REAL CASES IN REAL ESTATE
By Andrea Lee Negroni, Esq.
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
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 July 26th, 2010
Damages for Diminution of Value When Property is Saturated by Sewage Backup
The Smiths owned a home in
Kentucky. The Mountain Water District installed a new sewer system by building
the new system above an existing sewer system. During the construction of the
new system, a pipe from the old system broke, and sewage saturated the Smiths'
property. A tank was connected to the old sewer system so the Smiths filled the
tank with concrete at the suggestion of county officials, who thought the sewage
had backed up in the tank. The concrete remedy did not work and the sewage
reappeared on their property.
sued Mountain Water for diminution in value of their property, which was
estimated at $15,000 in 2006 and $50,000 in 2008. Mountain Water defended by
claiming the Smiths had not introduced evidence of the cost to repair the
damage. Mountain Water's position was that the true measure of damages was the lesser of the cost to repair the damage
and the diminution of value. A jury awarded the Smiths $30,000 and Mountain
Water appealed. The Kentucky court decided that the Smiths did not have to
prove repair costs if the damage could not be repaired and they were not
seeking repair costs as damages.
Smiths were unable to repair the damage, there was no dollar amount of damages
applicable to repairs. In their lawsuit, they sued for only the amount by which
their property value was reduced. The court upheld the jury verdict on the
grounds that the choice of repair costs or
diminution in value could not be applied when the property owners did not seek
District v. Smith, Ky. App. No. 2008-CA-002369-MR, May 21, 2010; online at http://opinions.kycourts.net/coa/2008-CA-002369.pdf
In Granting a
Variance, the Village of Schaumberg Illinois is Not Required to Comply with its
Zoning in the Village of
Schaumberg requires homes on lots zoned R-6 to maintain back yards of 30 feet.
Mr. and Mrs. Wehmeier applied for a variance to build a patio room in their
rear yard, despite its leaving only 19 feet of rear yard. The zoning
regulations allowed the Village to grant a variance if strict application of
the rules would present practical difficulties or hardship for a property
owner. The Wehmeiers got the variance over the objections of their adjacent
neighbor, Deborah Dunlap. Dunlap sued the Wehmeiers and the Village in an
attempt to prevent unlawful land use. The case helps explain the difference between administrative and
legislative zoning decisions.
The Village and the Wehmeiers
said that since the variance was granted, there was no "unlawful" land use, and
that Dunlap had no legal right to sue the Village anyway. This case provides an
interesting (if long-winded) discussion of whether
the granting of zoning variances is a legislative act or an administrative act.
The significance of the distinction is that a legislative act is subject to
judicial review only if it was arbitrary or violated substantive due process,
but an administrative act (a quasi-judicial act) is subject to greater judicial
scrutiny. When a municipality makes an administrative zoning decision, it must
follow the zoning regulations, but if it makes a legislative decision, it need
not strictly adhere to these regulations.
Whether zoning decisions are legislative decisions or administrative decisions requires some
background, which the decision fortunately provides. An administrative decision
affects "a small number of persons on individual grounds based on a particular
set of disputed facts that were adjudicated." A legislative decision, on the
other hand, involves "general facts affecting everyone." Illinois courts
generally consider zoning decisions to be legislative, and they are upheld by
courts if they represent a "rational means to accomplish a legitimate purpose,
as long as a fundamental right is not implicated." The distinction is intended
to reduce the likelihood of success to challenges to the issuance of zoning variances.
Dunlap also claimed that the
Village hadn't proved that the Wehmeiers would have had a hardship if the
variance had not been granted. However, since Dunlap started the lawsuit, she
was the person seeking relief from the variance. Therefore it was up to her,
not the Wehmeiers, to show that the variance was unreasonably granted. The
burden of proof in challenging the variance is on the challenger, not the
The variance was upheld, because
it was not found to be arbitrary or unreasonable and it had no substantive
relationship to the public health, safety, morals, comfort or general welfare
of the public.
Lexis.com subscribers can view the enhanced version of Dunlap
v. Village of Schaumberg, 915 N.E.2d 890, 394 Ill. App. 3d 629 (Sept. 25, 2009)
Non-subscribers can use lexisOne's Free Case Law search to view the free,
un-enhanced version of Dunlap v. Village of Schaumberg, 915 N.E.2d 890, 394 Ill. App.
3d 629 (Sept. 25, 2009)