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 Aug 2nd, 2010
Dog Owner's Right to Pet
Cemetery Plot Terminated For Failure to Pay Annual Fees.
Man-Hung Lee must have really loved her
dog Dodo, because she spent $10,000 on the surgical implant of a pacemaker. The
dog died. At the Hartsdale Pet Cemetery, she paid $495 for a casket, $195 for
an individual burial, and $783 for a monument. The Burial Right Certificate
allowed her the exclusive use of a particular plot for the burial of her dog,
but it states that the certificate is not a deed. The certificate also states
that holders must pay their proportionate share of the upkeep and maintenance
of the cemetery, either in the form of an annual charge or a one-time perpetual
An agreement that was made part of the
Burial Right Certificate requires plot holders to maintain a fence or railing
around their plots, and keep them in good order. Noncompliant owners are
entitled to receive a notice stating that if they do not observe these
conditions within six months after the notice is mailed, their rights to the
plot cease and revert to the owner. Ms. Lee chose annual maintenance of the
plot, for a fee of $31 and she paid the first year's fee in 2000. However, she
never made any other payments, and in 2004, the cemetery's invoices were
returned with a post office indication "attempted, not known." The dog's body
was exhumed and cremated, and its ashes were spread over the cemetery. Ms. Lee
sued the cemetery, claiming her dog was wrongfully cremated.
The New York court reviewed state law
regulating the conduct of pet cemeteries and pet crematoriums, which imposes a
special responsibility on cemetery owners to "prevent causing grieving pet
owners from experiencing further any emotional pain or financial manipulation."
The court decided that Ms. Lee and the cemetery had a contract for services,
which is required to contain all the material terms of the agreement. Even
though Ms. Lee claimed she never elected annual payments, she had signed a
document which described the payment options, and she had previously made a
single payment described as "annual general care."
Ms. Lee also claimed she never received
the cemetery's annual invoices after moving from New York to New
Jersey, but her agreement specifically stated that the cemetery is not
responsible if mail doesn't reach the plot-holder. Her claim against
the pet cemetery was unsuccessful, with the court awarding the pet cemetery
damages of $145 for the unpaid annual fees for 2001-2004.
Lexis.com subscribers can view the enhanced version of Man-Hung
Lee v. Hartsdale Canine Cemetery, 28 Misc. 3d 234, 899 NYS2d 823, 2010 NY Slip.
Op. 20151 (N.Y. City Ct., April 26, 2010)
Non-subscribers can access State Case Law, Codes, Full Jurisdictional
Shepard's® Citations and more using lexisOne's Research Value Package.
Dog Breeding on Residential
Property Was A Business, Not A Hobby.
Iza Ackerman, a breeder of German
Shepherd show dogs, owned a 4-acre residential property in Howell Township, New
Jersey. She got a permit to build a storage building on the property,
representing it would be for "personal storage." However, she converted the
storage building into a dog kennel for her show dogs and built dog runs outside
the building. She bred 10-12 dogs a year and sold the ones she did not want to
keep for show purposes. She characterized her activities as a hobby, because
dog kennels are not allowed in the township's agricultural rural estate (ARE-3)
zone. The township conducted a code enforcement inspection and cited Ackerman
for operating a dog kennel.
Ms. Ackerman defended herself by
explaining that she feeds and cares for her dogs herself, and does not
advertise with a sign on the property. She stated she does not earn a profit
from her dog breeding, and because she has a separate full-time business, she
said the dog breeding was not a business, but a hobby. The township argued that
whether or not she earned a profit from breeding was not determinative of
whether it was a business, because many businesses don't earn a profit for
years at a time. Even if not profitable, the township argued that Ackerman's
objectives were pecuniary, and she earned $10,000-12,000 per year selling dogs.
The important factors in distinguishing a business from a hobby, from the
township's perspective, are whether her activities were systematic and intense.
In addition, the township said she had fitted out her property with all the
accoutrements of a trade.
Certain home office occupations are
permitted by the zoning code when they are incidental to the residential use of
the property and compatible with residential uses, but the Howell Township
zoning rules specifically prohibit boarding and breeding kennels for dogs and
cats as one of these incidental uses. A property complete with a housing
facility for dogs, individual fenced cages for them, extensive fenced dog runs,
and electricity, water and drainage, is not an "incidental" use, according to
The township won this case. The breeding
and sale of dogs, and the boarding of up to 12-14 dogs at a time constitute a
business, not a hobby.
Lexis.com subscribers can view the enhanced version of Ackerman
v. Howell Twp. Zoning Bd. of Adjustment, 2010 N.J. Super. Unpub. LEXIS 1377
(App.Div. June 23, 2010)