Real Cases in Real Estate By Andrea Lee Negroni, Esq. – February 11th, 2013 Update

Real Cases in Real Estate By Andrea Lee Negroni, Esq. – February 11th, 2013 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 February 11th, 2013

Outdoor Wood-Burning Hydronic Heater (OWB) is not a Private Nuisance and does not create a Continuing Trespass on Neighboring Property in a Rural Town in Rhode Island.

A neighbors' dispute over emissions from an outdoor wood-burning hydronic heater (OWB) is an interesting lesson in property law and in science. An OWB burns wood and directs the heat into an indoor heating system. Steam and smoke generated by the burning wood are released into the air through a metal smokestack. The type of wood burned makes a difference in the smell of the smoke released. The Pezzas installed an OWB in their yard, adjoining the Charettes' yard, in 2008. It was one of many OWBs in the rural town of Foster, Rhode Island. When it was installed, Foster had no regulations on the installation or operation of OWBs.

The Charettes sued the Pezzas to prevent the Pezzas from using their OWB, which the Charettes claimed released disgusting odors, prevented them from using their yard, sickened their children, embarrassed them so much they did not have guests at home, and made them "prisoners" in their house. They even said the emissions endangered their dog. Mr. Charette referred to OWBs as a form of "terrorism" and went on a public campaign against them.

The Charettes claimed private nuisance, continuing trespass and negligence. They took videos of the smoke in their yard and presented these at trial, along with testimony from other neighbors and an expert. The Pezzas hired their own expert. Both experts agreed that the health effects of smoke are based on the concentration of particulates in the emissions, not the quantity of the emissions. The court found the Pezzas' expert more credible than the Charettes' expert. Moreover, the court thought the Charettes' didn't prove the haziness on their land came from smoke generated at the Pezzas. The hazy density in the photos could have been caused by sun glare, darkness or overcast conditions.

The court reviewed Rhode Island's law of private nuisance. A "private nuisance arises from the unreasonable use of one's property that materially interferes with a neighbor's physical comfort or the neighbor's use of his real estate." The test for private nuisance is whether a person of ordinary habits and sensibilities would be negatively affected. Even if the activity is legal, a court can still grant relief from a private nuisance. Mere annoyance is not enough to constitute private nuisance. Here, the court was not persuaded the wood-burning appliance was a private nuisance; the Charettes had so many varied complaints about the OWB and the smoke that they were not considered persons of ordinary habits and sensibilities. The court found their testimony and claims exaggerated.

In rejecting the claim of continuing trespass, the court cited Rhode Island law, defining it as "an unprivileged remaining on land in another's possession." The deposit of dangerous particulates on another's property could theoretically be continuing trespass, but the Charettes' photo evidence didn't prove that the haziness and denseness over their land were caused by smoke or emissions.

Finally, the court considered liability for negligence, which is distinguishable from liability for nuisance. A possessor of land owes persons outside his premises a duty to use reasonable care to prevent injury as a result of activities on the premises. Here, the court found no negligence by the Pezzas because they were reasonable in placement and operation of their OWB.

Charette v. Pezza, 2010 R.I. Super. LEXIS 126 (August 12, 2010) [enhanced version available to subscribers]. 


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