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

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

A broken fence around a tree well on a public sidewalk does not make the property owner liable for a pedestrian's fall on the sidewalk

Mildred Fazzolari was walking by a two-family home in Brooklyn when her pants got caught on part of a broken fence surrounding a tree well on the public sidewalk in front of the home. The snag in her pants caused her to trip on a protruding brick which was part of the brickwork around the fence. She sued the owners of the two-family home. The owners defended by saying the brickwork and fence around the tree well were in place when they bought the property 16 years earlier, that they'd never noticed a bit of fencing sticking out, and that they'd never repaired or replaced the fence, the brickwork or the tree well.

The homeowners replaced the fence and the brickwork after Mildred's accident, and also replaced their sidewalks. The New York appeals courts have stated the rule for liability of abutting homeowners as follows: "Generally, liability for injuries ... as a result of negligent maintenance of or the existence of dangerous or defective conditions to public sidewalks is placed on the municipality and not the abutting landowner.  There are, however, circumstances under which this general rule is inapplicable ... Liability to abutting landowners will generally be imposed where the sidewalk was constructed in a special manner for the benefit of the abutting landowner ... where the abutting landowner affirmatively caused the defect, ... where the abutting landowner negligently constructed or repaired the sidewalk, ... and where a local ordinance or statute specifically charges an abutting landowner with a duty to maintain and repair the sidewalks..."

None of these exceptions applied to this case. Since the property owners had neither installed nor maintained the tree well area, they were merely abutting landowners and had no liability to the passing pedestrian. The fact they repaired their sidewalks, the brickwork and the fence after the accident had no bearing on their liability.

Fazzolari v Tzavelis, 29 Misc. 3d 1213A; 918 N.Y.S.2d 397; 2010 N.Y. Misc. LEXIS 5126; (October 20, 2010) [enhanced version available to lexis.com subscribers].

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