Real Cases in Real Estate By Andrea Lee Negroni, Esq. – March 20th, 2013 Update

Real Cases in Real Estate By Andrea Lee Negroni, Esq. – March 20th, 2013 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 20th, 2013

Dog Rearing and Selling and Commercial Log Storage on Residential Property are a Public Nuisance.

Philip Maksymonko owned a 6.7 acre lot on which his home was located and an adjacent 6.7 acre unimproved lot in the Village of Barrington Hills, Illinois, a residential district. He lived there with his girlfriend, who kept dogs, which she claimed was her hobby. She also advertised and sold dogs. Philip permitted a logging company to dump logs on his vacant lot with the agreement he could keep some logs for heating his home. After complaints from the neighbors about the noise and smell of the dogs, the growing size of the log piles and noisy logging activities, Philip was found to have violated the village code and his and his girlfriend's activities were found to be a public nuisance.

Philip argued that the village ordinance did not forbid storing wood on private property and disputed that his wood pile caused annoyance or discomfort to the public. Several village inspectors testified that they did not smell bad dog odors on their inspection visits. Philip's girlfriend claimed dogs were her hobby, not a business, and that she did not make money from her dog raising and selling. The neighbors complained that the dogs barked all day and night and even the inspectors counted 77 dogs on the property at one time.

In evaluating the impact of the dogs, the court looked to the definition of a "home occupation," which is allowed in Village of Barrington residential areas.  A home occupation is an occupation that does not give an outward appearance or manifest characteristics of a business that infringes on the neighbors or character of a residential district. Based on the neighbors' complaints about the noise of the dogs and the putrid smell of dog feces, the court concluded that the maintenance and sale of the dogs constituted a public nuisance.  The same result applied to the wood dumping and wood-cutting activities. These activities were noisy, the resulting log piles were as high as a two-story building, and the wood that was cut on Philip's property were ultimately transported to other locations. These activities were found to constitute the unlawful public logging on residential property.

The case illustrates public nuisance. Under the Illinois Municipal Code, a municipality can "define, prevent, and abate nuisances." With this broad authority, a municipality can identify what constitutes nuisance. Even where there is a difference of opinion about what is a nuisance, in questionable cases, the municipality's decision controls unless it is clearly erroneous. Illinois courts recognize that "common law public nuisance *** elude[s] precise definition," and requires a fact-based determination.

Public nuisance can be said to encompass "wrongs that arise from the unreasonable, unwarrantable or unlawful use by a person of his own property, ... or from his own improper, indecent or unlawful personal conduct, working an obstruction of, or injury to, a right of another or of the public." The principle of a civilized community requires every person to "yield a portion of his right of absolute dominion" over his property to prevent injury to the rights of others.

Village of Barrington Hills v. Maksymonko, 2012 Ill. App. Unpub. LEXIS 1575.

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