Real Cases in Real Estate By Andrea Lee Negroni, Esq. – September 26th, 2012 Update

Real Cases in Real Estate By Andrea Lee Negroni, Esq. – September 26th, 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 September 26th, 2012

Vindication of Rights of Owner of Residential Property Abutting an Alley.

John Heuer owned three residential parcels in Cape Girardeau, Missouri abutting a public alley. Behind his rear yards, across from the alley, was a commercial parcel. JJP Investments developed a convenience store on the commercial lot. Wanting to use the alley as a drive-through for customers, JJP received permission to pave the alley and build a fence. Heuer didn't object to the paving but had no notice of the fence-building until the fence was complete. The fence was built on his side of the alley. Heuer claimed the fence restricted his access to the alley and that on occasion, he couldn't access the alley from his lots because the fence gates were either tied shut or blocked by snow shoveled against the fence.

The case considers whether the City of Cape Girardeau correctly applied its buffer ordinance, which applies when commercial property is developed adjacent to residential property. The buffer ordinance required a fence on the lot line between the commercial lot and the residential lot, but application of the ordinance was confused by the fact there was no lot line between Heuer and JJP, whose properties were separated by the public alley.

Several factors worked against JJP, the commercial owner. First, he used the alley for a drive up to a business, and admitted that business would be hindered without use of the alley. Second, JJP's lot didn't comply with a 25-foot rear yard requirement and there was no evidence that a variance was sought or obtained. Conversely, several factors worked to Heuer's advantage, including the fact that his prior access to his properties from the alley was impeded by the new fence. This disadvantage was magnified by Heuer's occasional inability to reach the alley through the fence when fence doors were either tied shut or blocked by snow plowed against the fence.

The Eastern District Court of Appeals Missouri concluded that the formerly public alleyway was converted to a business drive-through that was only "incidentally" open to the public. This supported Heuer's claim for inverse condemnation, a legal principle which precludes taking of private property without just compensation. The plaintiff in an inverse condemnation case can recover compensation even if his property has not been formally taken by a governmental agency.

Here, the city owned the public alley separating JJP and Heuer, but Heuer was found to have rights in the alley not shared by the general public. His right of ingress and egress to his lots was hindered by the fence. The legal remedy of "ejectment" was allowed, meaning the fence had to be removed. "Ejectment is a possessory remedy by an owner to recover premises unlawfully possessed by another."

HEUER v. CITY OF CAPE GIRARDEAU, COURT OF APPEALS OF MISSOURI, EASTERN DISTRICT, 2012 Mo. App. LEXIS 730 (May 29, 2012) [enhanced version available to lexis.com subscribers].

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Comments

Anonymous
Anonymous
  • 10-04-2012

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