Real Cases in Real Estate by Andrea Lee Negroni, Esq. – Nov. 29th Update

Real Cases in Real Estate by Andrea Lee Negroni, Esq. – Nov. 29th Update

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 Nov. 29th, 2010

Landlord Not Liable for Lead-Based Paint Injury Where Elevated Lead Levels Could Have Come From the Environment

Adrienne Morris sued her landlord after her baby son was found to have elevated lead levels in his blood. She claimed the baby's condition resulted from exposure to lead paint in her apartment.

The landlord had the apartment repainted before Morris moved in and Morris did not see any chipped or cracked paint when she moved in with her 4-month old son.  At 12 months, the baby's medical evaluation showed him to have appropriate growth and development, but his venous lead levels triggered an inspection of the apartment where he lived.

The inspection showed toxic levels of lead in paint. The landlord presented an abatement and remediation plan and the city agreed he could do the work after Morris vacated the apartment. The repairs were completed about 18 months after the baby's elevated lead levels were found. Two further tests showed normal lead levels in the baby so he was discharged from the Lead Program at the children's hospital.

Adrienne sued her landlord for negligence and nuisance, but she lost. The court noted that at occupancy, there was no chipped paint, there was no evidence that the landlord knew about lead-based paint when Morris moved in, and that once he received notice of it, he took prompt steps to fix it. Moreover, Morris did not prove any injuries to her son, whose later blood tests were normal and whose medical reports showed him to have "appropriate growth and development." The court dismissed the nuisance claims, because "negligence, not nuisance, provides the sole remedy for personal injuries sustained by a tenant due to defective conditions appurtenant to the demised premises." Ultimately, said the court, the  baby's elevated lead levels on one occasion could have been the result of lead in the environment, not lead-based paint in the apartment.

Lexis.com subscribers can view the enhanced version of Morris v. Ingram, 2010 Conn. Super. LEXIS 829 (Conn. Super. Ct. Apr. 6, 2010)

Non-subscribers can use lexisOne's Free Case Law search to view the free, un-enhanced version of Morris v. Ingram, 2010 Conn. Super. LEXIS 829 (Conn. Super. Ct. Apr. 6, 2010)

 

Series of Cascading Errors Justifies Re-Opening a Confirmed Connecticut Foreclosure Sale.

A Connecticut judge re-opened and set aside a confirmed foreclosure sale after title vested in the foreclosure buyer despite the fact the motion to re-open was made more than 120 days after the entry of judgment.

The buyer at the foreclosure sale relied on erroneous information about the status of title which was provided by his own attorney, the attorney for a foreclosing second mortgagee, and the Connecticut court. He paid $216,000 for the property, believing that the foreclosing lender held a first mortgage. This belief was based on a review of court records concerning the foreclosure and on statements of his own and the second mortgagee's counsel. Unfortunately, all these statements and records were wrong.

The foreclosing mortgagee held a second mortgage for $82,615 and reported in its foreclosure worksheet the existence of a first mortgage for $295,000. Taken together, the two mortgages eliminated any equity in the property whose market value was $305,000. However, when the order of strict foreclosure was entered, the second mortgagee was recognized as the first mortgage holder and the true first mortgage holder was overlooked. Excess proceeds of $91,854 were  paid in error to the second mortgagee following the sale. When the first mortgagee foreclosed its lien, the foreclosure buyer found he had paid $216,000 for property he no longer owned.

The court acknowledged its own errors in the fiasco, ultimately relying on equitable principles to set aside the sale, noting that "common sense does not take flight when one enters a courtroom." Although the legal requirements for setting aside a foreclosure sale were not present in this case, "the court concludes that correcting a concrete, identifiable and specific miscarriage of justice weighs more heavily than protecting against the unquantifiable concern that in subsequent cases parties may seek to utilize this decision as a basis for relieving themselves of self-induced errors or failures of judgment."

Lexis.com subscribers can view the enhanced version of Citibank, N.A. v. Lindland, 2010 Conn. Super. LEXIS 2022 (Conn. Super. Ct. Aug. 5, 2010)

Non-subscribers can use lexisOne's Free Case Law search to view the free, un-enhanced version of Citibank, N.A. v. Lindland, 2010 Conn. Super. LEXIS 2022 (Conn. Super. Ct. Aug. 5, 2010)