Montana’s Largest Land Grab?

Luxan and Murfitt, Attorneys for Saint Marie Condominium Association are in the process of claiming 223 acres from owners of Units in North Valley County Condominium Association, claiming that what Unit Owners in North Valley have “were the interior spaces of buildings whose exterior is owned by unit owners of the St. Marie Condominium, on land and surrounded by land that is owned by unit owners of St. Marie Condominium.”  If they were to prevail, it would be a crippling rip-off and waste of conservatively seven and one half million dollars value.  Air space without common elements is not a marketable nor taxable real estate.  (70-13-101).

The 14^th Amendment to the St. Marie Condominium Declaration brought the total number of Units to one thousand.  Each of the Units owned an undivided interest in the 298 acres being a little more than a quarter of an acre for the average share of undivided ownership.

The Declarant had more bills than cash and went into bankruptcy. The Federal Judge turned all the remaining assets to “Valley Park Liquidating Trust” whose plan required withdrawing 750 units, which they owned, from the Parent St. Marie Condominium, which they did.  They had the original Declarant’s right to do as they wished with the 750 Units within the Covenants and the Montana Unit Ownership Act.  They had power of attorney for all 1000 units so could make new declarations on their own or as approved and suggested (ordered) by the Federal Judge.

One universal rule of unit-common ownership and also Montana law is that the common elements are permanently attached and appurtenant (70-15-105) to the units unless a series of steps are put in place which requires 100% (75% by St. Marie Declaration) approval of the Unit Owners.  One can not accidentally leave common elements behind when describing units by the established Unit numbers. Common elements are appurtenant and come with or “shifted” with the unit even if not specifically called for in the deed. (70-23-404). The Seventeenth Amendment saw the Liquidating Trust withdrawing 750 units by using the St. Marie Condominium Unit numbers as a legal description.

Luxan and Murfitt apparently have not prepared any condo declarations as they got hung up on the fact that all 17 versions of the St. Marie Condominium percentages of unit ownership always totaled up to 100% as proof of their client’s ownership. Little wonder when you start with 100% and divide by the number of units, or as in this case by the floor space of individual units to arrive at unit percentage which when totaled always add up to 100%. This is how all percentage of ownership is computed for common ownership.  I might add that most fifth graders could solve this word problem.

Luxan and Murfitt interpreted this to mean that St. Marie Condominium Unit owners owned 100% of the common elements not only appurtenant to their 250 units but also the 750 withdrawn units with the same genesis. Can advocacy based on a false premise be allowed to stand? – I hope not. Most of their July 24 memo consists of a partial quoting of Montana Condominium law, as suited their client, and advancing their theory of ownership of the common elements based on their false premise.

One should ask “percentage of what”? The true answer is the remainder after three fourths of the appurtenant common elements shifted with the 750 Units.  The remainder is approximately 74.5 acres.  This amounts to the same undivided one quarter acre, plus, for each of the remaining 250 lots.  This is the same share of the total area each Saint Marie Unit Owner started with before the shifting of the 750 units.  Seems fair enough and I suspect, if St. Marie Unit Owners fully understood, would agree.

Luxan and Murfitt can not explain how the shifting of the Units without their share of common elements could have been accomplished in the light of (70-23-404) nor with the Federal Judge whose main task was to preserve and optimize the value of the assets to be fairly divided among creditors. Neither the Judge nor the Trust would have let seven and one half million dollars of assets slip out the door.  I can not imagine what Saint Marie intends to do with the misappropriated common elements unless they intend to extort payment from the owners for reuniting it with their air space.  I can’t think for a minute that the good owners of Units in Saint Marie Condominium would want this.

Luxan and Murfitt lawyers are too clever not to already know all of this and one must conclude that they have deliberately misconstrued the truth. The direct result of this over zealous advocacy for their client is the “wasting” of the North Valley Unit Owners property values.  Such wasting in Montana is punishable by “Triple Damages.” (70-16-106)

One may hope that this absurdity won’t get far in the court system. The real solution is jointly defining the “hop scotch” like boundary between St. Marie and North Valley Condominiums.  This boundary exists in the record and can be located on the ground.  One need only look at the St. Marie grass cutting pattern to know approximately what it would look like.  Robert Frost observed that “Good fences (or boundaries) make good neighbors”.  Both parties need to agree on where and how this boundary will be marked: If not we will continue as in the past with extended legal action ad infinite.

This is my professional opinion, however I do own two units in North Valley and two in Saint Marie.

Robert J. Shelton PE, LS

P.S.

One member of the press has asked who put me in charge. I am not in charge and I am my only client in this matter. However, I am concerned with bad property descriptions and poor title that makes me stay awake at night.  My expertise has come after 52 years practice as a professional engineer and land surveyor.  What is a land surveyor?  This is best illustrated by the first paragraph of my departed Mentor, Ira “Tiny Tilotson.”  His book’s “Legal Principles of Boundary Location on the Ground in the Public Land Survey States”, first paragraph reads as follows:

“The surveyor is supposed to make his survey in such a manner that a court will uphold his judgment and actions. This means he must place the Boundary Line between abutting owners in exactly the same place whether he is paid by owner “A” or owner “B”. In this sense a surveyor is actually a court.  A court which doesn’t know the law in its own field is an utter futility.”

Thus through the years I have learned a lot of property law and need not apologize for this knowledge.

A surveyor is not an advocate and is considered to be a professional in that we bring owners together in agreement instead of suing each other as the advocating lawyer is wont to do.

Reference Luxan & Murfitt July 24, 2014, memo to et alia, Re. Ownership interest of Members of St. Marie Condominium Association.

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70-15-101. Real property defined. Real or immovable property consists of:       (1) land;       (2) that which is affixed to land;       (3) that which is incidental or appurtenant to land;       (4) that which is immovable by law.

History: En. Sec. 1074, Civ. C. 1895; re-en. Sec. 4425, Rev. C. 1907; re-en. Sec. 6667, R.C.M. 1921; Cal. Civ. C. Sec. 658; Based on Field Civ. C. Sec. 163; re-en. Sec. 6667, R.C.M. 1935; R.C.M. 1947, 67-207.

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70-15-105. Incident or appurtenance defined. A thing is deemed to be incidental or appurtenant to land when it is by right used with the land for its benefit, as in the case of a way or watercourse or of a passage for light, air, or heat from or across the land of another.

History: En. Sec. 1078, Civ. C. 1895; re-en. Sec. 4429, Rev. C. 1907; re-en. Sec. 6671, R.C.M. 1921; Cal. Civ. C. Sec. 662; Field Civ. C. Sec. 166; re-en. Sec. 6671, R.C.M. 1935; R.C.M. 1947, 67-211.

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70-23-404 : Common elements — undivided interest to remain attached to unit

The undivided interest in the common elements shall not be separated from the unit to which it appertains and shall be conveyed or encumbered with the unit even though such interest is not expressly mentioned or described in the conveyance or other instrument.

History: En. Sec. 7, Ch. 120, L. 1965; R.C.M. 1947,

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70-16-106. Action for waste — treble damages. If a guardian, tenant for life or years, joint tenant, or tenant in common of real property commits waste of the property, any person aggrieved by the waste may bring an action against that person. The judgment in the action may be for treble damages.

History: En. Sec. 229, p. 91, Bannack Stat.; re-en. Sec. 250, p. 187, L. 1867; re-en. Sec. 299, p. 93, Cod. Stat. 1871; re-en. Sec. 350, p. 137, L. 1877; re-en. Sec. 350, 1st Div. Rev. Stat. 1879; re-en. Sec. 362, 1st Div. Comp. Stat. 1887; re-en. Sec. 1301, C. Civ. Proc. 1895; re-en. Sec. 6866, Rev. C. 1907; re-en. Sec. 9475, R.C.M. 1921; Cal. C. Civ. Proc. Sec. 732; re-en. Sec. 9475, R.C.M. 1935; R.C.M. 1947, 93-6102; amd. Sec. 2119, Ch. 56, L. 2009.

 

 

 

 

Court Shrugs Off Case

              The Protective Covenants of the Village of St. Marie place no restrictions on the right to vote of owners of units and commercial property in St. Marie.  Each unit owner is entitled to one vote per unit, and there are no qualifications that have to be met in order to vote or to run for office. 

             Two directors in the Village Association, in 2009, passed an amendment to the bylaws that says just the opposite – you can’t vote or run for office unless you are current in all your fees on every unit you own.  The way this bylaw was passed, without a vote of the members, violates the Montana nonprofit corporation act.  In last year’s election, the ladies that were in office were so zealous to maintain control that they didn’t even follow their own bylaws.  New St. Marie, LLC, was all paid up on their village fees and had 365 proxy votes cast that were not even counted, and Nilla Hansen won the election with only 75 votes.            

            Some of you may have read in The Buzz that Terry-Lee’s Motion for a Restraining Order to prevent this year’s village election was denied.   The reason the judge gave for denying the motion was that the “case is closed” and “the court is without jurisdiction to act.”  That sounds like an easy way to brush it all aside and not have to think about it any more.  But was the case really closed?

            Why would the judge say it was closed if it was not?  You would think that the judge would know what’s going on in his own court!  Right?  Or is that asking too much?

            True, the judge did dismiss Terry-Lee’s original complaint on June 4th.  But the original complaint was amended on April 24^th and the judge did not dismiss his amended complaint, which is still before the court.  Thus, the court still has jurisdiction to hear the motion for temporary restraining order.  A rule 60(b) motion has been filed to notify the court of the error and to reinstate the motion.

 

Notice to Displaced Board

To:  Nilla Hansen, Sandra K. Nigh, and Linda S. Tihlarik

This is your notice that you are acting without authority.  Any ultra vires acts you commit, including attempting to hold an election on the 20^th day of August, A.D. 2014, and denying a majority of unit owners the right to vote or to hold office, will be committing tortious acts against the 60% of the unit owners that voted you out of office on the 23^rd day of August, A.D. 2013.  Once Article X has been ruled upon, you will be held accountable for every lawless act.

UNIFORM COMMON INTEREST OWNERS BILL OF RIGHTS ACT drafted by the NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS and by it APPROVED AND RECOMMENDED FOR ENACTMENT IN ALL THE STATES at its ANNUAL CONFERENCE MEETING IN ITS ONE-HUNDRED-AND-SEVENTEENTH YEAR BIG SKY, MONTANA July 18 – July 25, 2008

The Protective Covenants of the Village of St. Marie have always protected the unit owner’s right to vote.  Likewise, the  Uniform Common Interest Owners Bill of Rights Act, drafted in Big Sky, Montana, protects  the unit owner’s right to vote. You can read the entire Bill of Rights by clicking here, but the parts quoted below are the most relevant to St. Marie:

COPYRIGHT  2008 by NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS 

SECTION 8. POWERS AND DUTIES OF UNIT OWNERS ASSOCIATION.

(a) Regardless of the powers and duties of the association described in the declaration and bylaws, the association:

 (6) may suspend any right or privilege of a unit owner that fails to pay an assessment, but may not:

(A) deny a unit owner or other occupant access to the owner’s unit;

(B) suspend a unit owner’s right to vote;

(C) prevent a unit owner from seeking election as a director or officer of the association; or

(D) withhold services provided to a unit or a unit owner by the association if the effect of withholding the service would be to endanger the health, safety, or property of any person; and

SECTION 9. EXECUTIVE BOARD MEMBERS AND OFFICERS. 

 (c) The executive board may not:

 (2) amend the bylaws;

 (5) determine the qualifications, powers, duties, or terms of office of executive board members.

SECTION 19. REMOVAL OF OFFICERS AND DIRECTORS. 

(a) Notwithstanding any provision of the declaration or bylaws to the contrary, unit owners present in person, by proxy, or by absentee ballot at any meeting of the unit owners at which a quorum is present, may remove any member of the executive board and any officer elected by the unit owners, with or without cause, if the number of votes cast in favor of removal exceeds the number of votes cast in opposition to removal.

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