Real Estate Law

Real Cases in Real Estate by Andrea Lee Negroni, Esq. – November 9th, 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 November 9th, 2011

A row of cypress trees is not a fence.

Sleepy Hollow Village (NY) Code prohibits walls or open or solid fences more than three feet high in front yards. David Fink planted 54 cypress trees on his property and his neighbor Beth Ford sued for a judgment declaring that the trees violated restrictive covenants on Fink's property.  Among other things, Ford claimed Fink's trees were prohibited by the covenants against high hedges, erection of fences, and noisy, dangerous or offensive things. There were other claims in Ford's lawsuit, including trespass, and Fink challenged each one of them. The Supreme Court of New York, Appellate Division, considered which of Ford's claims (and Fink's motions to dismiss) would be permitted to go forward.

Fink's trees were planted densely and obtained a height of 15-20 feet. Even though "the law favors the free and unobstructed use of real property," Ford's complaint was held to state a cause of action for violation of the restrictive covenant barring hedges higher than five feet. The claim of violation of the code pertaining to pruning and trimming hedges was also allowed.  However, the court dismissed the portion of Ford's complaint alleging Fink erected a fence of impermissible height, finding that the covenant barring fences cannot reasonably be interpreted to prohibit the planting of a row of trees. The plaintiff's claim that the planting of trees violated a restrictive covenant against noxious, noisy, dangerous or offensive things was also unsuccessful. The claim of trespass was dismissed because Ford did not allege that the trees grew on her side of the property or bent over her property.

While a dense row of tall cypress trees may look like a fence, and function as a fence as a practical matter, it is not a fence within the meaning of a code prohibiting the erection of a fence on real property in New York.

Ford et al v. Fink et al, 2011 N.Y. App. Div. LEXIS 3773, 2011 NY Slip Op. 3800, 84 A.D.3d 725 (May 3, 2011) [enhanced version available to subscribers / unenhanced version available from lexisONE Free Case Law].

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