Real Cases in Real Estate By Andrea Lee Negroni, Esq. – October 29th, 2012 Update

Real Cases in Real Estate By Andrea Lee Negroni, Esq. – October 29th, 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 October 29th, 2012

Neighbors' Driveway Agreement is a Personal License, Not a Permanent Easement

The Pelletiers and Aphrodite Laureanno are neighbors in Tiverton, Rhode Island. Laureanno bought her property in 1997. The Pelletiers acquired theirs in 1989.

The Pelletiers had a written agreement with Laureanno's predecessor in interest, permitting them to construct a driveway of 10 feet by 20 feet and plant and maintain shrubs two to three feet high. They were permitted to park one vehicle in this driveway with their neighbors maintaining right of full access. The driveway agreement was recorded in the town's evidence records. The Pelletiers used this driveway and maintained the shrubs for about 20 years.

When Laureanno bought her property in 1997, the deed she received did not make note of the driveway agreement. Laureanno became aware of the agreement while doing an assessment search, and notified the Pelletiers that she would not support their application for a dock expansion unless they acknowledged (1) that the driveway was partly located on her lot, and (2) that they would remove their improvements upon 60 days' notice from Laureanno. Two years later, Laureanno put up a fence along the lot line which partitioned the driveway, rendering it useless. The Pelletiers filed a complaint, claiming the driveway agreement was an easement that ran with the land.

A title attorney testified about whether the agreement would be considered a document coupled with a grant or a personal agreement. The trial justice found that the driveway agreement was a freely revocable license without extrinsic credible evidence of the parties' intent to create an easement. The Supreme Court reviewed the requirements for the creation of an easement by express grant, which requires "a writing containing plain and direct language evincing the grantor's intent to create a right in the nature of an easement rather than a license." In considering the driveway agreement, the court found the property where the Pelletier's vehicle could be parked was not specifically described-other than by a statement identifying the "northeasterly portion" of the land, so the alleged easement area was unclear. Therefore, the driveway agreement fell short of demonstrating an intent to create a permanent interest that runs with the land. Moreover, the license to park on the property terminated when the land affected passed into the hands of the grantee of the licensor, Ms. Laureanno.

The Supreme Court affirmed the judgment of the Superior Court dismissing the Pelletiers' complaint.

Pelletier v. Laureanno, 46 A.3d 28, 2012 R.I. LEXIS 98 (2012) [enhanced version available to lexis.com subscribers].

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