammer, or slips and cracks his head while shoveling your driveway, he is a worker by Alaska standards and you are his employer.  It is necessary to report to the state that you have worker’s compensation insurance, and of course pay necessary premiums.

There are other requirements, too, such as keeping records of your employees, tax records, immigration forms, minimum wage laws, etc. etc. etc.  If nothing ever goes wrong one never has to worry, right?  More or less.  Of course our laws aren’t written for when things go right, but for when the unexpected happens.  Let’s say that poor fella really does get hurt.  There he is banging away with the nail gun and the compressor hose bursts.  Safety glasses are for wimps, so naturally splinters and other debris fly straight to his face blinding him for all eternity.  Or at least until the trial is over.  The State will try to hold you responsible for the entirety of his medical care and later disability, and will be knocking on your door grinning from ear to ear.  Actually you’ll get a nasty little letter letting you know that a worker’s comp claim has been filed, the State presumes you are responsible for the costs, and, by the way, there will be fines galore for not having the proper insurance in place and on file.

So what does this all actually mean?  The average Joe Alaska isn’t going to run out and get worker’s compensation insurance.  He’s also not going to be checking the bonafides of his day help.  He may not be keeping records or reporting employment taxes to the IRS.  This is Alaska, free man’s country, where we take care of things up front and don’t need nor want the government standing around looking over our shoulder making sure the paint is the proper color, consistency, and lead-free.  This ain’t Bolder or San Francisco, it’s Willow, or Tok, or Aleknagik.  What it means is that we need to carefully consider what we’re doing, how we’re doing it, and who’s doing it.  We  need to remain aware that we are responsible if something untoward happens.  After an accident you’ll probably think hiring that licensed small business contractor who already has the proper employment credentials and insurance would have been faster and cheaper.  He hires the fella from Beans or off Craigslist and actually insures them.

Will anything change after reading this little blerb?  Likely not, but us attorneys are around when the unthinkable or the unknowable happens.  So if your brother is snoring away on a tropical isle and your high school buddy is raking in big coin in the oil patch and you still need help slinging mud, keep in mind you are an employer, and subject to the crushing wheels of justice.

Fun at work

“Unless you have fun, you can’t truly bring your intellect, your skills, and your deep knowledge to push the boundaries of the unknown, to invent and create.” Vandebroek

Alaska Eminent Domain

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

 

  1. The valuation date for the taking is the day the government enters the property and begins construction.  Alaska Stat. 09.55.280. Wickwire v. City & Borough of Juneau, 557 P.2d 783 (Alaska 1976).
  2. The taking “. . . shall be located in the manner that will be most compatible with the greatest public good and the least private injury. . .”  Alaska Stat. 09.55.280.
  3. If the property boundaries change at all, the agency must apply for and obtain a preliminary replat approval before the acquisition and then shall also obtain a final plat.  Alaska Stat. 09.55.275.

Hearings

  1. If you object to the taking, the extent of the taking, the value of the consideration paid, the manner or nature of crossings you have a right to a hearing before the court.  Alaska Stat. 09.55.300.
  2. You have a right to a jury trial as to damages and the value of property.  Alaska Stat. 09.55.320.
  3. If you do not reach an agreement on value and damages then in a court action value is established on the day the suit is filed.  Alaska Stat. 09.55.330.
  4. If those attempting to condemn the property file an action, they may also seek an order to allow them to take possession before the value is determined.  Alaska Stat. 09.55.380.  When they do this then they must also pay interest from the date of suit until the final value determination.  Alaska Stat. 09.55.330.
  5. If there is a hearing and judgment rendered, the entity taking the property must pay within 30 days of judgment.  Alaska Stat. 09.55.350.
  6. If they fail to pay then you are entitled to vacate the condemnation award.  Alaska Stat. 09.55.360.

Damages

  1. When the state takes a parcel you are entitled to the value of the parcel and all the appurtenances on the parcel.  Alaska Stat. 09.55.310(a)(1)
  2. When the state takes only a portion of a larger parcel you are entitled to the damages related to the remaining parcel that they failed to take.  Alaska Stat. 09.55.310(a)(2).
  3. When the benefit of the state’s investment to a parcel not taken, exceeds the damages to the remaining parcel, you only get the value of the parcel taken.  Alaska Stat. 09.55.310(a)(3).
  4. As far as practicable, compensation shall be assessed for each source of damages separately.  Alaska Stat. 09.55.310(b).
  5. Alaska has very little settled case law on the sources and methods of establishing other damages.  The list from other jusidictions can be very long.  Some of the more common Damages Sources include:
    1. Just compensation for real estate that is taken;
    2. Severance damages to property impacted, but not directly taken;
    3. Tenant lease value damages;
    4. Property and business fixture damages;
    5. Loss of going concern damages when a business is destroyed by a taking;
    6. Residential and homeowner relocation damages;
    7. Business relocation damages;
    8. Highway and right-of-way accesses damages;
    9. Construction related damages;
    10. Minimum compensation damages to make business owners whole;
    11. Diminution of value damages in land use cases;
    12. Attorney’s fees payments to landowners; and,
    13. Loss of land development potential 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

  1. Valuation is based on “fair market value” or the price a willing buyer would pay a willing seller for the property.  State v. Alaska Continental Dev. Corp. 630 P.2d 977 (Alaska 1980).
  2. Value is established by what the owner has lost and not what the condemner gains.  Gacksetter v. State, 618 P.2d 564 (Alaska 1980) (owner of residential property lost residence and value was set based on that loss not on the value of the gravel pit developed after condemnation).
  3. Owner’s loss in value does not include the value of the project giving rise to the project.  But, if the taking is unrelated to another project that adds value to the owner, the owner does capture the other projects value.  See, e.g., State v. Alaska Continental Dev. Corp. 630 P.2d 977 (Alaska 1980).
  4. Owner’s improvements made in anticipation of condemnation is ordinarily not relevant or admissible even with knowledge of the prospects of taking; unless, the improvements are made solely to enhance their award.  Babinec v. State, 51 P.2d 563 (Alaska 1973) rev’d on other grounds, 586 P.2d 966 (Alaska 1978).
  5. Valuing a larger parcel generally results in a lower value.
  6. Severence Damages

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.