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.
Real Cases in Real Estate will learn and be entertained by lawsuits
involving nuisance, trespass, zoning violations, deed restrictions, title
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brokers and homebuyers, and zoning administrators and developers.
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
follow real estate law professionally or as a hobby, you'll find something new
and useful every week in Real Cases in Real Estate.
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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