Real Cases in Real Estate by Andrea Lee Negroni, Esq. – September 15th, 2011 Update

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 the Week of September 15th, 2011

Condemnation of a portion of a parcel of private land for airport expansion does not preclude owner's claim for an additional taking if the remainder of the land is affected in the future.

Lawrence County South Dakota condemned 206 acres of a 515-acre parcel to expand an airport runway to accommodate larger aircraft. The property owners and county could not reach agreement on the value of the land so the damages were fixed at $1,218,983 after a jury trial. Lawrence County then sought to limit the owners' right to make any future claims of taking against the 309 uncondemned acres; the owners resisted this motion by the county.

The case is a good legal lesson on property rights in airspace. South Dakota law establishes property rights over airspace, vesting it in the owners of the surface beneath, but applies altitudinal limits to those rights to permit aircraft flight over the land. State law also creates a "public highway for air commerce in the navigable air space over the land." The property owners hired an expert to testify that the remaining 309 acres were subject to future diminution in value because the airport might eventually be expanded to accommodate even larger aircraft, but the court refused to hear the expert's testimony, finding it speculative and conjectural. "All that Owners provided was speculation about a potential future invasion of the airspace and no evidence as to what damage would result to the remaining 309 acres by any ordinances that County would enact for the runway expansion."

However, the court decided that if the uncondemned parcel became subject to a taking after the initial proceeding involving the 206 condemned acres, the owners could make a claim as to that parcel. The court considered cases involving noise, noting that the introduction of larger and noisier aircraft could constitute an additional easement and allow the owners to make additional claims. The court found that height restrictions imposed by future runway extension projects could form the basis of new claims, should they impact the remaining 309 acres. Because the 309 acres was not part of the county's condemnation petition, the judgment in the case could not preclude the owners' later claims for a taking as to that parcel.

Lawrence County v. Miller, 786 N.W.2d 360 (South Dakota, July 21, 2010) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law].

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