Real Cases in Real Estate by Andrea Lee Negroni, Esq. and Kendra Kinnaird, Esq. – Sept. 6th Update

Real Cases in Real Estate by Andrea Lee Negroni, Esq. and Kendra Kinnaird, Esq. – Sept. 6th Update

REAL CASES IN REAL ESTATE

By Andrea Lee Negroni and Kendra Kinnaird

BuckleySandler LLP

alnegroni@buckleysandler.com

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 Sept 6th, 2010

 

A Trespass, Committed Insultingly, Justifies Punitive Damages for Mental Suffering.

What began as a garden variety dispute between neighbors escalated into a battle involving privacy fences, security cameras, shovelfuls of dirt being tossed across property lines, and ultimately, a lawsuit. Cecelia Lyles was bothered that her neighbor's boyfriend, Dudley, brought home junk cars and worked on them in the back yard. This ruined her enjoyment of her own back yard so much that she installed privacy fences and security cameras. Dudley threw debris onto her property and entered the space between the privacy fences, once carrying a bottle of what looked like Roundup weed killer. He then built a driveway that Lyles said caused her property to flood. Lyles eventually sued Dudley for trespass by disturbing of possession. Dudley countersued for invasion of privacy, assault and trespass.

At trial, Lyles prevailed on most of her claims and the jury awarded damages to her. The Alabama court noted that trespass can be committed even when the trespasser does not lay a foot on the land - a trespass can occur if someone throws objects or water onto another's land. Lyles also got punitive damages, because the trespass by Dudley was rude and insulting. In the language of the court, "because there was evidence to support the imposition of punitive damages, i.e., 'insult and contumely,' Lyles [was] also entitled to damages for mental suffering caused by any trespass." Since few lawyers know or get an opportunity to use the word "contumely," we'll let Black's Law Dictionary define it: insulting language or treatment; scornful rudeness.

Even though Lyles had only nominal damages from the trespass (about $185), she was entitled to punitive damages based on her neighbor's boyfriend's behavior. Contumely sounds like such a nice word, but Dudley now knows better.

Lexis.com subscribers can view the enhanced version of Downs v. Lyles, 2009 Ala. Civ. App. LEXIS 512 (Ala. Civ. App. Oct. 9, 2009)

Non-subscribers can use lexisOne's Free Case Law search to view the free, un-enhanced version of Downs v. Lyles, 2009 Ala. Civ. App. LEXIS 512 (Ala. Civ. App. Oct. 9, 2009) 

 

Restriction in Chain of Title Prevented a Fast Food Restaurant From Opening Next Door to Another Fast Food Restaurant.

Chick-Fil-A, Inc. operated a fried chicken shop in a Florida strip mall when Panda Express bought the adjacent property and began to build a Chinese restaurant. Chick-Fil-A sued Panda Express for violating a restrictive covenant contained in the property title. The restriction prohibited Panda Express from building on the property a fast food restaurant specializing in chicken. The court enjoined Panda Express from operating its restaurant on that site. Under Florida law, property owners can impose covenants that "run with the land" even if they restrict use of property.

The restrictive covenant prohibited the adjacent property from being used for a "quick service restaurant deriving 25% or more of its sales from the sale of chicken." Panda Express knew about the covenant when it bought the property. Panda Express's menu included several items in which the primary ingredient is chicken.

The rule of the case is that "[w]hile covenants that run with the land must be strictly construed in favor of the free and unrestricted use of real property, a restriction which sufficiently evidences the intent of the parties and which is unambiguous will be enforced according to its terms." Moreover, restrictive covenants are common in strip mall developments, where they help attract and ensure the financial success of the business tenants and owners.

Lexis.com subscribers can view the enhanced version of Chick-Fil-A, Inc. v. Cft Dev., LLC, 652 F. Supp. 2d 1252 (M.D. Fla. 2009), affd., Chick-fil-A, Inc. v. CFT Dev., LLC, 370 Fed. Appx. 55 (11th Cir. Fla. 2010)

Non-subscribers can access Federal Case Law, Codes, Shepard's® Citations, Administrative, Legislative, and Secondary Sources using lexisOne's Research Value Package

Non-subscribers can use lexisOne's Free Case Law search to view the free, un-enhanced version of Chick-fil-A, Inc. v. CFT Dev., LLC, 370 Fed. Appx. 55 (11th Cir. Fla. 2010)