Standard of Review for Adverse Possession
"The essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open, visible, notorious, and exclusive possession of the claimant without license or consent of the owner. . . . Adverse possession must be proven by the claimant . . . by clear and convincing evidence." (Citations omitted; internal quotation marks omitted.) Gemmell v. Lee, 59 Conn. App. 572, 578 (2000) citing Kramer v. Petisi, 53 Conn. App. 62, 67; cert. denied, 249 Conn. 919 (1999).
A use made under a claim of right is a use made "without recognition of the rights of the owner of the servient tenement. The use must occur without license or permission and must be unaccompanied by recognition of [the right of the owner of the servient tenement] to stop such use. . . . The claim of right requirement serves to ensure that permissive uses will not ripen into easements by prescription by requiring that the disputed use be adverse to the rights of the owner of the servient tenement." (Citation omitted; internal quotation marks omitted.) Faught v. Edgewood Corners, Inc., 63 Conn. App. 164, 170 (2001) citing Crandall v. Gould, 244 Conn. 583, 590-91 (1998).
"The Defendant must also prove that his use of the land was exclusive. This means that the possession by the Defendant was not shared with the Plaintiff's predecessors in title or anyone else for that matter. The requisite of exclusive possession for the statutory period is not met if the adverse user merely shares dominion over the property with other users.” Highland Associates v. Fohl, 62 Conn. App. 612, 619-620 (2001).
The requirement that an adverse possession be "notorious" in the sense of "being or constituting something that is commonly known: well known" (Webster, Third New International Dictionary) is obviously to give actual notice to an owner that a claim contrary to his ownership is being asserted or to lay a foundation for a finding of constructive notice. Pepe v. Aceto,119 Conn 282, 287 (1934); Schroeder v. Taylor, 104 Conn. 596, 605 (1926).
"Occupation must not only be hostile in its inception, but it must continue hostile, and at all times during the required period of fifteen years challenge the right of the true owner, in order to found title by adverse use upon it" (Citation omitted; internal quotation marks omitted.) Lazoff v. Padgett, supra, 2 Conn. App. 246, 250 (1984).
Showing posts with label civil litigation. Show all posts
Showing posts with label civil litigation. Show all posts
Friday, February 6, 2009
Custody Considerations when seeking to Relocate
Relocation out of Connecticut - Custody Issues
The rule for relocation in Connecticut up until the passage of C.G.S. §46b-56d was set forth in Ireland v. Ireland, 246 Conn. 413 (1998). The Court’s approach, in Ireland involved a multiple step test that shifted burdens from the relocating parent to non-relocating parent. The Court borrowed from the American Law Institute in its Principles of the Law of Family Dissolution: Analysis and Recommendations saying that “[a] parent who has been exercising a significant majority of the custodial responsibility for the child should be allowed to relocate with the child so long as the parent shows that the relocation is in good faith for a legitimate purpose and to a location that is reasonable in light of the purpose.” Ireland v. Ireland at 424. The Court further said that “a relocation motivated by a legitimate purpose should be considered reasonable, unless its purpose is shown to be substantially achievable without moving, or by moving to a location that is substantially less disruptive of the other parent’s relationship to the child.” Id. (Internal quotation marks omitted). This rule said the Court, “places the initial burden of proof on the custodial parent, which is the party with the best access to information relevant to the legitimacy of the motives behind the planned location.
Once the legitimacy and reasonableness of the move have been established by the relocating parent the burden shifted to the non-relocating parent to show that the move was not in the best interest of the child. See Ireland v. Ireland. In the end a scheme of shifting burdens was established; each party having to carry their part by a preponderance of the evidence.
C.G.S. §46b-56d Relocation of parent with minor child. Burden of proof. Factors considered by the court, was adopted by the Connecticut State Legislature to overturn the burden shifting scheme described above. The statute is printed in its entirety below:
(a) In any proceeding before the Superior Court arising after the entry of a judgment awarding custody of a minor child and involving the relocation of either parent with the child, where such relocation would have a significant impact on an existing parenting plan, the relocating parent shall bear the burden of proving, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, (2) the proposed location is reasonable in light of such purpose, and (3) the relocation is in the best interests of the child.
(b) In determining whether to approve the relocation of the child under subsection (a) of this section, the court shall consider, but such consideration shall not be limited to: (1) Each parent's reasons for seeking or opposing the relocation; (2) the quality of the relationships between the child and each parent; (3) the impact of the relocation on the quantity and the quality of the child's future contact with the nonrelocating parent; (4) the degree to which the relocating parent's and the child's life may be enhanced economically, emotionally and educationally by the relocation; and (5) the feasibility of preserving the relationship between the nonrelocating parent and the child through suitable visitation arrangements.
Of immediate consequence is the third element described in “(a)”; viz., the relocating parent must prove by a preponderance of the evidence that the relocation is in the best interest of the child. By allocating this burden to the non-relocating parent the Ireland burden shifting scheme is completely done away with.
The end result is that the current state of the law in Connecticut places the entire burden on the relocating parent, to show that (1) the relocation is for a legitimate purpose, (2) the proposed location is reasonable in light of such purpose, and (3) the relocation is in the best interests of the child. C.G.S. §46b-56d
The rule for relocation in Connecticut up until the passage of C.G.S. §46b-56d was set forth in Ireland v. Ireland, 246 Conn. 413 (1998). The Court’s approach, in Ireland involved a multiple step test that shifted burdens from the relocating parent to non-relocating parent. The Court borrowed from the American Law Institute in its Principles of the Law of Family Dissolution: Analysis and Recommendations saying that “[a] parent who has been exercising a significant majority of the custodial responsibility for the child should be allowed to relocate with the child so long as the parent shows that the relocation is in good faith for a legitimate purpose and to a location that is reasonable in light of the purpose.” Ireland v. Ireland at 424. The Court further said that “a relocation motivated by a legitimate purpose should be considered reasonable, unless its purpose is shown to be substantially achievable without moving, or by moving to a location that is substantially less disruptive of the other parent’s relationship to the child.” Id. (Internal quotation marks omitted). This rule said the Court, “places the initial burden of proof on the custodial parent, which is the party with the best access to information relevant to the legitimacy of the motives behind the planned location.
Once the legitimacy and reasonableness of the move have been established by the relocating parent the burden shifted to the non-relocating parent to show that the move was not in the best interest of the child. See Ireland v. Ireland. In the end a scheme of shifting burdens was established; each party having to carry their part by a preponderance of the evidence.
C.G.S. §46b-56d Relocation of parent with minor child. Burden of proof. Factors considered by the court, was adopted by the Connecticut State Legislature to overturn the burden shifting scheme described above. The statute is printed in its entirety below:
(a) In any proceeding before the Superior Court arising after the entry of a judgment awarding custody of a minor child and involving the relocation of either parent with the child, where such relocation would have a significant impact on an existing parenting plan, the relocating parent shall bear the burden of proving, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, (2) the proposed location is reasonable in light of such purpose, and (3) the relocation is in the best interests of the child.
(b) In determining whether to approve the relocation of the child under subsection (a) of this section, the court shall consider, but such consideration shall not be limited to: (1) Each parent's reasons for seeking or opposing the relocation; (2) the quality of the relationships between the child and each parent; (3) the impact of the relocation on the quantity and the quality of the child's future contact with the nonrelocating parent; (4) the degree to which the relocating parent's and the child's life may be enhanced economically, emotionally and educationally by the relocation; and (5) the feasibility of preserving the relationship between the nonrelocating parent and the child through suitable visitation arrangements.
Of immediate consequence is the third element described in “(a)”; viz., the relocating parent must prove by a preponderance of the evidence that the relocation is in the best interest of the child. By allocating this burden to the non-relocating parent the Ireland burden shifting scheme is completely done away with.
The end result is that the current state of the law in Connecticut places the entire burden on the relocating parent, to show that (1) the relocation is for a legitimate purpose, (2) the proposed location is reasonable in light of such purpose, and (3) the relocation is in the best interests of the child. C.G.S. §46b-56d
Connecticut Unfair Trade Practices Act
Connecticut Unfair Trade Practices Act § 42-110b (CUTPA)
General Statutes § 42-110b (a) provides that "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce."
"[I]n determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise - whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness, (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen] . . . . All three criteria do not need to be satisfied to support a finding of unfairness." (Internal quotation marks omitted.) Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 785-86, 720 A.2d 242 (1998).
General Statutes § 42-110b (a) provides that "[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce."
"[I]n determining whether a practice violates CUTPA we have adopted the criteria set out in the cigarette rule by the federal trade commission for determining when a practice is unfair: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise - whether, in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness, (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers [competitors or other businessmen] . . . . All three criteria do not need to be satisfied to support a finding of unfairness." (Internal quotation marks omitted.) Thames River Recycling, Inc. v. Gallo, 50 Conn. App. 767, 785-86, 720 A.2d 242 (1998).
Wednesday, April 2, 2008
Talking and driving? Go hands-free or pay up – maybe?
Talking On a Cell Phone in a Car without also using a Hands-free device
Connecticut’s cell phone prohibition law, making it a ticketable moving violation to drive a car while talking on a cell phone without also using a hands-free accessory. Connecticut General Statute Section 14-296aa. entitled: “Use of hand-held mobile telephones and mobile electronic devices by motor vehicle operators and school bus drivers, prohibited or restricted, when. Penalties,” governs the use of telephones in automobiles.
Driving down the road every day, whether heading to court, home or on an errand I can’t help but see all of the people on the road using their cell phones in clear violation of this statute. The funny part about it is that some of these drivers enjoy the speakerphone option of their new high tech phone, of course while holding it in their hand. I have not heard about a major crackdown or let alone enforcement of this law but that does not mean it cant or wont occur if you are pulled over for some other motor vehicle violation or other cause. Specifically, the law states: “(2) "Using" or "use" means holding a hand-held mobile telephone to, or in the immediate proximity of, the user's ear.”
On most days it’s hard not to notice a police officer, bus driver or other emergency type vehicle driving past you while attached to their cell phone. Are we going to enforce this or just let it go by the wayside? I am not privy to the studies that I am sure having been conducted linking use of a cell phone to increased accident or the like. What is the point of this law if the ones used to enforce it also decide to violate its terms? I have often thought to take my digital camera with me to document these types of acts because I am certain this type of behavior would be denied by the offending officer, bus driver, Emergency technician or just general driver.
On that same note should we ban those individual reading a newspaper or book while driving? Is putting on makeup been banned yet? I have not heard of this specific law yet but is that something else our state should consider as not appropriate to conduct while driving? Have there been studies linking listening to you radio or CD’s in your car to increased number of accidents?
I think it is wise to have this law in effect but a little enforcement would be nice. I know that at depositions or at trial for personal injury cases these are the types of issues raised to discredit the injured parties in an attempt to reallocate blame their way. Watch who you talk to while you drive especially without a handsfree device.
Connecticut’s cell phone prohibition law, making it a ticketable moving violation to drive a car while talking on a cell phone without also using a hands-free accessory. Connecticut General Statute Section 14-296aa. entitled: “Use of hand-held mobile telephones and mobile electronic devices by motor vehicle operators and school bus drivers, prohibited or restricted, when. Penalties,” governs the use of telephones in automobiles.
Driving down the road every day, whether heading to court, home or on an errand I can’t help but see all of the people on the road using their cell phones in clear violation of this statute. The funny part about it is that some of these drivers enjoy the speakerphone option of their new high tech phone, of course while holding it in their hand. I have not heard about a major crackdown or let alone enforcement of this law but that does not mean it cant or wont occur if you are pulled over for some other motor vehicle violation or other cause. Specifically, the law states: “(2) "Using" or "use" means holding a hand-held mobile telephone to, or in the immediate proximity of, the user's ear.”
On most days it’s hard not to notice a police officer, bus driver or other emergency type vehicle driving past you while attached to their cell phone. Are we going to enforce this or just let it go by the wayside? I am not privy to the studies that I am sure having been conducted linking use of a cell phone to increased accident or the like. What is the point of this law if the ones used to enforce it also decide to violate its terms? I have often thought to take my digital camera with me to document these types of acts because I am certain this type of behavior would be denied by the offending officer, bus driver, Emergency technician or just general driver.
On that same note should we ban those individual reading a newspaper or book while driving? Is putting on makeup been banned yet? I have not heard of this specific law yet but is that something else our state should consider as not appropriate to conduct while driving? Have there been studies linking listening to you radio or CD’s in your car to increased number of accidents?
I think it is wise to have this law in effect but a little enforcement would be nice. I know that at depositions or at trial for personal injury cases these are the types of issues raised to discredit the injured parties in an attempt to reallocate blame their way. Watch who you talk to while you drive especially without a handsfree device.
Monday, March 17, 2008
What if you Settle and Judgment Enters
What if a Judgment Has Entered Against You?
The plaintiff, the individual or other type of entity could now proceed upon their judgment. Collection procedures once commenced can in most circumstances include executions against your bank accounts, personal property, or income.
If Judgment has not entered and you have failed to respond and you may have been insured for this type of loss and they are demanding an amount greater than your insurance policy it does not mean that they are entitled to an amount greater, just that they are claiming they are. You should turn this matter over to your insurance company. If they do not respond to the claims made against you, you may have a claim for bad faith against your insurance company. Your insurance company is required, in good faith, to represent you.
The plaintiff, the individual or other type of entity could now proceed upon their judgment. Collection procedures once commenced can in most circumstances include executions against your bank accounts, personal property, or income.
If Judgment has not entered and you have failed to respond and you may have been insured for this type of loss and they are demanding an amount greater than your insurance policy it does not mean that they are entitled to an amount greater, just that they are claiming they are. You should turn this matter over to your insurance company. If they do not respond to the claims made against you, you may have a claim for bad faith against your insurance company. Your insurance company is required, in good faith, to represent you.
Saturday, March 8, 2008
Connecticut Foreclosure
Some Information on Foreclosures by Sale in Connecticut
If you are dealing with an imminent foreclosure or in the midst of one you should immediately consult with an attorney . Your rights to any equity of redemption may be effected in the event you fail to act on your behalf. What is your equity post-foreclosure sale or transfer - its any money you may be entitled to after the foreclosure goes to judgment then its ultimate disposition through the judicial department.
A foreclosure by sale would be conducted by a committee for sale, an attorney within the judicial district appointed by the Court to conduct the sale. It is that committee which is appointed to foster the highest sale price. The auction would be Ordered for a date certain which is customarily as Saturday at noon. Typically, there will be an inspection period for approximately two hours before the sale. The auction will have been advertised by either a sign erected upon the premises and/or an advertisement take out in the local newspaper for the next two preceding Sunday or other days as Ordered by the Court. For the most part both a sign and newspaper ad with be Ordered in my opinion. On the date of the Sale the committee may utilize the services of a police officer and/or locksmith to further the auction. Liability insurance will be obtained for the date of the sale.
The day of the auction:
If you are still in possession of the property expect that on the date of the auction the committee whose name you should know from the judicial notices and/or sign erected upon the property will arrive on or about ten a.m. or thereabouts. It is you choice to permit potential bidders to inspect that portion of the property which is occupied. Remember, it is in your interests to assist the committee in generating the highest bid.
People who desire to bid would register with the committee and be issued a number. To register you must provide you name, contact information and a bank or certified funds in an amount usually equal to ten percent of the property's drive by appraisal as valued on the date of judgment.
At noon the auction opens, customarily with a faxed bid from the foreclosing plaintiff. Then bidding would be conducted with the numbers issued to the approved bidders previously registered with the committee. The highest bidder would be required to execute a bond for deed essentially a contract to purchase. Beware, the successful bidder will be required to purchase the property within thirty days or as further Ordered by the Court from the date the Court approves the Sale. Please be mindful especially under the new guidelines that banks are imposing for mortgages these days the potential inability for the bank or lending institution to conduct a full appraisal may put your deposit at risk. Failure to close within those thirty days may upon Order of the Court forfeit your deposit - substantial for the most part.
I have been acting as a committee for some time now and have yet to see a piece of property go for a dollar.
If you are dealing with an imminent foreclosure or in the midst of one you should immediately consult with an attorney . Your rights to any equity of redemption may be effected in the event you fail to act on your behalf. What is your equity post-foreclosure sale or transfer - its any money you may be entitled to after the foreclosure goes to judgment then its ultimate disposition through the judicial department.
A foreclosure by sale would be conducted by a committee for sale, an attorney within the judicial district appointed by the Court to conduct the sale. It is that committee which is appointed to foster the highest sale price. The auction would be Ordered for a date certain which is customarily as Saturday at noon. Typically, there will be an inspection period for approximately two hours before the sale. The auction will have been advertised by either a sign erected upon the premises and/or an advertisement take out in the local newspaper for the next two preceding Sunday or other days as Ordered by the Court. For the most part both a sign and newspaper ad with be Ordered in my opinion. On the date of the Sale the committee may utilize the services of a police officer and/or locksmith to further the auction. Liability insurance will be obtained for the date of the sale.
The day of the auction:
If you are still in possession of the property expect that on the date of the auction the committee whose name you should know from the judicial notices and/or sign erected upon the property will arrive on or about ten a.m. or thereabouts. It is you choice to permit potential bidders to inspect that portion of the property which is occupied. Remember, it is in your interests to assist the committee in generating the highest bid.
People who desire to bid would register with the committee and be issued a number. To register you must provide you name, contact information and a bank or certified funds in an amount usually equal to ten percent of the property's drive by appraisal as valued on the date of judgment.
At noon the auction opens, customarily with a faxed bid from the foreclosing plaintiff. Then bidding would be conducted with the numbers issued to the approved bidders previously registered with the committee. The highest bidder would be required to execute a bond for deed essentially a contract to purchase. Beware, the successful bidder will be required to purchase the property within thirty days or as further Ordered by the Court from the date the Court approves the Sale. Please be mindful especially under the new guidelines that banks are imposing for mortgages these days the potential inability for the bank or lending institution to conduct a full appraisal may put your deposit at risk. Failure to close within those thirty days may upon Order of the Court forfeit your deposit - substantial for the most part.
I have been acting as a committee for some time now and have yet to see a piece of property go for a dollar.
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