July 16, 2019

Frederick Skillern: Real Estate Case Law — Judgments and Fraudulent Transfer

Editor’s note: This is Part 13 of a series of posts in which Denver-area real estate attorney Frederick Skillern provides summaries of case law pertinent to real estate practitioners (click here for previous posts). These updates originally appeared as materials for the 32nd Annual Real Estate Symposium in July 2014.

frederick-b-skillernBy Frederick B. Skillern

Shigo, LLC v. Hocker
Colorado Court of Appeals, February 27, 2014
2014 COA 16

Execution upon water rights; homestead; water rights appurtenant to land.

A creditor obtains a judgment against Hocker for $4.4 million, and seeks to levy and execute upon Hocker’s shares in the Highland Ditch Company. Hocker owns an undivided 50 percent interest in two and three-quarter shares of Highland stock. The Highland shares represent Hocker’s right to use water that runs through a mutually owned ditch, a branch of which leads to a pond on the 35-acre farm that Hocker owns with her husband. Hocker files a claim under the homestead exemption, asserting that the shares, which represent water rights appurtenant to her farm, could not be levied. The court denies Hocker’s claim of exemption, and Hocker appeals.

The district court found that the homestead exemption “does not apply to water stock certificates.” The appeals court holds that the homestead exemption for a “farm” includes not just the farm’s soil, but also the water rights appurtenant to the land.

Shares of stock in a mutual ditch company represent water rights. However, because the record is not clear as to whether the water rights represented by the Highland shares are necessary to the use and enjoyment of the farm, the case was reversed and remanded to the trial court for further findings on that issue.

Frederick B. Skillern, Esq., is a director and shareholder with Montgomery Little & Soran, P.C., practicing in real estate and related litigation and appeals. He serves as an expert witness in cases dealing with real estate, professional responsibility and attorney fees, and acts as a mediator and arbitrator in real estate cases. Before joining Montgomery Little in 2003, Fred was in private practice in Denver for 6 years with Carpenter & Klatskin and for 10 years with Isaacson Rosenbaum. He served as a district judge for Colorado’s Eighteenth Judicial District from 2000 through 2002. Fred is a graduate of Dartmouth College, and received his law degree at the University of Colorado in 1976, in another day and time in which the legal job market was simply awful.

Colorado Court of Appeals: Homestead Exemption Protects Farmland from Levy and May Also Protect Any Water Rights Appurtenant to the Land

The Colorado Court of Appeals issued its opinion in Shigo, LLC v. Hocker on Thursday, February 27, 2014.

Homestead Exemption Statute—Proper Interpretation—Writ of Execution—Exemption of Water Rights—Levying Shares to Satisfy Judgment.

Plaintiffs claimed that Hocker had operated a Ponzi scheme that defrauded them of more than $6 million. Hocker failed to defend the action, and the district court entered a default judgment against her. The parties then stipulated that Hocker would pay plaintiffs damages amounting to $4.4 million, plus interest. Plaintiffs were unable to collect from Hocker.

In an attempt to reach some of Hocker’s assets, they served Hocker with a writ of execution, seeking to levy Hocker’s shares in the Highland Ditch Company (Highland). Hocker owns an undivided 50% interest in two and three-quarter shares of Highland stock. The Highland shares represent Hocker’s right to use water that runs through a mutually owned ditch, a branch of which leads to a pond on the thirty-five-acre farm that Hocker owns with her husband.Hocker protested, and filed a claim under the homestead exemption, asserting that the shares could not be levied.The court denied Hocker’s claim of exemption, and Hocker brought this appeal.

Hocker argued that the district court erred in concluding that the homestead exemption “does not apply to water stock certificates,” and “does not preclude the seizure and levy of the Stock Certificates” at issue in this case. The homestead exemption for a “farm” includes not just the farm’s soil, but also the water rights appurtenant to the land. Shares of stock in a mutual ditch company represent water rights. However, because the record is not clear as to whether the water rights represented by the Highland shares are necessary to the use and enjoyment of the land in question as a farm, the case was remanded to the trial court for further findings on that matter.

Summary and full case available here.