Articles Posted in Real Estate

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roofers_job_people_roof-1024x683When accidents occur on a construction site, questions of liability and responsibility arise, leaving property owners wondering about their potential legal obligations. In a compelling lawsuit from Alexandria, Louisiana, the issue of whether a homeowner can be held liable for injuries sustained by a roofer while working on their property takes center stage. The case of Robert Schram v. Ronnie Waters provides valuable insights into this perplexing matter, shedding light on the factors determining a homeowner’s liability when a roofer falls from their roof.

Robert Schram, an employee of Dan Baker, slipped and fell while working on a tin roof. He fell while trying to catch a nail gun thrown from the ground causing him to break his ankle. He sued the property owner, Ronnie Waters, and his insurer Colony Specialty Insurance Company (Colony), claiming Waters was liable for his injuries because he was supposed to provide the necessary safety materials for the job. 

The trial court granted Colony’s and Waters’s joint motion for summary judgment to dismiss the claims, which found no genuine issue of fact on the question of Waters’s liability. Schram appealed, claiming the trial judge committed a legal error in his decision because there are three issues of material fact concerning Waters’s negligence.

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field_land-1024x768Aquisitive Prescription. It is a strange-sounding set of words, yet it can be vital in proving ownership of land and property in Louisiana. What exactly is it? The subsequent lawsuit helps answer that question and the following one: How can I prove ownership of land through acquisitive prescription in Louisiana?

Crystal and Gwendolyn Smith sued Raymond Felton, claiming they owned land in White Castle, Louisiana. The Smiths claimed Felton misrepresented that he owned the property, had entered the property without permission, and intentionally damaged the home located thereon. The Smiths sought injunctive relief prohibiting Felton from entering the property. The Smiths also sought damages for the damage to the property and the mental distress they suffered. 

In response, Felton argued he owned the land at issue. Although Felton did not have the actual title to the at-issue property, he provided a chain of titles dating back to 1897, whereas the Smiths only dated back to 1899. The trial court ruled in favor of Felton because he and his ancestors in title had been in possession of the at-issue property for over thirty years, which is required to establish ownership by acquisitive prescription. See La. C.C. art. 3486. The Smiths filed a motion for a new trial, which the trial court denied. They then appealed. 

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housing_real_estate_estate-1024x681Generally, when you ask an insurance agent for a specific policy, you expect them to honor your request. But what happens when your insurance agent doesn’t procure the coverage you requested for? The following case is an example of a property owner who believed he maintained insurance when he did not. 

Ray Periso claimed he was an invitee to the property owned by Ban Vu when a balcony railing collapsed, causing Periso to fall fifteen feet. Periso also claimed that his subsequent injuries resulted from Vu’s negligence. Periso sued Vu, who then turned to his insurance company to provide coverage and representation for the claim. Vu was then told he didn’t have insurance coverage, which surprised him as he believed he told his insurance agent to “procure all necessary insurance on his properties for personal and property protection. “

To seek coverage, Vu filed a third-party demand against Frazier Insurance Agency, Inc. and Jamie Frazier (collectively referred to as “Frazier”), alleging negligence in not procuring a policy that provided personal liability coverage, as he requested. A hearing occurred in the 22nd Judicial District Court in and for the Parish of Tammany, Louisiana, wherein Frazier sought to exit the litigation by way of a peremption objection. The 22nd JDC ruled for Frazier, and an appeal to the Louisiana Court of Appeal First Circuit followed.  

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doorway_1-686x1024Tripping over a ledge in public can be both embarrassing and painful. Sometimes the fall can result in serious injuries. Who should be at fault for any damages sustained? As with many legal issues, it depends. Unfortunately for one woman in Covington, Louisiana, the apparent nature of the ledge, coupled with her own activities contributing to the fall, led the Louisiana First Circuit Court of Appeal to dismiss her case.  

While soliciting a security systems company, Ms. Dale Cordell fell outside the Tanaka Building in Covington, Louisiana. Rather than attempting to enter through a doorway, Ms. Cordell walked through a patch of grass between the Tanaka Building and neighboring buildings. After looking through the window, Ms. Cordell walked back through the grass towards the street, where she tripped on a short ledge. She fell to her knees, hit her hands, and head on the cobblestone in front of the Tanaka Building. Ms. Cordell filed a lawsuit in the Twenty-Second Judicial District Court for the Parish of St. Tammany against Lorna Madison, the owner of the building, as well as several other parties, alleging severe injuries due to the unreasonably risky ledge at the Tanaka Building.   

Ms. Madison filed a motion for summary judgment seeking to dismiss the case based upon Ms. Cordell’s inability to prove the existence or knowledge of a defect that could have created an unreasonable risk of harm. The District Court agreed for one reason that a color change between the ledge and the cobblestone existed, putting pedestrians on notice. The District Court further noted that Ms. Cordell was not using the proper entrances or exits leading to and from the building. Ms. Cordell appealed to the Louisiana First Circuit Court of Appeal, arguing the District Court did not understand the facts of her case regarding the open and obvious nature of the ledge.  

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maracaibo_venezuela_building_old-1024x788What would you do if you were heir to property and found out the City had issued a demolition order for that property? A recent case decided in New Orleans discusses that question. The City of New Orleans, Louisiana, brought administrative proceedings against property owners whose property was allegedly blighted. However, the situation became more complicated because the property owners were deceased.  

Before the City of New Orleans (“the City”) held the hearing, it sent the property owners notice by certified mail. The notice stated that if the property owners did not appear for the hearing, their absence would be considered an admission of liability. Even though the U.S. Postal Service returned the notice as “Not Deliverable” and “Unable to Forward,” the City still proceeded with the hearing.

At the hearing, the City assessed significant fines for code violations and issued a demolition order for the property. After the hearing, the City sent the property owners a notice via certified mail stating the property owners had 30 days to correct the code violations or else the City would demolish the property. The U.S. Postal Service again returned the notice as “Not Deliverable.” 

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orange-and-gray-painted-roof-under-cloudy-347152-1024x684There’s a general understanding between a buyer and a seller that the seller will provide the good in an acceptable condition for a buyer. If the product is faulty, then the general understanding is that the seller will take responsibility for making things right as soon as they can. This is even solidified by warranties. What happens, then, when a construction company sells a New Orleans resident a roof that leaks so much it leads to a man slipping and falling? Is the danger created by the leak so obvious that the construction company shouldn’t be held liable for the injury?

This problem arose when Magnolia Roofing and Exteriors (“Magnolia”) installed a new roof at the home of Tammy Stewart. Ms. Stewart was never completely happy with the quality of the roof when it was installed in September 2011, but significant leaks didn’t appear until January 2013, a few months after Hurricane Isaac wrecked New Orleans. The leaks were so bad that water came through her second-floor attic, through the ceiling, and trickled down the chandelier in her foyer. Magnolia’s parent company, Sears Home Improvement Products, sent repairmen to look at the damage a few days later. Ms. Stewart was at work so her friend, Glenn Jones, let them in to the attic to see where the leak was. The attic was consistently described as “unfinished, unlit, [and] wet.” Since the attic was unfinished and without light, Mr. Jones was standing on a crossbeam between the sheetrock and using his cell phone for light. When he turned around to show the worker where the leak was, he slipped and fell 16 feet through the sheetrock into the first-floor foyer. Mr. Jones sustained multiple serious injuries as a result and brought a case of negligence against Ms. Stewart and Magnolia.

The core issue of this case before the Louisiana Fourth Circuit Court of Appeals was the open and obvious doctrine. If it is plainly clear to everyone that a danger exists, then a defendant is not liable for an injury that occurs. The defendant must show that the danger is open and obvious to benefit from this legal doctrine. See Scarberry v. Entergy Corporation, et al., N.V., 136 So.3d 204 (La. Ct. App. 2014). Magnolia claimed the wet crossbeams were a clear and obvious danger; the trial court agreed with them on summary judgment and found them not liable. The trial court explicitly limited the entire review of Magnolia’s petition to this one issue, so the Fourth Circuit did the same. See La. C.C.P. art. 2164. Mr. Jones refuted this claim by saying that the darkness of the attic was the obvious danger, not the wetness of the beams, and the darkness did not cause the injury, so Magnolia could be liable.

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architecture-brick-building-construction-259957-1024x667It is difficult to fully know and understand the law. This is why lawyers attend law school for three years, and then complete continuing education for the rest of their careers. Many times a party to a lawsuit will try to carry on without a lawyer, but the unfortunate truth is that this can actually lead to more headaches and financial woes than expected. 

In Iota, Louisiana, a woman was allegedly blind-sided by eviction. An unemployed single mother, Erica Scott was accustomed to paying her rent a few days late from time to time. But her apartment company, Southern Apartments, owned by MAC-RE, LLC, had changed their payment policy. Although they kept the first-of-the-month due date and 10-day grace period, they declared that any tenant who has not paid rent by the 11th day of the month will automatically have his or her lease terminated and eviction procedures would begin. The manager of Southern Apartments, Sherry Hebert, went door-to-door with a memorandum stating this change, either handing it to those who answered their door, or leaving it with a note requesting that tenants come to the office to sign. Ms. Scott alleged that she never received this notice, and attempted to pay her rent to Ms. Hebert on the 13th of the month. This payment, however, was refused, and Ms. Scott was given five days to voluntary vacate her apartment. 

Ms. Scott did indeed find a new residence at the end of the month and began to move her things. However, when she returned on the 6th of August, she stated that her locks were changed. Ms. Hebert disputes this, as she was personally unable to do change the locks and the maintenance man was on leave. Ms. Scott declared that $20,000 worth of property remained in the apartment, but Ms. Hebert disputed this as well. She states that when she went in to survey the property, all that remained was garbage, rotting food, broken toys and furniture, an old mattress, and dirty dishes. 

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apartment-architectural-design-architecture-1693946-1024x736Lease agreements are important documents that specify the rights and obligations of both lessor and lessee. Specifically, termination of leases must follow specified procedures and the tenant must be given adequate notice before leases can be terminated. That being said, does a letter from the lessor to the lessee constitute proper notice for termination of a lease? The Fourth District Court of Appeals of Louisiana recently held that a tenant was not given proper notice for termination of his lease and therefore, the termination was not valid.

In the aftermath of Hurricane Katrina, Kenneth Lobell, plaintiff, suffered extensive damage to property that he leased from Cathy Rosenberg and 2025 Canal St., L.L.C. On December 28, 2007, Rosenberg sent a letter to Lobell stating that he had defaulted on certain lease payments for a three-story building located on 2025 Canal Street. Rosenberg subsequently sent letters on January 31, 2007 and February 12, 2008 regarding these defaulted payments. The letters also stated her desire to terminate the lease. After a bench trial, the trial court judge held that there was a proper termination of the lease and Mr. Lobell owed certain costs and back payments to Rosenberg and 2025 Canal St., L.L.C.

The Fourth District Court of Appeals of Louisiana disagreed with the trial court and held that the lease was not properly terminated. Because leases are contracts between lessor and lessee, they afford certain rights and obligations to each party. See La. C.C. 2668. Lessees must pay rents for the property according to the terms of the lease agreement, among other obligations. See La. C.C. 2683. When a lessee does not pay rent, a lessor has two options: 1) obtain a money judgment based on the amount owed or 2) cancel the lease. See Richard v. Broussard 495 So.2d 1291, 1293 (La. 1986). To terminate a lease, the lessor must follow specific eviction procedures. These procedures include giving a five-day notice to vacate, followed by judicial procedures to effectuate an eviction. See La. C.C.P. art. 4701; see also La. C.C.P. 4731; see also La. C.C.P. 4733.

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farm-track-1375641-1024x683The transfer of property can create many legal pitfalls for clients. In this case, the plaintiff, Willow Chute Farms L.L.C, (“Willow”) based in Bossier Parish, alleged that the transfer of a right of way to the defendant, George McLemore (“McLemore”), was defective. The issue arose due to a 1984 agreement from prior owners of the properties that stipulated a set boundary between the two portions of land. In this agreement was a right of way, or servitude, which permitted the defendant, Mr. McLemore, to use the plaintiff’s gravel road to access his own land. So, how can you make sure your property line and your drive way are protected?

In November 2012, the McLemore’s acquired property adjacent to Willow Chute Farms by a cash sale deed. The deed stated that the property was conveyed “together with all and singular the rights of way, servitudes, easements, appurtenants, pertaining thereunto … unto Buyer and Buyer’s heirs, successors and assigns forever.” The servitudes and rights of way to the property were described in the original 1984 deed of transfer with the specific provision that the deed “reserves unto himself, his heirs and assigns, a right of way, and or servitude, for purposes of ingress or egress across the [.31 acre triangular tract of land].”

Later in 2012 and into 2013 Willow filed two lawsuits: (1) alleging that the servitude, or right of way, had not been in use by McLemore for more than 10 years; and (2) that the property line should be adjusted to reflect the old fence line. To justify the second suit, Willow alleged that the old fence had separated the two tracks of land for more than 30 years, and its “ancestors in title maintained continuous, uninterrupted, peaceful, and public possession up to the fence line for more than 30 years.” The trial court consolidated these two cases into one.

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utility-truck-1239978-1024x446Property owners have a duty to keep their property safe against unreasonable risks of harm to those who are invited onto the premises. However, if a potential risk is “reasonable” is a matter of debate. If the hazard in question is obscured, the owner may be liable. But if the hazard is glaringly obvious, it may be the fault of the injured party. The discourse as to what constitutes “open and obvious” is at the heart of this case.

Virgil McCoy was a Cleco employee doing some routine maintenance on an electrical meter in Rosepine Apartments I when fate struck. In an effort to access the meter, McCoy had to walk a narrow path behind a row of overgrown bushes and stand precariously close to an uncovered water meter just to begin the repairs. As he worked, his left foot slid backward and he fell into the hole where the water meter sat. McCoy, and his employer Cleco, filed a lawsuit against Rosepine Seniors Apartments Partnership, their insurers, the property managers, and even the Town of Rosepine, for liability for McCoy’s injuries (collectively called “Defendants”).

The Defendants countered by claiming the hazard the meter presented was “open and obvious,” and McCoy should have been aware of the danger. They moved to have the case dismissed by filing a motion for summary judgment. Summary judgment is when the court decides for one party without a full trial. When the court examines all the information submitted for trial up to that point, e.g. the complaint, the defendant’s answer, items procured in discovery, affidavits, depositions, etc., and finds there is no genuine dispute of fact between the parties, summary judgment is entered. La. C.C.P. art. 966. The one who bears the burden of proving there is no dispute is not so clear-cut. One thing to note is that the party filing the summary judgment motion does not need to show all the elements of the other party’s case are insufficiently proven, but only that one or two elements cannot be met with the evidence presented. The burden then shifts to the other party to show those elements can be met. According to Defendants, McCoy’s complaint failed to meet one particular element of La. C.C. art. 2317.1: whether the hazard presented an unreasonable risk of harm. The Defendants succeeded in their motion, and the trial court dismissed the case via summary judgment.

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