Real Cases in Real Estate By Andrea Lee Negroni, Esq. – February 16th, 2012 Update

Real Cases in Real Estate By Andrea Lee Negroni, Esq. – February 16th, 2012 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 the Week of February 16th, 2012

Owner may keep livestock on residential property used as pasture before zoning adopted

In 2007, Scott Kramer inherited property in Clear Lake, Iowa from his aunt. His aunt had acquired the property long before there were any zoning ordinances affecting it and she raised livestock on the land. A residential zoning ordinance was adopted in 1955 but Kramer's aunt continued to raise livestock despite the ordinance. After the aunt's death, Kramer himself continued to keep livestock, including horses, on the land. The City of Clear Lake sued Kramer six weeks after his aunt's death, ordering him to remove the animals from the property within 60 days. The City said it gave permission for his aunt to keep livestock on her property, but that permission did not apply to Kramer.

When Kramer declined to remove the animals, he was cited for keeping livestock unlawfully in violation of the City's zoning code. Kramer defense was one of "prior nonconforming use." He was found guilty of the violation and appealed to the district court, which affirmed the conviction.

A nonconforming use "is one that existed and was lawful when the [zoning] restriction became effective and which has continued to exist since that time." The zoning ordinance that the City claimed Kramer violated expressly allowed nonconforming uses. Therefore, if the keeping of livestock was lawful before the ordinance, then it was grandfathered in. As to the argument that the nonconforming use was available only to the prior landowner, Kramer's aunt, the Iowa appeals court noted that a nonconforming use is not personal to the landowner but attaches to the land itself.

Then the City argued that even if a nonconforming use was established, it could use its police power to regulate land use to protect public health, safety or welfare. Here, the court found that the livestock restrictions were not in furtherance of public health, safety or welfare; rather, they were essentially land use restrictions. Kramer's conviction was reversed.

City of Clear Lake v. Kramer, 2010 Iowa App. LEXIS 865 (August 11, 2010) [enhanced version available to subscribers].

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