06/16/2011

By Kara Herlihy

The town of Warren will not gain access to a footpath that crosses Sue Carter’s property in Warren Village following Vermont Superior Court Judge Geoffrey Crawford’s dismissal of the case that began almost three years ago.

In a decision dated June 13, Judge Crawford dismissed the case that requested that the town gain unobstructed access to the path that connects the village to the Brooks Field. In 2009, Carter posted a section of the path used over the years by schoolchildren and residents.

Carter engaged Attorney Lauren Kolitch after the town’s attorney Paul Gillies issued an opinion that the path is considered a public right of way. Gillies maintained that there was deed language that allows access to the land where the Warren School is and referred to that access as a road or highway.
Attorney Alan Uris took over the case from Kolitch and represented Carter in the ongoing litigation at the Vermont Superior Court.

Uris said the town’s attorney wrongly sued Carter because she is only one of five siblings who hold legal title to the property following the death of Carter’s mother Veda Carter who died in 1983.
Following her mother’s death, no estate was opened; Carter lives in the home with the acquiescence of her siblings and pays the taxes and other expenses.

According to Judge Crawford’s written decision, the court met with the parties on April 15 for oral argument concerning the town’s motion for summary judgment.

The decision reads, “The hearing ended with the plan that the town of Warren would open an estate on behalf of Ms. Carter. This is obviously an awkward task for the town and it has not happened yet.”

The first of two conclusions made by the court is that all of the parties were mistaken in the shared belief that the problem was the lack of an entity to sue as defendant, given the shared ownership of the property.

The second conclusion, as it is outlined in the decision, “is more serious and goes to the issue of subject matter jurisdiction. The probate court has jurisdiction over real property disputes when (1) record title remains in the name of a person who died more than seven years ago; (2) the decedent’s estate has not been probated; and (3) the heirs’ interests in the property have not been conveyed (14 V.S.A. 1801;V.R.P.P. 80).”

The reality, according to Uris, is that kids traveled the section of the path for many years without the consent of Carter; Carter’s mother also objected and often complained about the use of the private property when she was alive.

“Under merits, the town could not take adverse possession of the path, and they couldn’t get it by deed,” Uris said.

After the town mistakenly sued Carter individually, the court ordered that the town apply to the probate court and open an estate making Carter the administrator so the town could so choose to sue the estate.

The town never formed the estate and after a period of 60 days, the judge found that instead of opening an estate, the whole case should be heard in probate court, referencing Vermont state statute VSA 1801.

The decision goes on, “There are very few reported cases under 1801 and related statutes in Vermont. The few that exist suggest that this case likely should have been filed in probate court under 14 VSA 1801. The specific title questions in the cases differ somewhat. What unites them is that the decedent’s estate was never probated, record title remains in the name of the decedent, and a dispute has arisen, whether among the heirs or between third parties and their heirs. The probate court has authority to sort out the ownership question and then appoint an administrator to convey record title to whoever should have it.”

Uris said that the town never had any legal right to the path. “She was always opposed to it but she couldn’t stand out there with a broom all day long. For a private individual person, if people kept using it for 15 years, they would have the right to use it. The affidavit made it clear that her mother never agreed to it, which was favorable in her case,” he said.

“I argued that if the law was that just by using a right of way, then every lover’s lane in Vermont would be owned by the town,” Uris said. The town can’t be responsible for a road unless they adopt it, he added.

The decision concludes, “For these reasons, the court proposes to dismiss this action without prejudice to the rights of either side to commence an action in probate court. Such an action will effectively substitute for the opening of an estate and will determine record title to the property. It will also provide a forum for the resolution of the issues of prescription and deed easement raised by the town.”

Uris said the judge’s decision essentially brings the case “back to square one. They have to start the whole thing again in probate court” should the town decide to continue to try to gain any legal right to Carter’s property.

The court will allow 15 days for either side to file a response or objection, which the court will consider before acting.

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