General

Homeowners Waive Defective Service in Property Foreclosure

The Trelfas purchased a residence by giving State Street Bank a first mortgage. They later took out a loan from Simmons First Bank and gave Simmons a second mortgage. The Trelfas defaulted, and Simmons commenced foreclosure proceedings.

Simmons filed the complaint in December 2002 but did not serve the Trelfas. In January 2003, Simmons filed an amended complaint. This time the bank served the Trelfas, but it used the summonses from the original complaint rather than issuing new summonses. The Trelfas never answered or filed a pleading, but they agreed to an order appointing a receiver, which was entered in February 2003. The property was sold at a foreclosure sale and the trial court entered judgment for Simmons, although the Trelfas claimed they never waived the defective service.

The Court of Appeals affirmed, holding that the Trelfas waived the defective service by not objecting in their first responsive pleading. The court also agreed that entry of the order appointing receiver within 120 days of the amended complaint satisfied Ark. R. Civ. P. 4(i).

General

Restrictive Covenants Enforceable in Property Dispute Between Neighbors

On December 16, 1940, a restrictive covenant was recorded for the subdivision Denison Heights, where the parties live. That covenant provided that no structure shall be erected on a lot other than a detached single family dwelling. Although the restrictive covenant was recorded, it was not contained in the Cochrans’ deed when they purchased the property. In 2003, the Cochrans built a 30-foot tall “shop building.”

The court held that the restrictive covenant was not ambiguous and there had not been a change in conditions sufficient to warrant invalidation. Most of all, the court rejected the Cochrans’ defenses of waiver and estoppel because the Cochrans testified they still would have built the shop even if they had known about the restrictive covenant.

General

Neighbors Take Property by Adverse Possession

The Boyds purchased their property in 1981; it had a fence that separated property to the east, which the Roberts purchased in 1990. In 2002 the Boyds surveyed their property and found their boundary extended up to 96 feet inside the Roberts side of the fence. The Boyds sold the property to Winningham in 2004, who began tearing down the fence until he was enjoined by the trial court. After the Roberts v. Boyd decision, the trial court held the Roberts had adversely possessed the disputed property.

The Court of Appeals based its decision on the fact that the Roberts tended to the disputed tract of land. They spread fertilizer and planted grass as an exhibit of ownership. The court agreed that the Roberts satisfied all elements of adverse possession and affirmed the trial court’s ruling.

General

Sale of Property Fails for Lack of Consideration

The Yourees entered into a contract to sell property to the Eshaghoffs for a total of $1.05 million. The contract provided the Yourees had one year to surrender the property. If they did not, they would lease the property for $12,000 per month until surrender. The parties executed addenda that reduced the surrender time to 6 months and required the Eshaghoffs to lease the property for $18,000 per month for no more than 3 months if they failed to meet the surrender deadline.

The trial court found the addenda were enforceable and directed sale of the property. The court of appeals reversed, finding that the addenda were unenforceable because they provided no additional consideration . These addenda did not require the Yourees to do anything more than what they were already required to do.