The Pipes, The Pipes Are . . . Frozen! (Or, Who Is Liable For Property Damage While Home Buyer And Home Seller Wait For The Final Check To Clear?)

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Frozen pipe (pd)Although the temperature today is supposed to reach 90 degrees, this post is about frozen pipes. More specifically, pipes in a house that is under contract for sale that freeze and cause property damage after the scheduled, but not completed, closing, but before the buyer takes possession of the home. In a case like that, who is liable for the damage?

In Bianchi v. Ladjen, plaintiff was under contract to buy a home. It was an all cash sale, no mortgage was involved. The closing was scheduled for New Year's Eve. Plaintiff performed a walk through on the morning of the closing and reported no damage to, or issues with, the home. The closing could not be completed as scheduled, however, because plaintiff did not wire the balance of the purchase price to the title company prior to the closing as he had been instructed to do. Instead, plaintiff brought a certified check to the closing. As a result, the parties entered into an escrow agreement, which provided that the title company would hold  "all closing proceeds" and the "Deed & Keys" in escrow until the check cleared.

This is where it gets tricky.  

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In Case You Ever Find Yourself Fighting With Your Wife Over Your Ferraris . . .

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Ferrari (pd)Right. I never do either. But if you do (or think you might in the future) then you might want to know about Durrani v. Wide World of Cars. In that case, plaintiff sued a car dealership and her ex-husband's former lawyers for delivering two Ferraris to her ex-husband, allegedly in violation of an order entered in their divorce action.

As the trial court described it, when plaintiff and her ex-husband were married, they lived an "extravagant lifestyle." Among other things,  they owned "twenty-five luxury cars worth approximately one million dollars, boats and properties." Of these assets, however, plaintiff was only on the title of two cars (and not the Ferraris). Nonetheless, during their divorce proceeding, plaintiff sought "exclusive possession" of the Ferraris, which were titled and registered to her ex-husband and stored at the defendant dealership's facilities. Consistent with this claim, plaintiff's counsel sent a letter to the dealership requesting that it not release or transfer the Ferraris to anyone, including plaintiff's ex-husband, and threatening to hold the dealership liable for damages if it did. At the end of the letter, counsel asked the dealership to agree to abide by the demand and indicated that if it did not agree, plaintiff would "immediately seek to serve [the dealership] with a court order." The dealership did not respond.

Around the same time plaintiff's counsel sent this letter, the family part entered an order in the divorce proceeding preventing either party from dissipating, selling, etc. any assets of the marriage, and specifically identified the Ferraris in a list of assets to which this restraint applied. Plaintiff's counsel sent a copy of the order to the dealership, purportedly placing it on notice of the terms.

 

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“Send me dead flowers to my wedding, and I won’t forget to put roses on your grave”

by:  Peter J. Gallagher (@pjsgallagher)

I don't handle any family law cases, mostly because I do not think I could deal with the emotional issues that are often involved in them. But every now and again a family law decision piques my interest. The recent unpublished Appellate Division decision in Taffaro v. Taffaro was one of those cases. In that case, plaintiff was estranged from his half-sister after a dispute over their mother's estate. After the dispute, he began "attaching paper items" to her gravestone, "frequently directed at [his half sister] and referencing the dispute." When some of these items were removed, plaintiff assumed his half-sister did it, so he pursued criminal charges against her and, when these proved unsuccessful, sued her for conversion, invasion of privacy, intentional infliction of emotional distress, and negligent infliction of emotional distress.

The court dismissed the invasion of privacy and intentional and negligent infliction of emotional distress counts on statute of limitations grounds. Even assuming that defendant took the items from the gravestone, which there was no evidence to support, they were taken more than two years before plaintiff sued and plaintiff's claims were thus untimely. The trial court then held a bench trial on the conversion claim and eventually dismissed it as well, holding that plaintiff had abandoned the items. Plaintiff appealed.

The Appellate Division affirmed. It held that conversion is the "unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another . . . ." But, abandonment, which is the relinquishment of "all right, title, claim and possession" of property "with the intention of not reclaiming it," is a complete defense to conversion. In Taffaro, the Appellate Division held that the "necessary overt act" demonstrating abandonment occurred when plaintiff placed the items at his mother's grave. The Appellate Division held that the "ephemeral nature of the cards and decorative items, which were made of paper and left outside" demonstrated plaintiff's "intent to abandon." And, the Appellate Division noted that the purpose of the items was to harass defendant, not honor the memory of plaintiff's mother. Therefore, for all of these reasons, the court held that plaintiff had abandoned the items and could not maintain a cause of action for conversion.

[Fun little fact about the title of this post, which obviously is a portion of the lyrics from one of my favorite Rolling Stones songs, "Dead Flowers." My friend and I went to see Steve Earle at Tradewinds in 1998 when he was touring in support of his El Corazon album. Great show. But then, for the encore, he came walking out with Bruce Springsteen. Now, in the interest of full disclosure, my friend and I went to the show mostly because we were big Steve Earle fans, but partly because of the chance that Bruce might show up. Lucky for us, he did, and they played a couple of Stones songs, including Dead Flowers. They also played Everybody's Trying To Be My Baby" for Carl Perkins who had died a few days before the show. Anyway, click here for the full audio from the encore.]

How To Get A $300,000 Home For Just $16!!

by:  Peter J. Gallagher

A Texas man has moved into a $300,000 home in a "well-manicured" section of Flower Mound, Texas and it only cost him $16 to do so.  As the Daily Mail recently reported ("Man Uses Obscure Law To Obtain Ownership Of $300K Home In Upscale Texas Town . . . for just $16"), the man took advantage of an "obscure" Texas law that permits residents to take ownership of abandoned homes through adverse possession.  Although apparently not too popular with his new neighbors, the man is the envy of extreme couponers and bargain hunters everywhere. 

As the article notes, the house was abandoned after being hit with a trifecta of mortgage crisis phenomena:  (1) the mortgage company foreclosed upon the property; (2) the owners simply walked away from the mortgage and the property; and (3) the mortgage company went bust.  Enter Kenneth Robinson.  After doing "months of research," Robinson filled out some paperwork, paid the $16 filing fee, and moved his belongings into the home.  Robinson is now seeking to take ownership in the home under a law that the paper described as follows: 

Under the law, if someone moves into an abandoned home they have exclusive negotiating rights with the original owner.

If the owner wants them to leave, they have to pay off the mortgage debt on the home and the bank has to file a complicated lawsuit to get them evicted.

Mr Robinson believes that because of the cost required to move him out, he will be able to stay in the house. Under occupancy laws, if he remains there for three years he can ask the court for the title.

Staying three years may prove difficult though, as the home currently does not have any water or electricity.  Nonetheless, Robinson appears undeterred.

Not surprisingly, the neighbors have not welcomed Robinson to the neighborhood with open arms.  In fact, since moving in, Robinson has put up "No Trespassing" signs after his neighbors called the police to have him arrested for trespassing.  However, according to the police, Robinson cannot be arrested or removed because home ownership is a civil matter.  Judging by the comments from the neighbors, it does not appear that the matter will stay civil for much longer.

Is Your Driveway A Principal Use?

by:  Greg Ricciardi

According to the  New Jersey Supreme Court, in certain circumstances the answer is yes.  On June 16, 2011, the Court held that a driveway is a principal use where, pursuant to local zoning, the driveway does not meet the definition of an accessory use.  Moreover, depending on the circumstances, you may need difficult to obtain and costly variances to get your driveway approved.  How could this happen?

The answer lies in the curious case of Nuckey v. Borough of Little Ferry Planning Bd.  These are the facts. A developer owns multiple lots and wants to build a hotel.  One of the lots has no highway access. To remedy this issue, the developer proposes to build a driveway on an adjacent lot that would continue across the corner of another lot owned by the same principals as the developer.  This proposed driveway would provide the needed highway access for the hotel.  Sounds like a simple accessory use right? Herein lies the rub. 

 

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