Brice, et al. v. Ferrell
| Docket Number: | 2004-CA-01873-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 01-10-2006 Opinion Author: IRVING, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Real property - Title of condo parking space - Common element - Section 89-9-5 - Adverse possession Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 08-24-2004 Appealed from: Adams County Chancery Court Judge: Gerald E. Braddock Disposition: APPELLANTS ENJOINED FROM INTERFERING WITH APPELLEE’S USE AND POSSESSION OF CONDOMINIUM PARKING SPACE, AND APPELLANT ZUCCARO ORDERED TO PAY $2,500 TO APPELLANTS BRICE. Case Number: 2002-229 |
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| Party Name: | Attorney Name: | |||
| Appellant: | BRUCE W. BRICE AND WIFE, MAXINE B. BRICE,
INDIVIDUALLY AND AS TRUSTEES OF THE
BRUCE W. BRICE AND MAXINE B. BRICE
REVOCABLE LIVING TRUST, AND JOSEPH S.
ZUCCARO |
W. BRUCE LEWIS, BRUCE M. KUEHNLE |
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| Appellee: | HAZEL HAMPTON FERRELL | W. HOLLIS MCGEHEE, RONALD L. WHITTINGTON |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Real property - Title of condo parking space - Common element - Section 89-9-5 - Adverse possession |
| Summary of the Facts: | Both Hazel Ferrell and Bruce and Maxine Brice claim to own the same parking space at the Orleans Condos in Natchez. Ferrell purchased Unit B-3 of the Condos in 1998, and the Brices purchased Unit B-2 in 1999. In 2001, Joseph Zuccaro, a developer of the complex, sold the disputed parking space to the Brices for $2,500. In 2002, Ferrell filed suit against Zuccaro and the Brices, alleging several different theories of recovery. The Brices filed a counterclaim against Ferrell to remove cloud of title on the parking space or, in the alternative, to gain possession of the disputed property through adverse possession. The Brices also sued Zuccaro to refund their purchase price of the disputed space if the court found that the Brices did not have title or had not adversely possessed the space. The chancellor found that Ferrell had title to the parking space and cancelled the deed for the parking space from Zuccaro to Brice. The chancellor also ordered the Brices to stop interfering with, or violating in any way, the rights of Ferrell to the parking spot. The chancellor granted a judgment in favor of the Brices against Zuccaro for the $2,500 paid to Zuccaro for the space. The Brices and Zuccaro appeal. |
| Summary of Opinion Analysis: | The Brices argue that the chancellor erred in finding that Ferrell possessed title to the disputed parking space. The specific holding of the chancellor was wrong, as neither Ferrell, nor the Brices, can possess title to the parking space. The parking space is clearly a common element of the condominium, owned by all the owners of the units. Since the parking spot in question was defined, in the Declaration of Condominium, as a “common element,” it could not be owned by any particular unit. Common elements of a condominium, by statute (section 89-9-5(2) and (4)), cannot be owned by a particular unit. However, the language of the Declaration of Condominium makes it clear that each owner of a condominium unit has the right to the exclusive use and possession of the parking slots assigned that unit. Ferrell still has the “exclusive” right to use the parking space, free from interference by the Brices or Zuccaro, as stated in the Declaration of Condominium. Although the judge’s findings and orders should not have been couched in terms of clearing a cloud on title, the proper end result is much the same. The Brices and Zuccaro also argue that the chancellor’s findings were in error because he found that the Brices had not acquired title to the spot by virtue of adverse possession. Since the parking spots are a common element of the condominium, belonging to all of the units, any adverse possession would have to be asserted against the entire condominium. The evidence is clear that adverse possession was not proved against all the condominium owners. |
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