Real Cases in Real Estate By Andrea Lee Negroni, Esq. – January 2nd, 2012 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 January 2nd, 2012

Keep the cat indoors, because the neighbors have no duty to return a lost cat to its owner.

Next-door neighbors were involved in a lawsuit over the disappearance of a pet cat. The Damianos sued the Linds, claiming that Lind trapped their cat and then abandoned or killed it. The cat owners believed their pet became trapped under the Linds' garage and that Lind had a duty to reunite the cat with its owners.

Lind set a trap on his property, which he baited with a can of tuna. He said the reason for the traps was to catch skunks, not cats, but that he'd unintentionally trapped three cats in three years. He admitted to trapping a cat in July 2009, which he claims he immediately released onto his driveway. The cat ran away and wasn't seen again. The Damianos claimed that Lind was at fault for the death of their pet, but the Washington appeals court observed that no Washington law requires the finder of a stray cat to return the pet to its owner.

Since the Damianos had no evidence that Lind harmed or killed their pet, they could not make a negligence case against him. Moreover, they could not maintain a bailment claim because a bailment generally requires a consensual transaction. An involuntary bailment, where the care of animals is concerned, requires consideration and there was none in the matter of the Damianos' cat. Finally, because they did not know if their cat was dead or injured, the Damianos could not succeed in a claim of malicious injury to a pet.

The Diamianos did not lose their entire case, however. The court allowed the claim of trespass to chattels, which occurs when a person interferes with another's personal property without justification, and deprives the owner of his use of the property. Lind argued that the trapped cat was a public nuisance specially injurious to him, justifying his interference with it. However, the court disagreed, noting that a special license is required to trap animals, which Lind did not have. The court also allowed the Damianos to proceed with their tort claims of outrage and fraud.

Damiano v. Lind, 2011 Wash. App. LEXIS 2000 (Wash. Ct. App. Aug. 25, 2011) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law]


A Property Owner's Tort Liability is Limited When Premises Hazards are Created by an Independent Contractor.

A contractor hired to install a satellite dish on the roof of a house sued the homeowner after he fell off the roof. The contractor couldn't reach the area where the dish was to be installed with the 8-foot ladder be brought to the job. He wasn't carrying his 24-foot ladder because his new truck didn't have a ladder rack. To reach the roof, the 225-pound contractor stepped on the roof extension while carrying 50 pounds of equipment. The roof extension collapsed immediately.  

The general rule cited by the California appeals court is that "a contractor and its employees may not recover tort damages from the contractor's hirer" unless an exception applies. The contractor invoked the exception that imposes liability on the landowner for maintaining premises with a pre-existing hazardous condition and failing to warn of that condition.

Here, the court found there was no pre-existing concealed condition that would create an unreasonable risk to the contractor, because the fall was the contractor's own fault. "The responsibility for job safety delegated to independent contractors may and generally does include explicitly or explicitly a limited duty to inspect the premises as well." The contractor chose to step on the roof extension, and in fact selected the access point for his work. The contractor also argued that the roof extension was built without a building permit, but the lack of a building permit was not the cause of the fall - the cause of the fall was that the contractor put too much weight on a small roof extension.

The appeals court affirmed summary judgment for the homeowner, because the roof extension was fit for its intended purpose as a rain shelter, and became hazardous to the contractor only because he elected to put an unreasonable amount of weight on it.

Gravelin v. Satterfield, 200 Cal. App. 4th 1209 (Cal. App. 1st Dist. 2011) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law]

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