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By: Elizabeth Kruska
Before I went to law school I worked for a land conservancy and thought I’d really like doing work with property. Then I went to law school and took property and said, “maybe I’m actually very good at literally anything else.” I’m summarizing two property cases and I'm out of my element.
Mongeon Bay Properties, LLC v. Town of Colchester, 2026 VT 1
Our first opinion this week involves condemnation (or not) of property. The facts are fairly simple. Mongeon Bay Properties, LLC (MBC) owns some land in Colchester on and near Lake Champlain. There’s an easement going back nearly 50 years for a town-owned stormwater runoff pipe. The pipe generally hasn’t had any problems, but did have some repairs done to it in 2020. I don’t know how long pipes last, but 40ish years with few problems seems both pretty good and also like an appropriate time to do some repairs.
In 2021, though, the Town of Colchester decided it wanted to condemn that property, take it from MBC, and construct a storm water treatment facility upon it. In order to do that, the Town had to prove it was a necessity to take the property. MBC disagreed and sought a hearing.
The long and short is that the Town couldn’t prove taking this particular property was a necessity. The Town appealed, and SCOV affirmed the lower court.
Briefly, because the Town is the one who wanted to take the property, it’s the Town’s burden to show that taking this particular property was necessary. This is very factually-based, and when SCOV reviews decisions that are heavy on facts, they give a lot of discretion to the trial court. Here, the evidence showed that the Town didn’t sufficiently look for other sites for the project. It became clear the Town designed the project to fit the space rather than designing a project that could fit in various places. The Town also sort of vaguely said, “yeah this’ll be helpful for runoff problems” without actually analyzing the impact of the project on the grand list. The Town also offered testimony about the pipe that was fixed the year before, saying it was problematic due to its shape. The actual evidence, though, was that there hadn’t been a problem with that pipe for years. Last, the Town’s expert said the project as proposed would process a certain amount of runoff each year. Meanwhile, MBC’s expert said a similar project elsewhere could process four times as much runoff.
SCOV doesn’t disrupt any of the findings here and upholds the trial court. The Town made several other arguments, which SCOV sort of batted away because it was able to make the decision on the lack of proof of necessity.
++++
Kirshon, et al. v. Abodeely-Mills, et al., 2026 VT 2
There are some things you should not do. You should not stick a fork in a toaster. You should not go in against Sicilian when death is on the line. You should not write unclear granting clauses in deeds. The first will give you a shock. The second will cause you to die of iocaine poisoning while you’re just trying to kidnap a princess. The last will land you in litigation against your cousins over a 60+ year old deed.
Here are the facts. In 1958, Thelma conveyed her ownership of a lakeside camp to Hazel and her three sons Leslie, Albert, and Ernest. The granting clause of the deed didn’t specifically say it was a joint tenancy with right of survivorship, although there was another clause further down in the deed that referred to a joint tenancy. In 1977, Hazel conveyed her share to her three sons. Again, it’s perhaps unclear whether this is a joint tenancy or a tenancy in common.
What difference does that make, you might ask? A huge difference. Because if you’ve got a joint tenancy with right of survivorship, when one owner dies, their share of the property becomes owned by the other owners. If it’s a tenancy in common, each owner owns their pro rata share and can do with it whatever they want. And if they die, the share doesn’t automatically go to the other owners; it can be passed in an estate.
So. In 1997 Leslie died and then in 1998 Albert died. This left Ernest as the sole brother. If the 1958 deed was a joint tenancy with right of survivorship, that would make Ernest the sole owner of the property. But if the 1958 deed created a tenancy in common, as the other brothers passed, their shares would pass to their heirs or however the brothers structured their estates. I’m leaving out the issue of Hazel’s transfer of her 1/4 share, because that causes some complicated 1/12 shares, and this is a law blog not a math blog, and I didn’t sign up to do fractions today.
When Ernest died he left his interest in the property to his three daughters. This apparently caused some complication among Albert’s heirs, because Ernest’s kids sought a declaratory judgment naming them sole owners of the property. (Leslie’s daughter did not get involved in this.) Their argument was that part of the 1958 deed referred to a joint tenancy, which would have made Ernest the sole owner of the property when he died since he was the last survivor. The defendants argued this was actually a tenancy in common, and that they were entitled to a share or shares of the property.
The trial court ruled in favor of Ernest’s kids, saying the 1958 deed created a joint tenancy and Albert’s kids appealed. SCOV reverses the trial court.
SCOV reviews deeds de novo because they are operations of law, and our supreme court is our expert body on our state law. Vermont state law is and has been clear that unless the deed clearly and unambiguously says “joint tenancy with right of survivorship” in the granting clause, then it’s a tenancy in common. Other states also take this position.
The 1958 deed’s granting clause didn’t contain the magic words. There was a subsequent clause that also didn’t contain the magic words but did say, “his heirs and assigns” which just sort of muddied the waters. Here, the 1958 deed just wasn’t clear enough to show that it was meant to be a joint tenancy.
So, SCOV reversed and sent back to the trial court for an entry of judgment consistent with that ruling.
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