REAL CASES IN REAL ESTATE
By Andrea Lee Negroni and Kendra Kinnaird
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 Sept 6th, 2010
Trespass, Committed Insultingly, Justifies Punitive Damages for Mental
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)
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)
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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)