Real Estate Law

Real Cases in Real Estate by Andrea Lee Negroni, Esq. and Kendra Kinnaird, Esq. – Aug. 30th Update


By Andrea Lee Negroni and Kendra Kinnaird

BuckleySandler LLP

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 30th, 2010

Sikh Temple Construction in Residential Subdivision Violated Deed Restrictions.

In 2003, a Sikh religious organization (AGS) bought a lot in a residential subdivision, with a mobile home on it. The previous owner had used it as a residence. AGS erected a sign and began holding religious services in the mobile home. AGS got a certificate of occupancy from the City of Bee Cave after making improvements including a gravel parking lot with 23 spaces and complying with the Americans With Disabilities Act. In 2005, AGS made plans to build a new and larger building with maximum occupancy of 200. They called this the New Temple. Site plans were approved by the city and construction of the New Temple began in December 2007.

Leslie and John Bollier bought a lot in the same subdivision in March 2007 and sued AGS in February 2008 to enforce deed restrictions. The relevant restrictions prohibited lots from being used for non-residential purposes, and prohibited building structures other than single family dwellings with garages. At trial, the court denied a permanent injunction against the New Temple because, among other things, the statute of limitations for enforcing covenants had expired and because the trial court concluded the Bolliers had waived their claim to enforce the covenants. The Texas Appeals court reviewed that decision.

Texas has a 4-year statute of limitations for enforcing deed restrictions. AGS took the position that since a temple had operated on the property since 2003, the Bolliers' suit was filed too late. "An enforcement action accrues upon breach of the restrictive covenant," said the court, leading to the necessity to determine when the covenant was breached. Although the use restriction (no non-residential uses) was breached as far back as 2003, the building restriction (no buildings other than dwellings) was not breached until construction began in 2007. The Bolliers were therefore within the statute of limitations for enforcing the deed restriction.

The court also rejected AGS's argument that the temple could be made into a residence. New Temple was designed without bedrooms and with separate mens' and womens' restrooms, for example. A restriction on non-residential structures does not permit construction of any building that could conceivably be turned into a dwelling, according to the court.

The case is instructive about when restrictive covenants are deemed waived. Waiver occurs when landowners "voluntarily and intentionally" relinquish their right to enforce covenants. AGS made the point that worshippers had been attending the mobile home temple since 2003. However, the New Temple, with a capacity of 200 in a new building, was considered to be substantially and significantly different than the previous non-residential use, so the homeowners' objections were not voluntarily and intentionally waived. Even though AGS had already paid $150,000 for construction of the New Temple, they were permanently enjoined from construction and ordered to remove it from the residential subdivision. subscribers can view the enhanced version of Bollier v. Austin Gurdwara Sahib, Inc., 2010 Tex. App. LEXIS 5363 (Tex. App. Austin July 9, 2010)

Non-subscribers can use lexisOne's Free Case Law search to view the free, un-enhanced version of Bollier v. Austin Gurdwara Sahib, Inc., 2010 Tex. App. LEXIS 5363 (Tex. App. Austin July 9, 2010) 


Secondhand Smoke Lawsuit Against Apartment Complex Claims Public Nuisance.

Melinda Birke, a 5-year old resident of a California apartment complex sued the property owner for public nuisance because the apartment permitted smoking in common areas such as the pool and playground. Her argument was that secondhand smoke is dangerous to health, aggravated her respiratory problems, and interfered with the comfortable enjoyment of her home. The owner of the complex banned smoking indoors but permitted smoking in outdoor areas. One of the key issues in the case was whether the owner's policies created or contributed to the nuisance.

A public nuisance claim requires the plaintiff to have symptoms or damages that are different from those suffered by the general public. Melinda's claim that secondhand smoke is dangerous to everyone partly undermined her claim of public nuisance, at least without evidence that she suffered a special injury not shared by others. Moreover, a public nuisance must be both substantial and unreasonable before a court will enjoin it. Ordinary annoyance, inconvenience and interference must be expected when people live together in communities. Melinda would have to demonstrate that an ordinary person would be disturbed by the outdoor smoking in order to win her case.

The apartment complex owner said Melinda had no right to sue because she was not a tenant of the complex, being only five years old. This argument failed, with the court concluding that "a child living with her family in a rented apartment has standing to bring a private nuisance claim based on interference with her right to enjoy the rented premises."

This case does not address the merits of lawsuits claiming damages from secondhand smoke - it only allowed Melinda's case against the apartment owners to go forward. subscribers can view the enhanced version of Birke v. Oakwood Worldwide, 169 Cal. App. 4th 1540 (Cal. App. 2d Dist. 2009)

Non-subscribers can use lexisOne's Free Case Law search to view the free, un-enhanced version of Birke v. Oakwood Worldwide, 169 Cal. App. 4th 1540 (Cal. App. 2d Dist. 2009)