Real Cases in Real Estate by Andrea Lee Negroni, Esq. and Pavitra Bacon, Esq. – Oct. 4th Update

Real Cases in Real Estate by Andrea Lee Negroni, Esq. and Pavitra Bacon, Esq. – Oct. 4th Update

REAL CASES IN REAL ESTATE

By Andrea Lee Negroni and Pavitra Bacon

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 Oct. 4th, 2010

Iowa Child Pornographer's 19-Acre Property Forfeited.

In 2007, Larry Richard Hull used an internet connection in his Iowa home to transmit child pornography.  He was convicted of distribution of child pornography, and ordered to forfeit approximately 19 acres of real property in rural Iowa.  Hull appealed the forfeiture order, on three grounds: (1) there was no proof that the used the real property to commit the crimes; (2) the acreage outside his house was not used in the commission of crimes; and (3) the forfeiture was a grossly disproportionate penalty. 

Laws that allow the seizure of property on suspicion of certain criminal activity have existed for centuries.  They are most commonly used to seize property that is purchased, used, or intended to be used for drug trafficking.  Using lessons learned from the exercise of those laws, the appellate court decided that the forfeiture of Hull's property was proper. The court felt it was clear that Hull used his property to commit the child pornography offenses. Specifically, "[h]e set up a computer in a room in his house, connected to the Internet, and distributed child pornography from there . . . The house enabled Hull to establish a hardwired connection to the Internet, which allowed him to distribute the contraband.  It also provided a secure place to store the images that he later distributed."  In fact, use of his home computer rather than a public computer made it easier for him to keep his criminal activities secret.

In addressing the disproportionality defense, the Court noted the value of Hull's equity in the property did not exceed the $200,000 fine allowed under the sentencing guidelines, and was therefore "presumptively not excessive." In light of the serious damage done by his offenses, the forfeiture was not excessive punishment.   

Lexis.com subscribers can view the enhanced version of United States v. Hull, 606 F.3d 524 (8th Cir. 2010)

Non-subscribers can use lexisOne's Free Case Law search to view the free, un-enhanced version of United States v. Hull, 606 F.3d 524 (8th Cir. 2010)

 

Tenant Cannot be Evicted from Apartment Based on Guest's Single Hidden Marijuana Cigarette

Ashley Clinard leased an apartment in Hendersonville, Tennessee.  While searching her apartment, police found a joint of marijuana belonging her guest.  Her lease allowed termination by the landlord if she or her invitees intentionally committed a violent act or if their behavior was or threatened to be a danger to the health, safety, welfare or property of others. Under the lease, a single instance of "drug related criminal activity" by a member of her household or a guest under her control was cause for summary eviction.

The Court held that while strict liability can be imposed on tenants and household members for drug related activity, eviction would not be appropriate "if the tenant had no knowledge of the criminal activities of his/her guests or had taken reasonable steps" to prevent the activity. Ashley Clinard did not know about her friend's marijuana and she had specifically prohibited drugs in her apartment.  Furthermore, there was no evidence that Clinard's guest had used drugs in over a year or that Clinard had any reason to believe he was in possession of drugs.  Moreover, the Court found that the guest's placing a single marijuana cigarette in a bag underneath a cushion did not constitute either an intentional 'violent act' or a 'real and present danger' to others, so summary eviction was inappropriate. 

Lexis.com subscribers can view the enhanced version of Wessington House Apts. v. Clinard, 2001 Tenn. App. LEXIS 420 (Tenn. App. June 5, 2001)

Non-subscribers can use lexisOne's Free Case Law search to view the free, un-enhanced version of Wessington House Apts. v. Clinard, 2001 Tenn. App. LEXIS 420 (Tenn. App. June 5, 2001)