Real Cases in Real Estate by Andrea Lee Negroni, Esq. – August 15th, 2011 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 August 15th, 2011

Noise and dust from basement construction does not entitle first floor tenants to summary judgment for breach of proprietary lease and breach of warranty of habitability. 

Residents of the first floor of a New York City cooperative building sued the coop association, a construction company and the board of the association for breach of proprietary lease and breach of the warranty of habitability because of the noise, dust and disruption created by construction in the basement. A sinking floor in one of the first floor units tipped off the board that repairs might be needed, and an inspection found that the wooden floor under the first floor apartments was rotting out. The coop shareholders approved a project to install steel beams and reinforce the existing wood framing.

The work upset the first floor tenants. They complained about the dust, noise and smoking by the construction crew. They sued for reimbursement for cleaning products, legal costs, rug cleaning, air purifiers and other damages. They sought a summary judgment on the habitability issue, claiming they were subjected to hazardous conditions detrimental to health, life and safety. The coop argued that the fact the residents continued living there raised issues of fact about whether the units were indeed uninhabitable.

The New York Supreme Court reviewed the elements necessary for a prima facie case of the breach of quiet enjoyment, which are: (1) the tenant must establish that the landlord's conduct substantially deprived him of the beneficial use of the premises; and (2) an "actual ouster" (or if the tenant claims constructive eviction, abandonment of the premises. The warranty of habitability has three features: (1) the premises are fit for human habitation; (2) the premises are fit for the uses reasonably intended; and (3) the occupants will not be subjected to dangerous or hazardous conditions that threaten their lives, health or safety.

With these principles in mind, the court identified conditions that materially affect the health or safety of occupants of a building, including insect or rodent infestation, insufficient heat and plumbing, dangerous electrical outlets or wiring, inadequate sanitation or "similar services which constitute the essence of the modern dwelling unit."  The conditions cited by the plaintiffs created disruptions that didn't rise to the level of danger to life, health or safety. The court allowed that the plaintiffs might eventually prove a warranty of habitability but they hadn't demonstrated a right to summary judgment on the issue.

Bedke v. Chelsea Gardens Owners Corp. et al., 27 Misc. 3d 1212(A), 910 N.Y.S.2d 403 (March 25, 2010) [enhanced version available to lexis.com subscribers]

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