Real Cases in Real Estate By Andrea Lee Negroni, Esq. – April 22nd, 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 April 22nd, 2013

A Yoga and Pilates Studio Is a Suitable Home Occupation In a New Jersey Residence Zoned For Single Family Residential Use. The Ammiratas had two side-by-side residences on their property, which is located in a single family residential zoning area in the Borough of Point Pleasant, NJ. Originally the Ammiratas' property consisted of three homes on two lots, but one home was removed and the two lots were consolidated. The Ingenitos lived across the street from the Ammiratas. The Ammiratas obtained a zoning permit for a "home occupation use" so they could operate a yoga and pilates studio. One of their homes was used as a personal residence me and the other for the yoga studio. The Ingenitos disliked the traffic, noise and disruption of the home-based business and sued to prevent the operation of the home business.

The trial court asked the zoning officer to justify the grant of the permit to Ms. Ammirata and he responded by saying that both structures were capable of being used as single family structures, so neither was an accessory structure. As a result, the yoga studio was not incidental to the primary use of the property. The Ingenitos appealed to overturn the zoning decision, but the board denied the appeal, noting that there was only one complaint, no signs advertising the business were visible from the exterior, and the home occupation was confined to the interior of the residential structure. The zoning board also concluded the yoga studio did not generate excessive traffic. Despite this finding, the Ingenitos sought to nullify the board's determination.

They succeeded, and the home occupation use was negated. Then, the Ammiratas applied for a zoning variance, which was approved. The zoning board found the application for the yoga and pilates studio to be particularly suited for the home occupation use, as long as the business was confined to only one of the residences, not more than two clients were allowed per session, and the hours of the business were restricted. The Ingenitos appealed, and the Ammiratas cross-appealed.

The appeals court held that the zoning board should not have classified either of the Ammiratas' residences as an accessory building to other in the first place, and as a result no variance was needed. An accessory building or use is one "which is located on the same lot on which the main building or use is situated and which is reasonably necessary and incidental to the conduct of the primary use of such building..." As both residences were free-standing and separate, the appeals court concluded that the residence housing the yoga studio was not an accessory building and no variance was required in the first place. Furthermore, the court was satisfied that the yoga and pilates studio qualified as a home occupation under the zoning ordinance. Even though the Ingenitos preferred not to have a home occupation across the street from their home, the zoning ordinance provided for one, and the Ammiratas' yoga studio was found to be an appropriate home occupation under that ordinance.

Ingenito V. Point Pleasant Beach Zoning Board Of Adjustment, Superior Court Of New Jersey, Appellate Division, Docket No. A-3513-11T3, January 22, 2013, 2013 N.J. Super. Unpub. LEXIS 147 [enhanced version available to lexis.com subscribers].

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Comments

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  • 07-10-2013

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