Articles Posted in Real Estate

They say that “good fences make good neighbors.” In a case recently heard by the Rhode Island Superior Court, the fence was part of the problem. This case illustrates many of the concepts of real estate law, although of course only your experienced Rhode Island real estate attorney can tell you how the law will apply in your specific circumstances.

The Facts of the Case 

The parties are feuding over the use of an 18 foot right of way easement. An easement is the legal entitlement of one party to access the property of another. Generally, an easement is granted when it is impossible for a party to get to a road without traveling on the property of another.

Here, the plaintiff and the defendant both live in the same subdivision that was originally owned by a couple and then sold to a developer. All of the lots abut the road, but due to the conditions of the land, some of the residents had to access a road via an easement. This includes the “Lot 3” residents. They have a half circle driveway that connected to the disputed property. After the Lot 3 residents had lived there for about a year and a half, the “Lot 4” residents put up a fence and other barriers that blocked off access to the disputed area. This required people using Lot 3’s driveway to only have one way in and out and now busses, including the bus that picked up the resident’s disabled child, to turn around on a steep hill.

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Adverse possession is a real estate concept under which one party can take ownership of the land that another person owned by occupying it for a certain amount of time and meeting certain criteria. Adverse possession allows the person who is actually occupying the property to have official ownership after a period of time. It also gives landowners an incentive to keep an eye on their property and eject anyone who should not be there. If you are concerned about a piece of property that you own, you should contact a knowledgeable Rhode Island real estate attorney to help you understand your rights to the property.

Adverse Possession 

In order to prevail on an adverse possession claim, a plaintiff must prove all of the elements by clear and convincing evidence. The requirements for adverse possession are that the possession of the property is actual, open, notorious, hostile, under claim of right, continuous, and exclusive. What this means is that the party that is trying to assert a claim to the land through adverse possession must treat the property as their own, without the permission of the original owners of the property. They also need to be continually occupying the property for 10 years. Once the plaintiff has proven that they have fulfilled these requirements, the court can officially grant them the property.

Earlier this year, the Rhode Island Superior Court upheld the denial of an application for a development in Tiverton, Rhode Island. The developer applied to the Town of Tiverton zoning board to ask permission to develop property. The proposed plan was to construct over 240,000 square feet of mixed use development, which potentially included retail spaces, restaurants, office space, and other kinds of spaces. The application, submitted in 2008, was rejected as incomplete due to the developer not completing the requirement to have a “pre-application meeting.” After the Tiverton Zoning Board denied the application, the plaintiff appealed to the Board of Appeals, who affirmed the decision of the zoning board. The case was then heard by the Rhode Island Superior Court, who affirmed the denial. If you are thinking about real estate development or other real estate matters, it’s crucial that you hire an experienced Rhode Island real estate attorney. A knowledgeable real estate attorney can save you money and headaches by making sure that you follow the correct protocols so that your application does not get rejected for being incomplete, as happened here.

Application Protocols

If you are looking to undertake a major development in Rhode Island, this case underscores the importance of crossing your “t”s and dotting your “i”s. When the developer in this case filed his application in 2008, it was just as the town of Tiverton was planning zoning changes in compliance with their community plan. The proposed changes would have changed the property at issue from commercial property to residential property with minimum lot sizes of 40,000 square feet. Since this change was anticipated, it was important that this 2008 application was approved for the development to take place rather than starting a new application.

The Rhode Island Superior Court recently issued an opinion regarding a Rhode Island real estate construction contract. Following the jury-waived trial on February 2, 2018, each side submitted post-trial memoranda to the Rhode Island Superior Court for decision. The court issued partial judgment in favor of the  plaintiff on February 19, 2018.

In 2008, defendant was constructing a building in North Providence when disagreements with the contractor resulted in the contractor ceasing performance. Defendant contacted a principal of plaintiff-corporation to coordinate the completion. The principal referred the matter to a vice president, who handled ongoing negotiations with the defendant.

While there was some discussion of having the  plaintiff serve as a general contractor, the defendant had already enlisted certain subcontractors, and some work had already been performed. After negotiations between the parties, the vice president suggested that the principal serve only as the construction manager. He drafted a contract. Although the defendant signed the contract, the contracted party was listed as Branting, LLC, which the court inferred that the defendant controlled for his construction. The agreement was an American Institute of Architects form contract for Construction Management dated July 15, 2008 with various exhibits attached.