Real Cases in Real Estate By Andrea Lee Negroni, Esq. – March 30th, 2012 Update

Real Cases in Real Estate By Andrea Lee Negroni, Esq. – March 30th, 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 30th, 2012

When a lease doesn't provide for wear and tear, the tenant assumes a higher duty of care than is ordinarily assumed by a lessee. 

A landlord sued his tenant and the tenant's wife for damage to the property caused by the tenants' animals. Warton Duke rented a house and 25 acres in Greeneville, Tennessee from John Hensley. Duke's lease required him to maintain the home and property, including the fences, barn and grounds. Duke acknowledged in the lease that he had two dogs, and agreed to repair or replace the carpet and floor coverings if they were damaged by the dogs. Duke's lease required him to return the property to the landlord in the same condition that it was let to him.

Dr. Sharon Duke, Warton's wife, did not sign the lease, but testimony in the case indicated she had an oral agreement to rent the house for $1,500 a month.

At trial, the court noted that Duke's obligations under his lease were higher than an ordinary tenant's because he agreed to return the property in the same condition he got it - which meant there was no exception for ordinary wear and tear. Photos of the property showed the pasture and barn were lush with grass before Duke's tenancy and bare of grass in many spots afterwards. After reviewing specific items of damage, the trial court allowed the landlord damages of $16,496.

Sharon Duke claimed the lease was not enforceable against her because she didn't sign it, learning of it only after her husband signed it. The court considered whether Warton Duke could be considered the agent of Sharon Duke, acknowledging the theory that one spouse can act for another. However, in Tennessee, the authority to act as someone's agent cannot be implied based only on the existence of a marital relationship. While Sharon Duke hadn't signed the lease, the court held that she ratified it through her conduct, because after she became aware of its terms, she never disaffirmed any acts of her husband or discussed the lease with the landlord. In fact, Sharon Duke continued to live in the house and keep dogs and up to 14 horses on the property after she learning of the written lease. Moreover, when the Dukes attempted to get a refund of their security deposit and learned the landlord was unhappy with the condition of the property at its return, Sharon Duke did not respond to the landlord's offer to discuss the damage.

The appeals court affirmed the decision of the trial court holding both Dukes, husband and wife, liable to the landlord for property damage. By living in the leased premises and failing to disavow the lease or discuss the damage with the landlord after moving out, Sharon Dukes was held to have affirmed the lease and as a result, shared liability with her husband for breach of the lease.

HENSLEY v. DUKE, 2010 Tenn. App. LEXIS 183, Tenn. App. (March 10, 2010) [enhanced version available to subscribers].

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  • 04-26-2012

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