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    Property Law Legal Research Blog

    Barking Dogs Results in Competing Nuisance Claims Between Neighbors

    Posted by Alistair D. Edwards on Fri, Aug 2, 2019 @ 11:08 AM

    Alistair Edwards—Senior Attorney, National Legal Research Group

                Dogs barking incessantly can result in a nuisance lawsuit between neighbors. For example, in Allen v. Powers, 64 Misc. 3d 171, 97 N.Y.S.3d 837 (City Ct. 2019), the plaintiff sued her neighbors claiming that their two German Shepherds barked incessantly and the dogs' constant barking at all hours interfered with the plaintiff’s right to quiet use and enjoyment of her property. This was a classic private nuisance claim.

                However, the interesting twist in that case was that the defendant dog owners counterclaimed, contending that the plaintiff had repeatedly called the municipal authorities with specious complaints. As alleged in the counterclaim, the plaintiff’s efforts were an attempt to make the defendants move or have their landlord evict them.

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    Topics: property law, Alistair D. Edwards, nuisance claim, barking dogs, counterclaim for harassment

    Do Short-Term Vacation Rentals Violate Covenant Prohibiting Commercial Activity or Use?

    Posted by Alistair D. Edwards on Tue, Oct 16, 2018 @ 11:10 AM

    Alistair Edwards—Senior Attorney, National Legal Research Group

                Short-term vacation rentals have become increasingly popular and easier to obtain with the advent of websites such as Airbnb. Now, an owner can simply use such a website to attract potential renters and lease the property to vacationers on a very short-term basis. Some of these rentals can be as short as a one- or two-day rental. However, owners of residential properties that are subject to restrictive covenants are often prohibited from using their properties for commercial activities, uses, or purposes. Does this include renting the property to vacationers on a short-term basis?

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    Topics: property law, short-term vacation rental, commercial activity use, restrictive covenant

    LANDLORD TENANT: Can a Tenant Use the Exclusionary Rule When Fighting an Eviction?

    Posted by Steven G. Friedman on Tue, Jul 17, 2018 @ 09:07 AM

    Steven G. FriedmanCSenior Attorney, National Legal Research Group

     

    The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures of their persons or property. See U.S. Const., amend. IV. The exclusionary rule prohibits the use of evidence obtained in violation of the Fourth Amendment. See United States v. Calandra, 414 U.S. 338, 347 (1974). However, the exclusionary rule does not apply to all proceedings or against all persons and is generally restricted to areas in which the goal of deterring unlawful police conduct is "most efficaciously served." Id. at 348. In determining whether the exclusionary rule applies, the U.S. Supreme Court has developed a balancing test whereby courts weigh the likely social benefits of excluding unlawfully obtained evidence against the possible costs. See INS v. Lopez‑Mendoza, 468 U.S. 1032, 1041 (1984).

     

    Typically, the exclusionary rule has been confined to cases in which the state seeks to use illegally seized evidence to criminally prosecute an individual who experienced an unlawful search. See Calandra, 414 U.S. at 347; e.g., id. at 354. The exclusionary rule is occasionally applied outside of a pure criminal proceeding, however. For instance, the Minnesota Supreme Court has held that the exclusionary rule applies to a civil forfeiture action, see Garcia‑Mendoza v. 2003 Chevy Tahoe, 852 N.W.2d 659, 667 (Minn. 2014), as well as a civil implied‑consent proceeding, see Ascher v. Comm'r of Pub. Safety, 527 N.W.2d 122, 125 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995); see also State v. Lemmer, 736 N.W.2d 650, 654 (Minn. 2007) (revocation of a driver's license after a DWI arrest).

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    Topics: property, exclusionary rule, eviction, civil forfeiture

    Landlords' Liability to Guest of Tenant for Dog Bite Injury

    Posted by D. Bradley Pettit on Wed, May 9, 2018 @ 10:05 AM

    Brad Pettit, Senior Attorney, National Legal Research Group

                A decision by the Supreme Court of Idaho illustrates the difficulties that a guest of a residential tenant may face when trying to hold the tenant's landlord liable for injuries sustained by the guest when the guest was bitten by the tenant's dog. See Bright v. Maznik, 162 Idaho 311, 396 P.3d 1193 (2017). In Bright, a guest of the tenants advanced several theories of liability in her suit against the tenants' landlords: negligence per se under Idaho's vicious dog statute, breach of duty to protect the guest from an animal known to have vicious tendencies, common law negligence, voluntary assumption of duty, and premises liability. None of these claims were successful, primarily because the plaintiff failed to make the requisite factual showings that the landlords either "knew" about or "harbored" a vicious animal on the premises.

                For example, the Bright court found that the landlords could not be charged with "harboring" the tenants' dog on the property, as required under the vicious dog statute, regardless of whether the dog was actually "vicious." Id., 396 P.3d at 1197. The Bright court reasoned that since the term "harbor," as it is used in the vicious dog statute, "contemplates protecting an animal, or undertaking to control its actions," the landlords could not be charged with negligence per se under the statute because there was no evidence in the record that the landlords "received clandestinely and concealed the [tenants'] dog" or "had an animal in [their] keeping." Id. (citations omitted).

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    Topics: property, landlord liability, dog bite injury, guest of tenant

    Construction of Structure Blocking a Neighbor’s View Not a Nuisance

    Posted by Alistair D. Edwards on Fri, Feb 16, 2018 @ 16:02 PM

         The general rule is that a landowner has no common law right to an unobstructed view over an adjoining property. Thus, if a neighbor erects a structure on his property that blocks another neighbor’s view from his property, this likely does not constitute an actionable nuisance or give the neighbor any other type of claim. Absent an express easement or covenant, this right to an unobstructed view generally does not exist. "In the absence of statute, generally, a landowner may, by building on his or her own land, deprive the adjoining owner of the light, air, and view of which the owner was the recipient before the structure was erected without inflicting a legal injury by such obstruction." 2 C.J.S. Adjoining Landowners § 28 (Westlaw database updated December 2017). 

          For example, in Ceynar v. Barth, 2017 ND 286, 904 N.W.2d 469, the North Dakota Supreme Court recently considered a nuisance action brought by a homeowner against his neighbor (and the homeowner’s association) after the neighbor constructed a pool house on his property which obstructed the neighbor’s view. The pool house blocked the homeowner’s view of a golf course and very likely reduced the market value of the home. In affirming the trial court’s grant of summary judgment to the defendant neighbor, the court relied mainly on California precedent and stated that "[j]ust as traditional American property law fails to protect access to light over neighboring land, in the absence of an express easement or covenant, advantageous views are unprotected." Id. ¶ 26, 904 N.W.2d at 476. The court further explained:  "Because the Ceynars [plaintiffs] have no cognizable right to an unobstructed view from their property, Barth's [defendant] construction of the pool house as a matter of law did not unreasonably interfere with the Ceynars' use and enjoyment of their property." Id. ¶ 28, 904 N.W.2d at 478; see also Wolford v. Thomas, 190 Cal. App. 3d 347, 356, 235 Cal. Rptr. 422, 427 (1987) ("[A] building or structure does not constitute a nuisance merely because it obstructs the passage of light and air to the adjoining property or obstructs the view from the neighboring property, provided such building or structure does not otherwise constitute a nuisance.").

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    Topics: actionable nuisance, homeowner's association, lawful structure, adjoining landowners

    Expansion of Easements by Necessity in Virginia

    Posted by Steven G. Friedman on Mon, Dec 18, 2017 @ 10:12 AM

    Steve Friedman, Senior Attorney, National Legal Research Group

                "An easement is the privilege to use the land of another in a particular manner and for a particular purpose, but it does not give the owner of the dominant estate an ownership interest in the servient tract." Beach v. Turim, 287 Va. 223, 228, 754 S.E.2d 295, 297 (2014) (internal quotation marks omitted). "Easements may be created by express grant or reservation, by implication, by estoppel or by prescription." Id.

                Each type of easement is established (and sometimes governed) by a different set of rules. See Palmer v. R.A. Yancey Lumber Corp., 294 Va. 140, 803 S.E.2d 742, 749 (2017) (noting that "express easements and easements by prescription . . . have their own set of rules separate and apart from the rules governing easements by necessity").

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    Topics: property, expansion of easement, easements by necessity

    Landlord's Liability for Collapsed Deck

    Posted by D. Bradley Pettit on Thu, Oct 26, 2017 @ 11:10 AM

    Brad Pettit, Senior Attorney, National Legal Research Group 

                The general rule is that "[w]hile a landlord is not a guarantor for the safety of those persons who might be expected to come upon its property, it does have a duty to make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition."  49 Am. Jur. 2d Landlord and Tenant § 454 (Westlaw May 2017 Update) (citing Rodriguez v. Providence Hous. Auth., 824 A.2d 452 (R.I. 2003)). A recent decision by a Georgia appellate court in a deck collapse case indicates that unless the evidence shows that an out-of-possession lessor of residential real estate knew or had reason to know that a potentially dangerous condition existed with respect to the premises or an improvement thereto, the landlord cannot be held liable for injuries that were suffered by a guest of the tenant due to the alleged failure to repair the premises or to make an improvement. Aldredge v. Byrd, 341 Ga. App. 300, 799 S.E.2d 263 (2017), reconsideration denied (Apr. 26, 2017).

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    Topics: property, landlord liability, collapsed deck

    CIVIL PROCEDURE: Effect of Dismissal Without Prejudice in Mortgage Foreclosure Suits

    Posted by Andrea Stokes on Mon, Jun 12, 2017 @ 10:06 AM

    Andrea Stokes, Senior Attorney, Florida Legal Research Group

              Whether there exists a limitation on refiling an action after more than one involuntary dismissal without prejudice, particularly in the mortgage foreclosure context, has been a source of some confusion. Florida Rule of Civil Procedure 1.420, addressing involuntary dismissals, provides that

    [u]nless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.

    Fla. R. Civ. P. 1.420(b). To ensure that an involuntary dismissal does not operate as an adjudication on the merits, Rule 1.420(b) requires that the order of dismissal expressly state that the dismissal is without prejudiceSee id. R. 1.420 cmt. ("Dismissals except a voluntary one constitute an adjudication on the merits unless the court provides otherwise." (emphasis added))  So it is the odd occasion indeed where a trial court involuntarily dismisses without prejudice a second or third time after a motion or sua sponte under Rule 1.420(b). The question may then arise whether a plaintiff can continue to take "bites at the apple" after a dismissal or whether the number of bites is limited. 

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    Topics: mortgage foreclosure, statute of limitations, civil procedure, dismissal without prejudice

    PROPERTY: Landlord and Tenant: Landlord's Waiver of Right to Charge Penalty for Late Rent Payment

    Posted by D. Bradley Pettit on Mon, May 8, 2017 @ 10:05 AM

    Brad Pettit, Senior Attorney, National Legal Research Group

                "[A]n implied waiver of nonperformance under a contract will be established by a party's conduct inconsistent with the assertion of the right to the performance allegedly waived, or by conduct that indicates that strict compliance with the contract will not be required, provided that the conduct manifests the requisite intent to waive the right to performance or has induced the requisite reliance by the other party." 13 Williston on Contracts § 39:30 (4th ed.) (Westlaw current through May 2015 Update) (footnotes omitted). For example, a lessor who regularly accepts late payments may establish a course of performance or "an order of business," which operates to waive, as to future payments, a provision making time of the essence and to preclude that party from enforcing a forfeiture. Id. It is also a principle of contract law that "[u]nless otherwise agreed, a course of dealing between the parties gives meaning to or supplements or qualifies their agreement." Restatement (Second) of Contracts § 223 (1981) (Westlaw current through Oct. 2016 Update).

                In the landlord-tenant context, "[a] landlord may expressly or impliedly waive the tenant's failure to perform a promise [and] [t]his waiver will deprive him [or her] of the remedies otherwise available for the tenant's default."  Restatement (Second) of Property: Landlord and Tenant § 13 cmt. f (1977) (Westlaw current through Oct. 2016 Update).  For example, "[a] landlord may waive his [or her] right to the prompt payment of rent by acting in such a manner that the tenant is led to believe that a later date of payment than that specified in the lease is acceptable."  Id. § 12.1 cmt. c.

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    Topics: implied waiver, course of performance, estoppel and waiver as affirmative defenses, late rent payment

    PROPERTY:   Realtor's Written Contract with a Co-Owner Binding on the Other Owners

    Posted by Alistair D. Edwards on Mon, May 8, 2017 @ 10:05 AM

    Alistair Edwards, Senior Attorney, National Legal Research Group

                A real estate owner's contract with a realtor may be required to be in writing and signed by the owner in order to satisfy the statute of frauds. As in many States, that is certainly the rule in California. As the California Supreme Court stated nearly 30 years ago, "[a] broker's real estate commissions agreement is invalid . . . unless the agreement or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by the party's agent." Phillippe v. Shapell Indus., 43 Cal. 3d 1247, 1258, 743 P.2d 1279, 1283 (1987) (internal quotation marks omitted).

                But, what happens when there is more than one owner of the property (co-owners) and only one of the owners signs the broker's contract? Is that contract biding on the nonsigning co-owner? Recently, in Jacobs v. Locatelli, 8 Cal. App. 5th 317, 213 Cal. Rptr. 3d 514 (2017), the court wrestled with this exact issue. In that case, only one of the co-owners of a parcel of vacant land signed the broker's listing agreement giving the broker the exclusive right to sell the property for one year and providing for a $200,000 commission. The other co-owners, and there may have been at least five other owners, did not sign the agreement.

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    Topics: written and signed requirements, real estate contract, signing co-owner binds other owners

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