Real Cases in Real Estate by Andrea Lee Negroni, Esq. – September 26th, 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 26th, 2011

A condominium building is residential, not commercial property for purposes of NJ sidewalk liability law.

A pedestrian walking to work broke his leg in a fall on an icy sidewalk adjacent to the Skyline condominium in Hoboken, NJ.  Two days earlier, 18-21 inches of snow had fallen. The condo's snow removal contractor cleared the sidewalks five times on the day the snow fell, but not on the day the pedestrian fell.

The NJ Supreme Court considered whether the condominium association and its management agent had sidewalk liability, based on judicial precedent or under a Hoboken ordinance requiring private citizens to keep sidewalks outside their properties clear of snow. New Jersey has a 30-year line of cases imposing sidewalk liability on owners of commercial property, but not owners of residential property. This case turned on whether the condominium was commercial or residential. Reviewing the master deed for the condominium, the court observed that the condominiums were restricted to residential use. On the other hand, earlier cases had reached the conclusion that apartment buildings were commercial in nature.

The commercial vs. residential distinction isn't clear-cut, as some property owners such as schools and churches appear not to fall into either category. The court rejected size of the property owner as being dispositive, and likewise rejected the non-profit vs. profit nature of the ownership entity. The determinative element is whether the predominant use of the property is income-producing. Whether property is residential or commercial depends on "the use of the abutting land," not the nature of the organization that owns the property." In the case of the Skyline condominium, there is no retail or commercial space in the building. By this test, the condominium is residential, not commercial. Holding to a long line of cases on sidewalk liability, the court found the condominium and its management had no liability to the pedestrian.

Hoboken has an ordinance requiring private property owners to keep the sidewalks outside their properties clear of snow and the court considered whether any liability existed under this ordinance. Finding no liability on the grounds there is no private right of action for violation of the ordinance, the court referred to the rationale for the ordinance, which it found to be the imposition of public burdens on private citizens, not the protection of individual members of the public. As a result, the pedestrian could not look to the snow-clearing ordinance as a basis liability.

Two judges dissented, arguing that the pedestrian was less likely able to bear the risk of injury than the combined 104 unit owners of Skyline condominium. However, the rule in New Jersey continues to be that commercial property owners have sidewalk liability but residential property owners do not.

Luchejko v. City of Hoboken, 23 A.3d 912 (July 27, 2011) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law]

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