RE: Litigation, Spring 2009








Should You Appeal Your Property Tax Assessment? 

There are some commonly asked questions and answers in deciding if your property has been accurately assessed and what options can be pursued if you feel your property tax is too high.

Notices of Cancellation – Run, Don’t Walk, to the Courthouse
by Tamara O’Neill Moreland

When a purchaser defaults under a purchase agreement or contract for deed by not closing or fulfilling any other duty perceived to be a default by the seller, Minnesota Statutes give the seller the right to unilaterally cancel the contract.  When you receive a Notice of Cancellation, the first step is to ask yourself whether you still want to purchase the underlying property or pursue any legal claims under the contract against the seller. If either answer is yes, then you must act immediately to preserve your rights. Continue

Protecting Your Mechanic’s Lien Rights
by Rob Stefonowicz

In difficult financial times, construction professionals must be mindful of all means by which to secure payment for the toils of their labor and skill, materials and machinery. Property owners likewise must be careful to assure that the payments made for the improvements reach the intended recipients and that their property will not later be subject to liens. The mechanic’s lien laws in the state of Minnesota are designed to protect both construction professionals and property owners. Continue

New Foreclosure Laws in Minnesota
by Jessica Rivas

It seems as if you cannot watch the news or pick up a newspaper without hearing or reading about the foreclosure crisis. According to the Mortgage Bankers Association, one out of every 200 homes will be foreclosed upon and every three months, 250,000 new families enter into foreclosure. There have also been stories detailing how renters are the innocent victims of the foreclosure crisis, because renters are not receiving proper notification from the lending companies and are being forced out upon a 30-day notice, even though they have been fulfilling their obligations and paying rent to their landlords.  While it seems everyone is familiar with the calamity of the foreclosure crisis, everyone might not be familiar with the new foreclosure laws for Minnesota, many of which took effect on August 1, 2008. Continue 

"Green Acres” May Once Again Be the Place to Be
by Gary Van Cleve and Tim Rye

A client of ours passed away recently, leaving as part of her estate 28 acres of agricultural property that qualified for many years under state law for the lower property tax classification of “Green Acres.” The land had been in her family for three generations and upon her death transferred through her trust into her husband’s name. Of the 28 acres, 20 were tillable. This transfer occurred after the Minnesota Legislature’s adoption on May 21, 2008, of the new “Green Acres” law and immediately triggered the withdrawal of the eight non-tillable acres from the “Green Acres” provision. This subjected these eight acres to significantly different property tax exposure. Under previous law, the husband would have been able to keep all 28 acres under the “Green Acres” provision, but under the 2008 amendments, he will face either three or seven years of deferred taxes despite no change to the overall productivity of the 28-acre agricultural property. Continue


Recent Success:

Scott Johnson successfully defended a commercial general contractor against a claim arising out of construction of a new condominium building next to an existing building that was over 100 years old.  The owners of the neighboring building alleged that the design and construction of the new building damaged the existing building and was continuing to damage.  After a seven day jury trial, the jury found that none of the defendants, including our client, were liable.

Rob Stefonowicz successfully represented a custom home builder in securing a temporary injunction allowing the builder to continue construction of a residential project and voiding a stop work order posted by the City of Edina. The City alleged that the builder violated a setback, which Rob successfully challenged.  This time-intensive matter was quickly and efficiently handled and ultimately lead to a favorable order from the Court.

Tamara O'Neill Moreland had recent success for our client/seller when the purchaser, who refused to close on a purchase agreement, brought a motion for a temporary injunction to prevent the statutory cancellation of the agreement.  She  was successful in defeating the motion and, since the purchaser failed to stay the order denying the motion, the purchase agreement statutorily cancelled. She was also able to defeat the purchaser's motions for reconsideration of the Court's order and for leave to file a supersedes bond retroactive to the statutory cancellation. The purchaser has now appealed the case before Court of Appeals. 
Gary Van Cleve and Michael Mergens received a favorable decision for their client, BP Products, North America, from the Minnesota Court of Appeals.
This case involved a franchisee's claim for loss-of-going concern damages allegedly arising from eminent-domain proceedings conducted by the City of Bloomington. The franchisee leased a gasoline franchise owned by BP, which was condemned in connection with a street-improvement project. The franchisee found another location, but claimed that it was not as successful as the previous location and attempted to bring a claim in the condemnation proceedings for the alleged loss-of-going concern value of his franchise.
The District Court found that the franchisee was barred from damages because his lease with BP was terminated upon the City's taking of the parcel encompassing the leasehold. The District Court further ruled that the franchisee did not meet the requirements necessary to establish a claim for loss-of-going concern value. The Court of Appeals affirmed the District Court's decision and refused to address whether BP had a specific obligation to seek a loss-of-going concern value on behalf of the franchisee.

Legal Musings:

Michael Mergens is a new guest columnist for The Inspired Economist, a blog that highlights the individuals and companies applying passion and innovation to economic, social, and environmental challenges. Read his first post about anticipated changes at the EPA.

An article by Larkin Hoffman attorneys Tamara O’Neill Moreland and Michael Mergens, “Challenging Land-Use Decisions: Avoiding the Jurisdictional Minefield,” was published in the February issue of The Hennepin LawyerGary Van Cleve's article, “Road Improvements: When Are Special Assessments Legitimate?” also appeared in that issue.



Gary Van Cleve will present at the March 25 Hennepin County Bar Association CLE program entitled, "Avoiding Trial by Fire: Preparing for Your First Condemnation Jury Trial." Gary will discuss his experience representing property owners in eminent domain matters. Marc Manderscheid of Briggs & Morgan, will counter Gary's discussion and present on the government side of the issue. 
Gary Van Cleve  will present on "Judicial Appeals of Administrative Zoning Decisions," part of a one-day live seminar on Land Use and Zoning Law Litigation hosted by the
National Business Institute on May 19. Seminar topics include property rights and police power, land use and zoning conflicts, damage disputes and administrative appeals.

Larkin Hoffman is pleased to be the title sponsor of the 2009 Larkin Hoffman MS 150 Bike Tour to benefit the Minnesota Chapter of the National Multiple Sclerosis Society. Please consider joining Team Larkin Hoffman on this weekend adventure June 12 to 14. The National MS Society supports you every mile of the way, while you experience the beauty of the Willard Munger, Sunrise Prairie and Gateway trails. The ride starts in Proctor, near Duluth, with a festive overnight at Grand Casino in Hinckley and finishes in Anoka. For information about joining Team Larkin Hoffman please visit our website or contact team captain, Gary Van Cleve.

On February 19, Gary Van Cleve and Rob Stefonowicz presented "A Contractor's Guide to Mechanic's Liens" at the Builders Association of Minnesota (BAM) Annual Convention, February 27 - March 1. If you would like a summary of their presentation email Erin Carlson.


The Larkin Hoffman Real Estate Litigation practice group combines experience in real estate, land use, construction and environmental matters with expertise in litigation, dispute resolution and appellate advocacy. Specialty areas include eminent domain actions; property tax assessment and special assessment appeals; landlord-tenant disputes; and liens and mortgages.


This alert is provided as a service to our clients and firm associates. While the information provided in this publication is believed to be accurate, it is general in nature and should not be construed as legal advice.




Gary A. Van Cleve, Chair
Email 952-896-3277 

Scott A. Johnson
Email 952-896-3203

Michael J. Mergens
Email 952-896-3297

Julie N. Nagorski
Email 952-896-1525

Tamara O'Neill Moreland
Email 952-896-6711

Jessica B. Rivas
Email 952-896-3384

Rob A. Stefonowicz
Email 952-896-3254

James M. Susag
Email 952-896-1572







Erin Carlson, Paralegal
Email 952-896-3317