South-Western Legal Studies in Business
SOUTH-WESTERN LEGAL STUDIES IN BUSINESS CASE UPDATES—REAL AND PERSONAL PROPERTY
SW Legal's Case Updates is a SW Legal Studies service to provide briefs of the latest state and federal court cases. Review the summaries and, for cases of interest, select the case brief. If you cannot find a case of interest, return to Topic Index .
Title
Summary
Even if Danger Is Open and Obvious, Duty of Care to Invitees May Still Exist
Briefed Case
Kentucky high court held that if a danger is open and obvious that does not always eliminate the need for a property owner to take precautions to protect invitees. The hospital had a duty to medical personnel at emergency room entrance to protect them from dangers as they focus on patients, not the ground.
(Updated October 2010)
Code Violation Not Discovered for Decades Still Enforceable
Briefed Case
Appeals court held that a violation of county housing code, involving rental of an apartment without permission for 25 years, was still a violation. Although the county taxed the property owner for the apartment, the code inspectors did not know about it, so it was still subject to code enforcement.
(Updated October 2010)
Hotel Owed No Special Duty to Protect Worker from Person Jumping from Building
Briefed Case
A worker walking into a hotel to do some work was injured when a person committing suicide fell on him. An appeals court held that the hotel was not liable to the injured worker as it met safety codes and had no knowledge of the suicide.
(Updated September 2010)
Right to Rescind Not Necessarily Same as Statute of Limitation for Litigation
Briefed Case
Appeals court held that a federal statute requires a property buyer to file a notice to rescind a purchase within two years if proper disclosure forms were not provided. The statute of limitations provided by the statute is three years, but if notice is not filed within two years, the right to litigate is lost.
(Updated September 2010)
Failure of Settlement Agreement Means Original Lien on Property May Be Enforced
Briefed Case
A building contractor and the property owner had a dispute that resulted in a mechanic’s lien being filed. The parties entered into a settlement agreement but the property owner failed to pay what was owed. At that point, the appeals court held, the original mechanic’s lien would be enforced.
(Updated September 2010)
City Not Liable for Sewage Backup from City Sewer Line
Briefed Case
Appeals court held that a property owner who suffered damage from a sewage backup into his building due to excess grease in the sewer line, had no cause of action based on inverse condemnation against the city.
(Updated August 2010)
Renting House to Group of College Students Violates Residential Zoning Ordinance
Briefed Case
Trial court held that a landlord violated a city zoning ordinance concerning residential property. Renting a house to a large group of college students violates the residential zoning classification of the house involved; however, the city may not immediately evict the tenants.
(Updated August 2010)
Incorrect Information from County Employees Creates No Liability for County
Briefed Case
South Carolina high court held that the fact that multiple county officials provided a property owner incorrect information about the zoning classification of property was not negligent misrepresentation. The owner of the property must exercise due diligence to learn the real classification of the property.
(Updated August 2010)
Property Owners Due Compensation for Toxic Mold from Neighbor's Condominium
Briefed Case
Appeals court held that once it was established that a long-term water leak caused toxic mold growth in a vacant condominium, and the mold penetrated the neighbor's unit, the jury could infer health problems were due to toxic mold exposure.
(Updated June 2010)
City Water Pressure Proper for Fire Fighting Purposes
Briefed Case
Homeowners sued a city when the water pressure was increased to the state standard needed for firefighting purposes. The increase caused damage to their homes. The trial and appeals court held the city immune from the suit because it was in compliance with state standards for a public safety reason.
(Updated June 2010)
Phone Company Abuses Right-of-Way Authority in Effort to Obtain Title to Property
Briefed Case
Kentucky high court noted that telephone companies, as utilities, have certain right-of-way authority to obtain easements. That authority cannot be used as a way to obtain title to property desired by the company. That is an abuse of process for which the property owner has a cause of action.
(Updated June 2010)
Claim of Illness from Mold in Apartment Building Rejected for Lack of Credible Evidence
Briefed Case
Appeals court held that a trial court properly dismissed a suit brought by former and current tenants of an apartment complex who claimed illness from mold in apartments. No medically credible diagnosis could be tied to the claims and the expert testimony was rejected as not scientifically reliable.
(Updated April 2010)
Sidewalk Means Sidewalk for Liability in Slip-and-Fall Case
Briefed Case
Illinois appeals court held that while a statute prohibits suits in most slip-and-fall cases that occur on sidewalks as a result of snow or ice that has been cleared, it does not apply in the case of a man who slipped and fell on a driveway that had been plowed for snow but was still slippery.
(Updated April 2010)
Private Property Owner Not Liable for Fall on Ice on Public Sidewalk
Briefed Case
Colorado appeals court held that while a city ordinance required property owners to clear snow and ice from public sidewalks that bordered their property, it did not create a common law cause of action for a person who slipped and fell on ice on a sidewalk that had not been cleared.
(Updated March 2010)
Mere Slipperiness Due to Ice Does Not Impose Duty of Care on Public Agencies
Briefed Case
Minnesota appeals court held that mere slipperiness, such as from ice, does not create a duty of care to government agencies with respect to persons injured from slipping on the ice. The only duty is to prevent obstructions or other dangerous conditions that may impede travel.
(Updated March 2010)
Home Owner Liable for Dog Bite Inflicted by Dog Owned by Boarder in Home
Briefed Case
A Wisconsin statute imposes strict liability on the owners of dogs when their dogs inflict injury. This liability extends to bites inflicted by the dogs of boarders that inflict injuries on others. For purposes of the statute, the homeowner is considered to be the owner of any dog kept on their property.
(Updated March 2010)
Pets Are Personal Property; Value Is Fair Market, But May Include Sentimental Value
Briefed Case
Appeals court held that when a pet is killed, personal property has been lost. The owner may sue a negligent party for the fair market value of the pet, but that can include the sentimental value of the pet. There may be no recovery for emotional distress.
(Updated March 2010)
Iowa Adopts Restatement (Third) of Torts; Duty of Care Amended for Property Owners
Briefed Case
Iowa high court held that the duty of care owed by property owners to others is governed by the Restatement (Third) of Torts. It focuses on an evaluation of the risks of harm involved, not foreseeability or substantial factor.
(Updated February 2010)
Jury Must Determine if Danger to Child Was Open and Obvious
Briefed Case
Appeals court held that it was for a jury to decide if the danger posed by a treadmill in a house being visited by a neighbor child was open and obvious, so the child needed no protection, or if the homeowner had a duty to protect the child from the danger.
(Updated January 2010)
Long Dispute over Title to Property Not Subject to Statute of Limitations
Briefed Case
Utah high court held that a dispute dating to 1994 about the title to real property was not subject to statute of limitations, so the court today could quiet the title and decide who the holder of the title is. Conflicting claims over the years clouded the title, so it could not be settled until final resolution.
(Updated January 2010)
Adverse Possession of Easement Must Be Substantial
Briefed Case
Alaska high court held that for a property owner to extinguish an easement on his property, there must be adverse possession for at least ten years. That means there must be occupation of the easement by significant and costly use of the property.
(Updated January 2010)
Alcohol Seller May Be Liable for Injuries Caused by Third Party in Criminal Assault
Briefed Case
Appeals court held that under Colorado statutory law regarding liability for the sellers of alcohol, a nightclub could be found liable for selling alcohol to a visibly intoxicated patron who then stabbed a person outside of the club.
(Updated January 2010)
Landlord Need Not Rent to Tenant with Criminal History
Briefed Case

Court held that a prospective tenant, rejected because of a criminal record, has no cause of action under the Fair Housing Act to claim discrimination. The act does not protect those with criminal backgrounds, even if the individuals in question have other personal characteristics that are protected.
(Updated November 2009)

Organization Had Right to Take Possession of Empty House and Rehabilitate It
Briefed Case

Appeals court held that an organization acted properly in requesting to take possession of a house that had been empty for more than six months, so that it could rehabilitate the house. A state law provided such right of action. The bank that owned the house would compensate the organization for the repairs it did to the house.
(Updated September 2009)

Original Tenant Liable for All Terms of Lease Despite Breach by Subtenant
Briefed Case

Appeals court held that a trial court was in error when it failed to award attorney fees to a landlord, the prevailing party in a suit against a subtenant. The lease stated that the lessor had the right to sublet the property and that in the event of litigation the prevailing party would receive attorney fees.
(Updated September 2009)

Boat Marina Subject to Access Rules of Americans with Disabilities Act
Briefed Case

Appeals court held that a boat marina that was only available to people who rented boat slips, not the general public, was subject to the public accommodation rule of the Americans with Disabilities Act.
(Updated September 2009)

Jury Must Consider If a Hazard Was Open and Obvious to Invitee on Property
Briefed Case

Appeals court held that it is for a jury to determine if a hazard is open and obvious to an invitee, in which case there is no duty to warn, or if a hazard that was involved in a fall is unreasonably dangerous.
(Updated August 2009)

Why You Hire a Lawyer to Transfer Property Properly
Briefed Case

Wyoming high court interpreted two deeds executed by parents in favor of their children. It was likely that one kind of tenancy was intended, but one deed was not clear and the default rule of law would automatically apply a presumption of joint tenancy.
(Updated August 2009)

Game Wardens Have Right to Enter Private Land to Enforce Hunting Regulations
Briefed Case

Ohio high court held that state wildlife agents have the right to enter private land to check the licenses of hunters on private land, as well as make sure there are no other violations of hunting regulations, such as using bait to attract birds when that is prohibited.
(Updated June 2009)

Land Sale Contract Relieves Owner of Premises Liability
Briefed Case

Indiana high court held that the seller of residential property, who retained title for two years until the buyer-occupant of the property made final payment, could not be held liable for not trimming trees on the property that were claimed to be at fault for obscuring vision in a fatal road accident. The buyer-occupant was in control of the property.
(Updated May 2009)

City Must Follow Its Zoning Procedures
Briefed Case

Appeals court held that when a business properly follows all city rules and zoning procedures, the city does not have the right to deny a business permit. The city abused its discretion by denying a permit to a business that complied with all regulations. Speculation that the business might not get a needed state permit was improper.
(Updated April 2009)

Improper Foreclosure Results in Punitive Damages
Briefed Case

Nevada high court held that a lender that misidentified property subject to foreclosure was liable for trespass and conversion and that punitive damages could be imposed due to willful disregard of the rights of the property owner.
(Updated April 2009)

Holder of Tourist Visa Cannot Be a “Permanent Resident” of an Apartment in the U.S.
Briefed Case

New York high court held that a foreign citizen who holds a tourist visa cannot, by definition, be a permanent resident. Under New York City rent-control law, one cannot reside in a rent-controlled apartment unless one is a permanent resident. Hence, a tourist visa holder cannot stay in a rent-controlled apartment.
(Updated February 2009)

Building Permit May Not Result in Right to Occupy Completed Structure
Briefed Case

Iowa high court held that despite a developer obtaining a building permit, the city had the right to prohibit occupancy of the structure when completed because it was later determined that the permit should not have been granted.
(Updated February 2009)

Landlords Have No Duty to Keep Public Alley Safe and Clear
Briefed Case

Montana high court held that the landlords of buildings on either side of a public alley had no obligation to keep the alley safe for use by tenants and guests. The alley is public property, not common property under the landlords’ control, so there was no obligation to keep it clear of snow and ice.
(Updated January 2009)

Medical Monitoring of Tenants for Toxic Exposure a Recognized Claim
Briefed Case

Federal trial court allowed a claim by tenants of an apartment complex, who were forced to move because of toxic mold in the complex, to bring a class action for the landlord to pay for medical monitoring due to possible health problems from mold exposure.
(Updated December 2008)

Blanket Exculpatory Clause in Lease Not a Defense for Landlord
Briefed Case

Idaho high court held that an exculpatory clause that stated a tenant could not sue a landlord for any injury was too broad and could not be enforced. All rights cannot be waived; a landlord has certain obligations at common law to provide reasonably safe premises for tenants.
(Updated October 2008)

Children of Visiting Guests Not Due Special Protection by Property Owners
Briefed Case

South Dakota high court held that social guests and their children are licensees owed a duty of protection against concealed dangers by homeowners they visit. The homeowner is not responsible for watching for the safety of children when the parents are present.
(Updated July 2008)

Seller of Property May Still Be Liable for Torts
Briefed Case

Appeals court held that while liability for torts related to property normally passes from buyer to seller, if the seller retains effective control, the seller could be liable.
(Updated April 2008)

Landlord Not Responsible for Attack by Tenant’s Vicious Dog
Briefed Case

Appeals court held that a landlord had no responsibility for an attack by a vicious dog. The dog was under the control of a tenant, and the attack occurred when children trespassed into the gated property.
(Updated April 2008)

Immobilizing Illegally Parked Car Not Trespass to Personal Property
Briefed Case

Appeals court held that the owner of a parking lot had the right to put a boot on an illegally parked car on its lot, so as to immobilize the car and force the owner to pay a fine to have the boot removed. To do this was not a trespass to the personal property of the owner of the car.
(Updated March 2008)

City Does Not Get Title to Property by Adverse Possession for Misplaced Road
Briefed Case

Minnesota high court held that under state law, a government may not obtain title to property by adverse possession. Hence, a road that was misplaced for decades, and infringes on private property, is likely a trespass and there may be a cause of action by the property owners.
(Updated February 2008)

Damages for Hold-Over Tenant Is Market Value of Rental Property
Briefed Case

Appeals court held that when a tenant improperly stayed in commercial property beyond the expiration of a lease, the tenant owed the market value of the rental property as damages. Since there was no other evidence about the rental value, the tenant would pay an amount equal to the regular rent.
(Updated February 2008)

Tree Removal from Pipeline Right-of-Way Easement Must Weigh All Issues
Briefed Case

Appeals court held that gas pipeline companies would be prevented from removing trees growing on an easement until a trial could determine if tree removal was really necessary for safety and pipeline maintenance.
(Updated January 2008)

Attractive Nuisance Doctrine Not Applied to 10-Year Old Who Drowned
Briefed Case

South Carolina high court held that the owner of a canal where a ten-year old fell in and drowned, was not liable for negligence under the attractive nuisance doctrine as the boy was old enough to understand the danger, especially since he could not swim.
(Updated December 2007)

Existence of Gang Members in Rental Area Creates No Liability for Landlord
Briefed Case

California high court held that the owner of a mobile home park did not breach his duty to a tenant injured by the gunfire of gang members who lived in or frequented the park. The gunfire was not foreseeable, so there was no obligation to have provided security.
(Updated October 2007)

Once In Federal Rent Assistance Program, Landlord May Not Opt Out
Briefed Case

New York high court held that once a landlord agrees to accept rent-assistance payments for low-income tenants under the Section 8 federal assistance program, the landlord may not opt out, as the federal rules become part of the lease.
(Updated October 2007)

City Did Not Provide Sufficient Evidence to Condemn Area as Blighted
Briefed Case

Missouri high court held that a city acted improperly by giving a real estate developer authority to force sale of property for redevelopment purposes by condemnation proceedings. There was not sufficient evidence that the area was blighted to warrant condemnation.
(Updated September 2007)

Towing Company Holding of Vehicle without Permission Was Conversion
Briefed Case

Appeals court affirmed that for a towing company to deprive the rightful owner of a vehicle of the use of the vehicle without good cause was conversion, so damages were due.
(Updated May 2007)

Massachusetts Adopts Mode of Operation Approach for Premises Liability
Briefed Case

Massachusetts high court held that the state would now use the mode of operation approach to determine liability in slip and fall cases. Rather than focus on knowledge by the store operator of a hazard, the focus is on the foreseeability of likely hazards given the circumstances.
(Updated May 2007)

Landlord Not Negligent for Allowing Guardrails to Comply with Old Code Standards
Briefed Case

New Mexico appeals court held that a landlord was not liable for allowing the space between guardrails to not be in compliance with building code standards set after the building was constructed. The guardrails would appear safe to an ordinary person even if not in compliance with modern building codes.
(Updated February 2007)

Irrigation Pond Not Attractive Nuisance
Briefed Case

A child fell through the ice on an irrigation pond and drowned. The Delaware high court held that the owner of the pond was not negligent for creating an attractive nuisance by taking additional steps to prevent access to the pond by children.
(Updated February 2007)

Employer Has No Duty to Warn Patrons of Fact that Blind Employee Uses Cane
Briefed Case

Appeals court affirmed that a store had no duty to warn patrons of the fact that a blind employee on the premises used a guide cane. Hence, when a patron tripped over the cane, the store did not violate a duty of care. The danger posed by the cane was obvious.
(Updated February 2007)

Public Purpose Organizations Exempt from Mechanics' Liens in Pennsylvania
Briefed Case

Pennsylvania appeals court held that a private, non-profit organization that performs public functions is exempt by state law from mechanics' liens being imposed on its property as a result of its contractor not paying its suppliers.
(Updated February 2007)

Realtors Do Not Have a General Duty to Warn Clients of Defects on Real Estate
Briefed Case

Appeals court held that a real estate agency had no duty to warn a client of defects that existed in a home under construction that was being shown. The realtor has a duty to warn of dangers of which the realtor is aware, but not of all possible dangers that exist.
(Updated January 2007)

Reduction in Business Value Due to Road Changes Not Inverse Condemnation
Briefed Case

Kansas high court held that a business that fell in value due to reconfiguration of the road next to the business that made customer access difficult, was not inverse condemnation and no compensation for taking was due.
(Updated January 2007)

Liens May Be Imposed on Public Property Only When Permitted by Statute
Briefed Case

Appeals court held that a subcontractor had no right of action against a city to collect for work performed for a contractor who leased land from the city but failed to pay for the work. The right to impose a lien on public property exists only when statute permits it.
(Updated October 2006)

Implied Warranty of Habitability Applies to Mobile Home Rentals
Briefed Case

Trial court held that under Mississippi law the implied warranty of habitability applies to mobile homes and mobile home lots unless expressly waived by the lessee.
(Updated October 2006)

Tenant Had Right to Break Lease Due to Safety Defect
Briefed Case

Appeals court held that a tenant had the right to refuse to occupy a house that contained a safety defect. The landlord breached the implied warranty of habitability and must return the damage deposit.
(Updated October 2006)

Intention of the Parties Used to Interpret Servitudes That Are Not Clear
Briefed Case

Arizona high court held that it would adopt the Restatement (Third) of Property that when servitudes are interpreted, the court will give effect to the intention of the parties determined from the language used in the instrument as a whole.
(Updated August 2006)

Lien Attested to by Lien Filing Service is Valid
Briefed Case

Appeals court held that a mechanics' lien filed by a lien filing service for a client was not frivolous or invalid because it was attested to by the filing service. The filing service was the authorized agent of the claimant, so could attest to the lien.
(Updated August 2006)

Damage from Public Construction Not a Taking; May Be a Tort
Briefed Case

Iowa high court held that a building made uninhabitable by vibration from road construction was not subject to eminent domain proceedings as a taking. The damage was a consequence of temporary action, not a permanent occupation, so must be addressed by tort.
(Updated May 2006)

Innkeepers’ Act Holds Hotel Harmless for Thefts from Guests Rooms
Briefed Case

Appeals court held that a hotel cannot be sued for the loss of valuables taken from a guest’s room while the guest was sleeping even though the hotel issued a key to an unknown person during the night. The Innkeepers’ Act states that hotels are not liable for stolen valuables.
(Updated April 2006)

Payments for Mineral Royalties Are Personal, Not Real, Property
Briefed Case

Mississippi high court held that a claim for unpaid mineral royalties comes under the law of personal property. As such, a three-year statute of limitation applied, not the ten-year statute of limitation that applies to interests in land.
(Updated February 2006)

Limited Duty to Protect Patrons from Criminal Acts Exists
Briefed Case

California high court held that when a criminal act by a third party is a foreseeable possibility, a proprietor has an obligation to provide some assistance to its patrons to help prevent such an event.
(Updated February 2006)

Liability May Be Based on Negligence but Not Also on Res Ipsa Loquitur
Briefed Case

Iowa high court held that a court could not give a jury the option of imposing liability in a case of premises liability based both on negligence and on res ipsa loquitur, as that would be prejudicial against the defendant.
(Updated February 2006)

Public Easement on Private Property Does Not Mean Loss of Ownership
Briefed Case

Appeals court held that a private party had no right to enter on a public easement and remove soil from it. The easement, on private property, was for public benefit and did not give private parties the right to make use of the property.
(Updated February 2006)

Violating City Building Code May Not Be Grounds for Negligence Per Se
Briefed Case

Alabama high court held that when a contractor was sued for an injury suffered at a construction site where the city building code was not followed, it was not subject to liability for negligence per se, but to the rule of negligence. The per se rule applies only if a safety rule is violated that applies to a specific class of persons, not the general public.
(Updated November 2005)

Tenants Can Recover Cost of Major Improvements
Briefed Case

SW Legal Virginia high court held that tenants who believed they were buying a house could recover the cost of major improvements they made to the property. Since there was no written agreement, there was no enforceable contract for sale, only a tenancy. The tenants were responsible for all monthly rent payments.
(Updated November 2005)

Imposition of New Conservation Restriction Not a Taking
Briefed Case

New York high court held that the imposition of a more restrictive easement on property as a condition of a construction permit was not a taking. The new conservation restriction did not differ significantly from the old and it granted the town new enforcement powers.
(Updated June 2005)

Statute Determines Extent of Premises Liability
Briefed Case

Colorado high court held that a state statute that defined premises liability supersedes the traditional common law definitions, so premises liability cases must be determined under the standard of care provided in the statute.
(Updated June 2005)

A Guest on One Part of Property Can Be a Trespasser on another Part of the Property
Briefed Case

Maine high court held that a dinner guest who went, without knowledge of the property owner, to look in another house being built on the home owner's property, and was injured when he did, was a trespasser. The status of a guest owed a duty of care was lost when the guest went, uninvited, on other parts of the property.
(Updated May 2005)

Actual Knowledge, Not Constructive Knowledge, of Converted Goods Needed for Liability under Michigan Law
Briefed Case

Michigan high court held that a lumber company could not be held liable for damages under a state law because it did not have actual knowledge that it was selling lumber to an employee of a building company that forged documents to get goods in the name of her employer.
(Updated May 2005)

E-mail Notification of Construction Hazard May Be Insufficient Warning
Briefed Case

Appeals court held that an employee who was injured when she fell into a construction hole outside the back door of an office building had the right to sue the contractor for failing to provide more notice of the hazard than an e-mail distributed three days earlier.
(Updated April 2005)

Car Wash Responsible as Bailee of Car Being Washed, But Not of Jewels Left in Car
Briefed Case

Alabama high court held that when a jewelry salesman's car was stolen from a car wash while it was being dried, and a large amount of jewelry was stolen from the trunk, the car wash was responsible for the car, as a bailment for its care was created, but was not responsible for the jewelry.
(Updated November 2004)

Prescriptive Easement Established After Ten Years Open Use of Driveway
Briefed Case

Appeals court held that a long-time property owner, who had used a driveway to access his property for more than ten years, had obtained a prescriptive easement to continue access to his property. The new owners of the property that the driveway crossed could not prohibit his use of the driveway.
(Updated October 2004)

Tenant Who Trips On Open and Obvious Hazard May Not Sue Landlord for Damages
Briefed Case

Appeals court held that when a tenant left the sidewalk to go on the grass, and tripped on an exposed drainage pipe, there could be no suit against the landlord for negligence. The pipe was an open and obvious danger, and the tenant voluntarily left the sidewalk.
(Updated April 2004)

High Trees Are Nuisance That Must Be Removed
Briefed Case
Rhode Island high court held that high trees planted to block a neighbor’s view of the ocean were a nuisance, a spite fence, that had to be removed. The trees were planted in retaliation for one neighbor opposing the other’s request for a change in zoning of the property.
(Updated April 2004)
Woodshed Encroaching on Neighbor's Property for 7 Years Does Not Create a Property Right
Briefed Case
Appeals court held that a neighbor who encroached on a vacant lot for seven years, until the buyer of the lot contested the right of the neighbor to occupy the land, did not obtain a prescriptive easement for continued use due to seven years of use. The buyer of the lot had the right to take occupancy with clear title.
(Updated April 2004)
Landowner Responsible for Condition of Grassy Strip between Sidewalk and Curb
Briefed Case
Appeals court held that a pedestrian who tripped over a tree root that was sticking up in a grassy strip between a sidewalk and a curb could proceed to trial. A jury could determine if there was negligence on the part of the property owner by failure to properly maintain the grassy strip.
(Updated April 2004)
Restrictive Covenants Are Enforced Except in Case of Radical Changes in Conditions
Briefed Case
Appeals court held that a church had no right to build parking spaces on residential lots it owned adjacent to church property. The lots were subject to a restrictive covenant that they only be used for private residences. There was no radical change in conditions of the property that would allow the covenant to be modified.
(Updated March 2004)
Nuisance Caused by New Home Justifies Removal of Home
Briefed Case
New Hampshire high court held that a nuisance had been created when construction of a new home caused water to be diverted to a neighboring house causing damage to it. This situation could only be remedied by removal of the new home and the fill that had been dumped on the property when the home was built.
(Updated March 2004)
Transfer of Ownership of Property from Corporation to Sole Owner of That Corporation Is Not a Sale
Briefed Case
The lease of commercial property contained a right of first refusal for the tenant to have the option to buy the premises at a price offered by a third party during the lease. When the owner of a corporation that owned the property transferred the property to himself personally, there was no sale that triggered the right of first refusal.
(Updated January 2004)
Mechanics' Lien Must Be Delivered Within Statutory Notice Period
Briefed Case
Appeals court held that a mechanics’ lien was to be dismissed because the creditor failed to ensure that the notice of the lien was delivered to the debtor in less than 120 days after work was completed. The clock runs from the end of work until receipt of the lien notice, not when the notice is mailed.
(Updated January 2004)
Landlord Has Duty to Mitigate Damages When Tenant Abandons Property
Briefed Case
Appeals court held that when a tenant abandons property, the landlord regains possession, at which point the tenant ceases to pay rent. The landlord has an obligation to mitigate damages by leasing the property at a reasonable price so the trial court can determine damages.
(Updated January 2004)
Lease Unenforceable When Major Terms Missing
Briefed Case
Utah supreme court held that a commercial lease failed to form an enforceable contract because it was silent as to a major issue of financial responsibility. Since the lease was ambiguous, it was unenforceable against the tenant.
(Updated November 2003)
Easements May Expire If Not Used
Briefed Case
Appeals court held that it must be determined at trial if an easement had been abandoned because of non-use or if there was sufficient use to constitute occupancy of the easement. In Minnesota, easements expire after 40 years unless actively used or notice has been filed of intent to use the easement.
(Updated November 2003)
Farmer Could Sue Neighbor Farmer in Nuisance for Massive Weed Infestation
Briefed Case
South Dakota high court held that a farmer could bring nuisance action against a neighbor who did not keep non-noxious weeds under control on his property such that large quantities of the weeds blew on surrounding land and damaged agricultural operations.
(Updated November 2003)
Condominium Association May Sue Builder for Alleged Defects in Condominiums
Briefed Case
Appeals court held that under Oregon law a condominium association is a real party that has the capacity to sue the builder of the condominiums for alleged defects in construction that affected the common areas of the condominiums.
(Updated July 2003)
No Permission or Compensation Needed to Lay Cable Down Public Right-of-Way
Briefed Case
Oklahoma high court held that a telecommunications company, given permission by the state to lay fiber optic cable, need not obtain permission or pay compensation to lay cable on land that already contains an easement for a public road.
(Updated May 2003)
Eminent Domain May Be Used to Take Leases for Benefit of Private Party
Briefed Case
New York appeals court upheld the right of a city to use eminent domain to take lease interests in real estate for the benefit of a private company that wished to abrogate the leases in order to expand a shopping mall.
(Updated April 2003)
Likely Value of Property After Rezoning May Be Considered in Eminent Domain
Briefed Case
Georgia high court held that when the value of property is determined in cases of eminent domain condemnation, compensation may be based on the likely value of the property after rezoning, not the value in its current zoning status.
(Updated April 2003)
Power Company Obtained Prescriptive Easement for Power Lines
Briefed Case
Montana high court held that an electric power company that had power lines over and under the owner's property, but that never received an easement from the property owner, had a prescriptive easement due to more than five years of open and notorious use.
(Updated March 2003)
Model Home Used as Sales Office Violates Zoning Ordinance
Briefed Case
Iowa high court held that for a home builder to use a model home as a sales office in a single-family residential area where businesses were not permitted was a violation of the city zoning ordinance as a commercial enterprise.
(Updated March 2003)
County Road Not Abandoned Long Enough for Property to Be Taken by Adverse Possession
Briefed Case
Appeals court held that although a county was willing to abandon a road that it no longer maintained in favor of property owners along the road, because the property had not been abandoned for ten years, as required by Iowa law, the property owners were not qualified to obtain title to the property by adverse possession.
(Updated February 2003)
City's Use of Groundwater Subject to Reasonable Use Doctrine
Briefed Case
Ohio appeals court held that a group of residents of a village could sue a nearby city for breach of the duty not to take an unreasonable amount of groundwater that would cause an injury to the quantity and quality of water available for those who use the same groundwater supply.
(Updated January 2003)
Residential Lots Protected by Covenants May Not Be Used for Other Purposes
Briefed Case
Appeals court held that a residential lot with covenants that make clear the purpose of the lot could not be converted to other use by its owners. Neighbors had the right to obtain an injunction against the lot owner from using it for any purpose not consistent with the servitudes that limit its use.
(Updated November 2002)
Apartment Owned As Shares of Stock Is Not Real Property
Briefed Case
Washington state high court held that the sale of an apartment that was controlled by shares of stock in a corporation was governed by contract law, not by the law concerning how real property transactions must occur under the statute of frauds.
(Updated November 2002)
Title Insurer Has No Duty To Disclose All Title Defects
Briefed Case
Washington high court held that a title insurance company, when agreeing to insure title, has no general duty to reveal all title defects; rather, it states limits to its insurance coverage.
(Updated July 2002)
Government Construction May Affect Inverse Condemnation of Neighboring Property
Briefed Case
Appeals court held that it is for a jury to determine if the claim of a home owner that new highway construction caused so much damage to her house that it made it unfit for habitation is correct. Inverse condemnation can result from actions on neighboring land and need not involve a direct taking.
(Updated March 2002)
Damage to Private Road by State Is Basis for Inverse Condemnation
Briefed Case
Appeals court upheld an award of damages to the owner of a private road who suffered damage to the road from underground construction work done by the state. Such damage is inverse condemnation, and the state must compensate the property owner for the damage since the road was not dedicated to public use.
(Updated March 2002)
Buyer of Land Smaller Than Advertised Has No Recourse
Briefed Case
Appeals court affirmed that the buyers of land advertised as 280 acres who learned after the sale it was 20 acres less, had no cause of action against the seller since the contract and deed did not specify acreage, but listed the property boundaries. There was no evidence of intent to deceive, so the contract stands.
(Updated February 2002)
Sixty Year Old Fence Did Not Establish Land Ownership
Briefed Case
Appeals court held that when a survey showed that a sixty year old fence line placed land on the wrong side of the property line, that the survey line would control the boundary because the fence had been built originally by agreement, so there was no change in ownership by adverse possession.
(Updated February 2002)
Distribution of Spam on Company E-Mail System is Trespass
Briefed Case
Appeals court upheld an injunction against a former Intel employee who distributed several e-mails complaining about the company to thousands of Intel employees on the Intel e-mail system. This misuse of company property was trespass to chattels that warranted an injunction against further invasions.
(Updated February 2002)
Buried Treasure Is Mislaid Property That Belongs to Landowner
Briefed Case
Appeals court held that gold coins that were buried for decades, and were uncovered by workers are mislaid property that belong to the present landowner. The old rule of "finders keepers" for such treasure is not considered good law.
(Updated December 1, 2001)
Buildings Not in Compliance with Land Use Plan Must Be Destroyed
Briefed Case
Appeals court held that a developer, who constructed over $3 million worth of apartment buildings prior to final judicial review of a request for a zoning variance to allow their construction, must tear down the buildings even though the loss in value to the complaining neighbor was only $26,000.
(Updated December 1, 2001)
Person Bitten by Neighbor's Dog Was Trespasser
Briefed Case
Appeals court held that a woman bitten by a neighbor's dog, when she was trying to calm the dog during fireworks, was a trespasser who did not have consent to enter the property for such purpose. Since the injury inflicted was not wilful or wanton, there is no liability.
(Updated October 1, 2001)
Negligent Maintenance May Be Basis for Recovery for Damage to Health of Tenants
Briefed Case
Delaware high court upheld a damage award to two tenants of an apartment building who were found to have suffered permanent health damage due to exposure to high levels of mold in the apartments that was caused by inadequate maintenance. Liability based on ordinary negligence may occur, which covers matters not included in the Landlord Tenant Code.
(Updated October 1, 2001)
Failure to Give Notice of Intent to Vacate Rented Office Left Lease in Place for Full Term
Briefed Case
Rhode Island high court affirmed judgment for landlord for the full rental value of property for a five-year lease. Tenants vacated at the end of the first term of the lease, but failed to inform the landlord of their intent to vacate, so the automatic five-year renew clause was effected and tenants were responsible for the rent less rent paid by new tenants.
(Updated August 1, 2001)
Ohio Adopts Attractive Nuisance Doctrine
Briefed Case
The Ohio supreme court held that the state adopts the attractive nuisance doctrine and that it will be applied in a case in which a child fell into a neighbor's unfenced pool and drowned. The child's mother also drowned attempting to rescue her son. The doctrine is an exception to the rule that landowners have no special duty of care to trespassers.
(Updated July 1, 2001)
Statute Controlling Speech on Signs on Private Property Near Highways Unconstitutional
Briefed Case
Texas appeals court struck down the state's Highway Beautification Act as unconstitutional because it requires property owners to obtain state permission to erect signs that can be seen from highways. The regulation of content on signs violates property rights and the First Amendment.
(Updated June 1, 2001)
Innkeeper Can Use Self-Help to Evict Roomer Who Does Not Pay His Bill
Briefed Case
Appeals court held that an innkeeper, who runs a hotel or rooming house, can use self-help to evict a non-paying tenant. In the District of Columbia, this is not the case for tenants who rent apartments from landlords. In that case, the landlord must go through judicial proceedings to evict a non-paying tenant.
(Updated June 1, 2001)
Drug Dealing in Building Creates Nuisance But Destruction of Building Not Justified
Briefed Case
The Maryland high court reversed lower courts that approved the destruction of a building that was used for drug dealing. Drug dealing is a nuisance that may be enjoined, but it is the activity that is a nuisance, not the building itself, so the courts exceeded their authority in ordering the building to be destroyed.
(Updated May 1, 2001)
Properly Recorded Mechanic's Lien Applies to New Property Owners
Briefed Case
A supplier of materials to a home being constructed filed a lien against the builder. The home was purchased after the lien had been filed. The supplier could sue both the builder and the purchaser of the home, as the lien is good against any later owner of the property.
(Updated April 1, 2001)
Lead Paint in Older Houses Must Be Disclosed in Residential Real Estate Sales
Briefed Case
Court ordered a trial to be held to determine damages incurred by the buyer of a house built before 1978. The sale of such houses must include information about the dangers posed by lead-based paint and must include a disclosure form about the presence of such paint. Sellers failed to provide such information, so may face treble damages.
(Updated February 1, 2001)
Social Host Owes Minimal Duty of Care to Licensee on Property Versus Duty Owed to Invitee
Briefed Case
Appeals court affirmed judgment for a property owner sued by high school student injured in a fight that occurred at a party held at another student's home. The host property owner must refrain from willful and wanton misconduct against such a guest, who is a licensee, not an invitee, who would be owed a higher duty of care.
(Updated November 1, 2000)
Damages for Conversion of Funds May Not Include Purely Speculative Losses
Briefed Case
Appeals court held that the wrongful attachments of funds was conversion. The party who wrongfully converted the funds must return the money and cover both the attorney fees and lost interest. Damages beyond that must be shown to be more than speculative use of the funds. There must be evidence that the funds had a particular use, and the value of that use was lost.
(Updated November 1, 2000)
Easements May Not Be Expanded Beyond Original Grant or Intent
Briefed Case
Appeals court held that the buyers of property that had a road easement to it could not expand that easement to be able to obtain access to some other land they purchased along the easement. However, the buyers obtained an easement to their septic field, which extended beyond their property line, because the easement was implied in the property sale.
(Updated October 1, 2000)
Ordinance to "Conserve Natural Beauty" During Land Development Too Vague
Briefed Case
Maine high court struck down as unconstitutional a local land use ordinance that stated that development must "conserve natural beauty." The standard improperly delegates too much authority to local regulators since it has no clear meaning.
(Updated September 1, 2000)
Forfeiture of Video Gaming Machines Not Taking of Property
Briefed Case
The South Carolina high court upheld a state law declaring all video gaming machines to be illegal as of a certain date. The property became contraband that could be seized by the state at that time. The state has a legitimate interest in regulating gambling and in not destroying all economic value of the land on which the machines sit.
(Updated August 1, 2000)
First in Time Is First in Right in Priority of Liens
Briefed Case
Appeals court held that a tax lien was perfected against property before a judgment lien was perfected because the amount of the judgment lien was uncertain until after the tax lien had been filed.
(Updated March 1, 2000)
SW Legal Virginia Drops Invitee/Licensee Distinction for Duty of Care by Landowner
Briefed Case
The SW Legal Virginia high court dropped the old three-part distinction between invitee, licensee and trespasser. The court held that landowners have the same duty of reasonable care to protect licensees and invitees. To trespassers, the only duty owed is to not inflict willful injury.
(Updated January 1, 2000)
Caveat Emptor Applies to Vacation Rentals in North Carolina
Briefed Case
Members of a family were injured when a deck on a vacation rental house collapsed. The North Carolina high court held that under the common law there is no implied warranty of suitability for such short-term rentals; the terms of the lease contract determine liability, so the case was to be dismissed.
(Updated January 1, 2000)
Gas Can in Storage Shed Not Attractive Nuisance to Trespassing Children
Briefed Case
Minnesota high court reversed a jury verdict in favor of children who were killed and injured in explosion resulting from their trespassing on their neighbor's property, taking a gas can from a storage shed, and lighting it on fire. The property owner had no reason to foresee that particular danger in the event of trespass by a child.
(Updated October 1, 1999)
Details of Sheriff's Sale of Property Need Not Be Included in Proper Notice to Lienholders
Briefed Case
Ohio high court held that an existing court procedure, where recorded lienholders of property are provided legal notice of sheriff sale of property to settle claims against the property, is adequate due process to notify the party of the need to appear to defend their rights to the property.
(Updated October 1, 1999)
Computer Flickers Caused by Electromagentic Fields Not Nuisance
Briefed Case
Building owner sued electric company for disruptions caused to computer screens in a building next to electric transmission lines. Appeals court upheld dismissal of case, finding that the power company had an easement and that its use of the transmission lines was within normal industry practice.
(Updated October 1, 1999)
Landlord Not Liable to Tenant for Defect in Premises That Arose During Tenancy
Briefed Case
Tenant was injured when he fell due to a loose brick on a step. Since tenant had been in the house for three years, the condition arose during that time, and the landlord was not notified of the problem, the New Jersey appeals court held that there was no liability.
(Updated September 1, 1999)
Co-Tenant Who Removed Timber from Jointly Owned Land Liable for Waste
Briefed Case
Idaho high court upheld trial court verdict in favor of tenant-in-common who suffered loss due to fraud by waste when co-tenant had the land logged without knowledge or permission of other owner and kept all proceeds.
(Updated May 1, 1999)
Attachment of Property Without Hearing Unconstitutional
Briefed Case
Appeals court held a Washington state statute that allows the attachment of real property without prior notice and a hearing to be unconstitutional. Attachment that occurs in a dispute over construction must allow prior notice and hearing to have adequate due process.
(Updated May 1, 1999)
Common Charges Lien at Condo Not Extinguished by Foreclosure
Briefed Case
Connecticut high court held that the unpaid common charges of condos were not extinguished when the mortgage holder foreclosed on the condos. The condo association can sue for unpaid common charges after foreclosure for unsatisfied debt.
(Updated May 1, 1999)
Loss of Direct Access to Property from Highway Not Compensable Taking
Briefed Case
Change in highway design meant that property owner would have a less convenient way in and out of their property. Kansas high court held that such loss of access is not inverse condemnation that requires compensation. The state balances various interests in designing highways for public safety.
(Updated April 1, 1999)
Mechanic's Lien May Be Enforced Despite Technical Violations of Home Improvement Law
Briefed Case
Connecticut supreme court held that a contractor's mechanic's lien against a home owner for renovation work, could be enforced despite paperwork defects that violated the letter of the Home Improvement Act. The defects were too trivial to affect the reality of the transaction.
(Updated April 1, 1999)
Subcontractors Lien Against Government Barred by Sovereign Immunity
Briefed Case
Supreme Court reversed lower court order for Army to pay subcontractor, who was not paid by bankrupt prime contractor, on construction project. Waiver of sovereign immunity has not been extended to liens against government property.
(Updated April 1, 1999)
Landlord Liable to Tenant's Guest for Death Caused by Tenant's Pit Bull
Briefed Case
Maryland appeals court upheld jury verdict for parents of child killed by pit bull kept by tenant in violation of lease. Landlord had failed to prevent foreseeable injury by not requiring tenant to get rid of dog despite complaints about the dog.
(Updated January 1, 1999)
Polluted Property Can Have Clear and Marketable Title
Briefed Case
New Hampshire high court held that even if property is polluted, it may still have clear and marketable title. The pollution affects the value and marketability of the property, not the title itself.
(Updated January 1, 1999)
Evicted Tenant's Property Not Responsibility of Landlord
Briefed Case
Landlord had delinquent tenant evicted from apartment. Sheriff placed personal effects out in front of apartment, where they were stolen and vandalized. Court held that landlord had no bailment of that property or other duty to tenant once court ordered eviction.
(Updated November 17, 1998)
Defective Construction Work Prevents Foreclosure of Lien
Briefed Case
Appeals court affirmed decision of trial court that plaintiff contractor's work was improper, causing damage to defendant. Hence, defendant would be awarded damages, and plaintiff's construction lien, which is an equitable claim, was denied after de novo review.
(Updated October 5, 1998)
City Ordinance Restricting Sex Stores to Industrial Area Upheld
Briefed Case
Appeals court upheld city zoning ordinance designed to prevent reductions in property values and increases in crime and disease by restricting sexually oriented businesses to locate in industrial area. The regulation is sufficiently narrowly tailored that it does not violate free speech rights.
(Updated May 29, 1998)
Property Owner Could Revoke Permission to Use Land
Briefed Case
Oral permission from one business owner to another to use a parking lot and sidewalk could be revoked 20 years later, and no easement was created, because property user had not incurred expenses pursuant to the parol license.
(Updated 2-3-98)
My Boy Is So Successful He Always Gives Me New Cadillacs!
Briefed Case
Elderly woman "given" a series of new Cadillacs her son stole from the dealership he worked at is liable to the dealership for conversion.
(Updated 12-29-97)

©1997-2010 South-Western Legal Studies in Business, A Division of Cengage Learning. All Rights Reserved.