A New Twist On Who Gets The House When The Relationship Ends

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

If you read this blog then you know that failed relationships often make for the most interesting cases. For example, if your would-be spouse calls off your wedding, then you are usually entitled to get the engagement ring back. But, if you cancel your wedding reception, you may not be entitled to a refund from the venue where it would have taken place. And, of course, if your ex-wife agreed to pay all "utilities" under a divorce settlement but fails to pay for water filtration services that remained in your name and you get sued by the water filtration company, your ex-wife will be required to reimburse you for those charges. Now, Burke v. Bernardini can be added to this list.

In Burke, plaintiff and defendant were involved in a "romantic relationship." (They had actually known each other for 25 years before they began dating.) While they were dating, plaintiff bought property on which he built a house where he and defendant lived together. He paid approximately $368,000 for the property and another $100,000 for improvements and additions. Both plaintiff and defendant contributed furnishings.

Before buying the property, the parties entered into an agreement that provided:

[Plaintiff] acknowledges and agrees that [defendant] has provided, and will continue to provide[,] companionship to him of an indefinite length. [Plaintiff] promises and represents that upon closing, the home shall be deeded and titled in the name of "[plaintiff] and [defendant], as joint tenants with the right of survivorship."

(As a side note, only in the hands of a lawyer does "'til death do us part" become "I agree to provide companionship of an indefinite length.") The agreement also provided that defendant would have no "financial obligations for the home, including, but not limited to, property taxes, homeowners association fees, and homeowners insurance."

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Dog (Bite) Days Of Summer, Part II: Home Inspector Bitten While Inspecting Home Can’t Sue Realtor

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

Last week, I wrote about an exception to the strict liability normally imposed on dog owners under New Jersey's dog bite statute. (A short time before that, I wrote about yet another exception to strict liability under the dog bite statute, so the exceptions are obviously more interesting than the rule.) This post is about a different dog bite case, Ward v. Ochoa, with a similar result even though it was not decided under the dog bite statute. Ward involved a home inspector who was attacked and severely injured while performing a home inspection. She sued the dog owners (who eventually settled) along with the real estate agency and real estate agent who were selling the house. Like the dog groomer in last week's post, however, the home inspector's claims were dismissed.

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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)

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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New Jersey Court Answers The Burning Question: Can I Sue The Owner Of An Abandoned Church If I Slip And Fall On The Sidewalk Outside The Church?

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

The facts and legal issues in sidewalk slip and fall cases sometimes read like they are pulled from law school final exams. In New Jersey, the baseline legal rule is clear — owners of commercial properties generally have a duty to maintain, in reasonably good condition, the sidewalks abutting their property, while owners of residential properties do not. But does a property owner have a duty to maintain its sidewalks when:

the property is both residential and commercial, like a multi-family home where one unit is owner occupied and the others are rented (click here for more on that, but the short answer is that it depends on whether the property is primarily residential or primarily commercial ); or
the plaintiff is a tenant and sues the landlord after slipping on a sidewalk outside the rental property (click here for more on that, but usually, yes); or
the property is a commercial property, final judgment of foreclosure has been entered in favor of the lender, but no sheriff's sale has been scheduled (click here for more on that, but if the lender can be considered a mortgagee in possession, then yes); or
the property is owned by a condominium or common-interest community (click here for more, but generally, yes if it's a private sidewalk within the condominium, no if it's a public sidewalk abutting the condominium); or
the property is residential and the fall is caused by sweetgum spikey seed pods that fell from a tree on the defendant's property (click here, but, no).

And now one more can be added to the list thanks to the Appellate Division's decision is Ellis v. Hilton United Methodist Church, where the question presented was whether "sidewalk liability applies to an owner of a vacant church."

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Wait. This Is Arbitration? I Thought It Was Mediation.

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

Early in the movie, My Cousin Vinny, Joe Pesci's character, Vincent Gambini, tells the judge that he has significant experience trying cases in New York. The judge does some research and learns that there is no record of anyone named Vincent Gambini trying any cases in New York. Gambini then does what one should never do, he lies to the judge. He tells the judge that he tried cases under the name Jerry Gallo. Gambini thinks this is a brilliant move because Jerry Gallo is a notable New York lawyer who Gambini has read about in the papers. Unfortunately for Gambini, however, he never read the articles about Jerry Gallo's death. Naturally, the judge finds out that Jerry Gallo is dead, and confronts Gambini, which leads to the following exchange:

I imagine this may have been similar to what the defendant in Marano v. The Hills Highlands Master Association, Inc. said when it received an unfavorable arbitration award. "Did you say binding arbitration? No. We were participating in non-binding mediation. Not arbitration." Things worked out for Vincent Gambini in the movie, they did not work out so well for defendant in Marano.

In Marano, plaintiffs owned a unit in a condominium development. The relationship between unit owners, like plaintiffs, and the association was governed by the association's bylaws, which "arguably include[d] an arbitration provision." So, after a dispute developed between plaintiffs and the condominium association over a "flooding condition" in their backyard, plaintiffs' attorney wrote to the association's attorney to demand arbitration. He received no response, so he wrote again and stated that unless the association's attorney confirmed that he was "in the process of arranging for the arbitration proceeding," plaintiffs would sue to compel arbitration. The association's attorney responded by disputing some of the claims in plaintiffs' letter but agreeing to participate in "ADR" (alternative dispute resolution). Several weeks later, plaintiffs' attorney again wrote to the association's attorney asking for confirmation that the parties would proceed to an "arbitration hearing," with a hearing officer who would serve "as an arbitrator." In response, the association's counsel contacted a retired judge to determine his availability and willingness to serve as "the arbitrator."

Up to this point, it appears clear that the parties were discussing arbitration, not mediation. What happened next created the confusion that sent the case down the path that would eventually land it before the Appellate Division.

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