Real Estate Cases by Andrea Lee Negroni, Esq. Week of October 24, 2011

Real Estate Cases by Andrea Lee Negroni, Esq. Week of October 24, 2011

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 the Week of October 24, 2011

Donʼt Improve an Encroaching Driveway Without the Neighborʼs Consent.  Neither the Digiovannis nor the Rodrigueses were aware of the fact that the asphalt driveway at 26 Forest Avenue encroached a little more than two feet onto the property next door at 22 Forest Avenue. The prior owners of both properties had dealt with the encroachment by separating the properties with a line of azalea bushes and treating the foliage line as the boundary line.  However, the Digiovannis repaved their driveway with a curbstone of Belgian block, which increased the encroachment to about three feet.

Rodrigues removed the asphalt from their side of the property line, so the Digiovannis filed suit, claiming they had acquired title to the encroaching area by adverse possession or were entitled to  an easement by prescription. At a bench trial, the judge ruled the encroachment was minor and that the Digiovannis would suffer hardship if their neighbors built a fence at the property line. He ordered the Digiovannis to pay $3,500 to Rodrigues for an easement of ingress and egress.

The New Jersey appellate court reversed this decision, on the principle that establishing interests in land is governed by real property law, not by innocent and mistaken beliefs about title or non-substantial hardships. Although the Digiovannis had improved their driveway by repaving it and adding curbstone, they did so after they became aware of the encroachment. Their investment in a newly paved driveway was a result of their culpable negligence, as their title report clearly showed the encroaching driveway when they bought the property.

The court rejected application of the doctrine of relative hardship. This doctrine precludes an injunction for trespass where the benefit to the plaintiffs would be grossly less than the expense to the defendants in carrying out the injunction. Put another way, the benefit to Rodrigues (the right to use that part of his property onto which the Digiovannisʼ driveway encroached) would have to be minimal compared to the expense to the Digiovannis of removing the encroachment. In this case, the appeals court concluded the Digiovannis would not suffer significant hardship if their trespass on their neighborsʼ property was enjoined.

The lesson here is that all property purchasers should not only look carefully at their title reports and surveys, but should not commit to expenses for improving existing encroaching structures or driveways without obtaining the easement first!

Digiovanni v. Rodrigues, No. A-4631-08T1, 2010 N.J. Super. Unpub. LEXIS 2952, December 10, 2010.  [enhanced version available to subscribers.] subscribers can explore/search Real Estate Law resources on or access any of these Mathew Bender Real Estate Law publications:

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