Real Cases in Real Estate By Andrea Lee Negroni, Esq. - Aug 2nd Update

REAL CASES IN REAL ESTATE

By Andrea Lee Negroni, Esq.

BuckleySandler LLP

alnegroni@buckleysandler.com

Real Cases in Real Estate is a weekly update on real estate law, with legal principles illustrated and explained by lawsuits from around the country. The topics are wide-ranging for appeal to a broad spectrum of readers including lawyers, homeowners, investors and the general public. Andrea Lee Negroni, a Washington DC attorney and legal writer with 25 years of experience in financial services and mortgage law, contributes the case summaries.

Followers of Real Cases in Real Estate will learn and be entertained by lawsuits involving nuisance, trespass, zoning violations, deed restrictions, title insurance, public utilities, mechanics liens, construction defects, adverse possession, foreclosure and eviction, divorce and marital property rights, tenants' rights, and more. Real Cases in Real Estate uncovers the unpredictable, amusing, and sometimes outrageous disputes between next-door neighbors, contractors and homeowners, condo boards and residents, real estate brokers and homebuyers, and zoning administrators and developers.

Each fully cited case summary highlights the essential law of the case and explains the principal legal theories and concepts relevant to the outcome. Plain language treatment makes Real Cases in Real Estate accessible to lawyers and laymen alike.

Whether you follow real estate law professionally or as a hobby, you'll find something new and useful every week in Real Cases in Real Estate.

 

Updates for week of Aug 2nd, 2010

Dog Owner's Right to Pet Cemetery Plot Terminated For Failure to Pay Annual Fees.

Man-Hung Lee must have really loved her dog Dodo, because she spent $10,000 on the surgical implant of a pacemaker. The dog died. At the Hartsdale Pet Cemetery, she paid $495 for a casket, $195 for an individual burial, and $783 for a monument. The Burial Right Certificate allowed her the exclusive use of a particular plot for the burial of her dog, but it states that the certificate is not a deed. The certificate also states that holders must pay their proportionate share of the upkeep and maintenance of the cemetery, either in the form of an annual charge or a one-time perpetual care fee.

An agreement that was made part of the Burial Right Certificate requires plot holders to maintain a fence or railing around their plots, and keep them in good order. Noncompliant owners are entitled to receive a notice stating that if they do not observe these conditions within six months after the notice is mailed, their rights to the plot cease and revert to the owner. Ms. Lee chose annual maintenance of the plot, for a fee of $31 and she paid the first year's fee in 2000. However, she never made any other payments, and in 2004, the cemetery's invoices were returned with a post office indication "attempted, not known." The dog's body was exhumed and cremated, and its ashes were spread over the cemetery. Ms. Lee sued the cemetery, claiming her dog was wrongfully cremated.

The New York court reviewed state law regulating the conduct of pet cemeteries and pet crematoriums, which imposes a special responsibility on cemetery owners to "prevent causing grieving pet owners from experiencing further any emotional pain or financial manipulation." The court decided that Ms. Lee and the cemetery had a contract for services, which is required to contain all the material terms of the agreement. Even though Ms. Lee claimed she never elected annual payments, she had signed a document which described the payment options, and she had previously made a single payment described as "annual general care."

Ms. Lee also claimed she never received the cemetery's annual invoices after moving from New York to New Jersey, but her agreement specifically stated that the cemetery is not responsible if mail doesn't reach the plot-holder. Her claim against the pet cemetery was unsuccessful, with the court awarding the pet cemetery damages of $145 for the unpaid annual fees for 2001-2004.

Lexis.com subscribers can view the enhanced version of Man-Hung Lee v. Hartsdale Canine Cemetery, 28 Misc. 3d 234, 899 NYS2d 823, 2010 NY Slip. Op. 20151 (N.Y. City Ct., April 26, 2010)

Non-subscribers can access State Case Law, Codes, Full Jurisdictional Shepard's® Citations and more using lexisOne's Research Value Package. 

 

Dog Breeding on Residential Property Was A Business, Not A Hobby.

Iza Ackerman, a breeder of German Shepherd show dogs, owned a 4-acre residential property in Howell Township, New Jersey. She got a permit to build a storage building on the property, representing it would be for "personal storage." However, she converted the storage building into a dog kennel for her show dogs and built dog runs outside the building. She bred 10-12 dogs a year and sold the ones she did not want to keep for show purposes. She characterized her activities as a hobby, because dog kennels are not allowed in the township's agricultural rural estate (ARE-3) zone. The township conducted a code enforcement inspection and cited Ackerman for operating a dog kennel.

Ms. Ackerman defended herself by explaining that she feeds and cares for her dogs herself, and does not advertise with a sign on the property. She stated she does not earn a profit from her dog breeding, and because she has a separate full-time business, she said the dog breeding was not a business, but a hobby. The township argued that whether or not she earned a profit from breeding was not determinative of whether it was a business, because many businesses don't earn a profit for years at a time. Even if not profitable, the township argued that Ackerman's objectives were pecuniary, and she earned $10,000-12,000 per year selling dogs. The important factors in distinguishing a business from a hobby, from the township's perspective, are whether her activities were systematic and intense. In addition, the township said she had fitted out her property with all the accoutrements of a trade.

Certain home office occupations are permitted by the zoning code when they are incidental to the residential use of the property and compatible with residential uses, but the Howell Township zoning rules specifically prohibit boarding and breeding kennels for dogs and cats as one of these incidental uses. A property complete with a housing facility for dogs, individual fenced cages for them, extensive fenced dog runs, and electricity, water and drainage, is not an "incidental" use, according to the township.

The township won this case. The breeding and sale of dogs, and the boarding of up to 12-14 dogs at a time constitute a business, not a hobby.

Lexis.com subscribers can view the enhanced version of Ackerman v. Howell Twp. Zoning Bd. of Adjustment, 2010 N.J. Super. Unpub. LEXIS 1377 (App.Div. June 23, 2010)

Non-subscribers can access State Case Law, Codes, Full Jurisdictional Shepard's® Citations and more using lexisOne's Research Value Package.