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
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.
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 February 11th, 2013
Outdoor Wood-Burning Hydronic
Heater (OWB) is not a Private Nuisance and does not create a Continuing
Trespass on Neighboring Property in a Rural Town in Rhode Island.
neighbors' dispute over emissions from an outdoor wood-burning hydronic heater
(OWB) is an interesting lesson in property law and in science. An OWB burns
wood and directs the heat into an indoor heating system. Steam and smoke
generated by the burning wood are released into the air through a metal
smokestack. The type of wood burned makes a difference in the smell of the
smoke released. The Pezzas installed an OWB in their yard, adjoining the
Charettes' yard, in 2008. It was one of many OWBs in the rural town of Foster,
Rhode Island. When it was installed, Foster had no regulations on the
installation or operation of OWBs.
The Charettes sued the Pezzas to
prevent the Pezzas from using their OWB, which the Charettes claimed released
disgusting odors, prevented them from using their yard, sickened their
children, embarrassed them so much they did not have guests at home, and made
them "prisoners" in their house. They even said the emissions endangered their
dog. Mr. Charette referred to OWBs as a form of "terrorism" and went on a
public campaign against them.
The Charettes claimed private
nuisance, continuing trespass and negligence. They took videos of the smoke in
their yard and presented these at trial, along with testimony from other
neighbors and an expert. The Pezzas hired their own expert. Both experts agreed
that the health effects of smoke are based on the concentration of particulates
in the emissions, not the quantity of the emissions. The court found the
Pezzas' expert more credible than the Charettes' expert. Moreover, the court
thought the Charettes' didn't prove the haziness on their land came from smoke
generated at the Pezzas. The hazy density in the photos could have been caused
by sun glare, darkness or overcast conditions.
The court reviewed Rhode Island's
of private nuisance. A "private nuisance arises from the unreasonable
use of one's property that materially interferes with a neighbor's physical
comfort or the neighbor's use of his real estate." The test for private
nuisance is whether a person of ordinary habits and sensibilities would be
negatively affected. Even if the activity is legal, a court can still grant relief
from a private nuisance. Mere annoyance is not enough to constitute private
nuisance. Here, the court was not persuaded the wood-burning appliance was a
private nuisance; the Charettes had so many varied complaints about the OWB and
the smoke that they were not considered persons of ordinary habits and
sensibilities. The court found their testimony and claims exaggerated.
In rejecting the claim of continuing
trespass, the court cited Rhode Island law, defining it as "an
unprivileged remaining on land in another's possession." The deposit of
dangerous particulates on another's property could theoretically be continuing
trespass, but the Charettes' photo evidence didn't prove that the haziness and
denseness over their land were caused by smoke or emissions.
Finally, the court considered liability
for negligence, which is distinguishable from liability for nuisance. A
possessor of land owes persons outside his premises a duty to use reasonable
care to prevent injury as a result of activities on the premises. Here, the
court found no negligence by the Pezzas because they were reasonable in
placement and operation of their OWB.
Charette v. Pezza,
2010 R.I. Super. LEXIS 126 (August 12, 2010) [enhanced version available to lexis.com subscribers].
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