Real Cases in Real Estate by Andrea Lee Negroni, Esq. – Aug. 23rd Update

By Andrea Lee Negroni, Esq.

BuckleySandler LLP

alnegroni@buckleysandler.com

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 week of Aug 23rd, 2010

Noise and Socially Disruptive Behavior Shouldn't be Regulated through Zoning.

The Ewing Citizens for Civil Rights Sued the Township of Ewing (New Jersey) to overturn zoning ordinances that applied stricter requirements to rental units than non-rental units. The Township was responding to complaints about "college rentals," which included overcrowding, loud parties, intoxication, bad behavior, illegal parking, traffic congestion, and neglected property maintenance. The Township's witness testified that these problems were worse for properties with a small number of rental units.

One of the challenged ordinances required rental units to have more square footage devoted to non-sleeping areas than similar properties that were not rented. Another required a street parking space for every licensed driver occupying a rental property, regardless of whether that driver had a car, or parked on the street. For non-rented properties, on the other hand, the zoning established a number of parking spaces per housing unit, not per licensed driver. The citizens prevailed, as "New Jersey law has consistently invalidated zoning ordinances intended to cure or prevent anti-social conduct in dwelling situations." In effect, the court said that special zoning rules applicable to rental property create unjustifiable restrictions on the use of private property. Without mincing words, the challenged zoning restrictions were characterized as "sweepingly excessive."

The Township should have addressed the problem of bad behavior by college students by enforcing general statutes, rather than by changing its zoning rules. In other words, the right approach would have been to use the law to tackle the unlawful conduct itself. The police could have arrested publicly intoxicated persons, or charged the tenants with nuisance if they made too much noise. They could also have enforced traffic laws and parking restrictions. Instead, the ordinance required more non-sleeping space for rental units than non-rental units which "simply, but significantly, increased the space requirement solely for rental units."

Lexis.com subscribers can view the enhanced version of Ewing Citizens for Civ. Rights, Inc. v. Twp. of Ewing, 2010 N.J. Super. Unpub. LEXIS 647 (App.Div. Mar. 26, 2010)

Non-subscribers can access State Case Law, Codes, Full Jurisdictional Shepard's® Citations and more using lexisOne's Research Value Package. 

Real Estate Broker Who Handled Summer Rental is Not Liable for Injury to Tenants Who Had Occupied the House Nine Days Before an Accident.

The Supreme Court of New Jersey reviewed the duty of care of a real estate agent who conducts an open house. The general rule in New Jersey is that a real estate agent has a duty to protect people who come to an open house, but that duty is limited to alerting visitors about defects that are "reasonably discoverable" through an ordinary inspection. The rule was developed in the 1993 case of Hopkins v. Fox & Lazo Realtors, and is known as the Hopkins duty of care. In this case, the Hopkins duty of care was held not to extend to a real estate agent who handled a summer house rental. The justices on the Supreme Court split evenly on the outcome, so the appeals court ruling was affirmed.

Columbia Reyes rented a four bedroom summer house for two weeks from a real estate agent. She had not seen the house before renting it. On the ninth day of the rental period, Reyes' father opened a bedroom sliding door to step on to the balcony, but fell down when he failed to see a drop from the bedroom floor to the deck. He tumbled down the steps, which had no guardrail, and suffered permanent injuries.

Reyes sued the real estate broker on the theory that he did not give fair warning of a dangerous condition. The trial court found the real estate broker had no duty to inspect the home or warn the family of dangerous conditions, even though the Hopkins case put real estate agents on notice that they should examine property before an open house to discover conditions that might put visitors at risk. The real estate agent won the case, and avoided liability, because the Reyes family had been in the house for nine days before the accident, and during that time, they could have discovered for themselves the dangerous drop from the house to the deck.

Lexis.com subscribers can view the enhanced version of Reyes v. Egner, 201 N.J. 417 (N.J. 2010)

Non-subscribers can use lexisOne's Free Case Law search to view the free, un-enhanced version of Reyes v. Egner, 201 N.J. 417 (N.J. 2010)