We are thrilled to announce the opening of our 200th Lieb School Class!

Divorce Deals: Selling the Marital Residence

Instructor: Andrew Lieb, Esq., MPH

Date: March 5th, 2015

Location: 230 Elm, Southampton NY

Click Here to Register

Class Description: Watch out! Here comes a headache, exposure to liability and impossible commissions. Ever work with divorcing spouses before? Then you know. Good luck getting them to agree on anything from sales price to showing dates while selling their homes or commercial properties? What happens when they start asking you to write letters about how their spouse is not cooperating on the deal? Ever get a call from their lawyers? How about when you get subpoenaed to appear and testify in their Contempt Hearing? What do you do? Where do your duties lie? What can you say and which documents can you provide?

A divorce can pull everyone and everything into its grasp. This course is designed to teach real estate agents how to navigate through all of the complexities of divorce deals from properly listing the property to procuring a purchaser and receiving commission in compliance with License Law.

Learn about the Domestic Relations Law’s concept of marital property. Prepare yourself to stay above the fray, make the deal, get paid and keep the divorcing clients responsive and cooperative along the way. Good luck.

Your neighbor's commercial vehicle (with loud and colorful electrician advertisements throughout the truck) is parked on the street abutting your driveway every day. Crews meet for coffee out front every morning at 5 AM, prompt, in order to gather for their workday. Your spouse parks in your driveway and you have to park down the street. The morning noise drives you nuts and you can't take it anymore.

Regardless if the business is lawful, pursuant to the local municipal code (i.e., zoning code), New York's highest court has said that "no one may make an unreasonable use of his own premises to the material injury of his neighbor's premises".  Meaning, that there are no hard and fast rules in this field of law, which is called a private nuisance cause of action, but, instead, a trier of fact (i.e., judge or jury) must determine if a given business activity is unreasonable at the location where it is being conducted.

In determining if an activity is unreasonable, the following factors should be analyzed to assess the totality of the circumstances under which the activity is being conducted:

1. The location of the property at issue;
2. Who was at the location first, the complainant or the business operator; 
3. The nature of the business' use of the property;
4. An overall character assessment of the neighborhood where the activity is occurring;
5. With respect to the injury claimed, how frequent is it occurring and to what extent or level is it occurring; and
6. How, specifically, the business is effecting the complainant's enjoyment of life, health and property.

A private nuisance cause of action has been used to shutter the following types of business operations: raising and keeping of pigs, quarry operations, nightclubs, auto racetrack and open air concerts. In fact, the Courts of New York have held that a business cannot defend such an action by arguing that "the defendant's business or works is lawful, and is a great benefit, utility, and convenience to the public, and is rightfully carried on in a proper, suitable, and convenient place, and in a careful and orderly manner, and in the best and most improved manner". Such a defense is irrelevant.

So, if you wish to shutter the business, exercise your rights and make a claim that the business is a private nuisance to your use of your property, you can let a court decide if the activity should be stopped. Further, let a court decide if you should be compensated for your lost use and enjoyment during the time that the business operated. To establish your lost value, look to the diminished rental value of your property during the time that the business operated from what that value would have been if there was no such business existing during that time. Now, go live in peace and quiet.

Not only can the offensive smell be stopped, but damages may be available to you as the neighbor who has had to endure the offensive smell throughout its existence. In fact, the law in New York is not so extreme that it requires odors to adversely impact your health in order for you to have rights. Instead, you have a claim so long as the odors are unpleasant and offensive. Odors that typically give rise to these types of disputes are caused by chemicals, farms, factories, restaurants and the like. To stop the smell, the claim that you should bring is called a private nuisance cause of action and to win on such a claim you will have to demonstrate that your enjoyment of life and property has been rendered objectively uncomfortable based upon unreasonable activities causing the smell.

Specifically, the courts explain that the following five (5) elements must be proven to prevail on this claim:

1. An interference substantial in nature
2. Intentional in origin
3. Unreasonable in character
4. With a person's property right to use and enjoy land
5. Caused by another's conduct in acting or failure to act

You should take note that you don't even have to be forced from your home by the smell in order to win on your claim. Instead, and even if you stay in your home, as long as your property experienced a diminution in its rental value during the course of the existence of the smell, you can recover that diminution in addition to having the smell's cause be stopped.

Shockingly though, secondhand smoke infiltration emanating from a neighbor's own home is almost never considered a private nuisance and no action can likely be brought to stop the smoke. The only exception to this rule, where smoking can be stopped, is when there is an express prohibition against smoking in residences within the locality where the neighbors reside. Such a rule prohibiting smoking can come from either a local statute / code or from a private contractual right existing in the house rules of an apartment building, cooperative apartment or condominium building.

So, before trying to stop the smoking check all county, town, city and village codes for such a law. Additionally, if you live in a multiple dwelling unit (i.e., an apartment), check the rules of the building contained within its house rules, lease, by-laws and/or operating agreement before proceeding. Knowing the rules will be the difference between winning and losing your case.