FOUNDATION v. FOUR TWENTY CORP.C.A. No. WC11-0154.
ROSE NULMAN PARK FOUNDATION By Its TRUSTEES, CAROL B. NULMAN and JOEL S. NULMAN Plaintiff,
FOUR TWENTY CORP. and ROBERT C. LAMOUREUX Defendant.
FOUR TWENTY CORP. and ROBERT C. LAMOUREUX Defendant.
Superior Court of Rhode Island, WASHINGTON, SC.
Filed: September 11, 2012.
On June 21, 2012 this Court held a preliminary injunction hearing regarding the unfortunate situation where a property owner built a home valued at almost One Million eight hundred thousand dollars (1,800,000) entirely on his neighbor's property, which is a park on the ocean for public use. The neighbor now seeks to have the house moved from the property. After considering the evidence, the arguments of counsel, and the legal memoranda submitted, this Court makes the following findings of fact and conclusions of law.
FACTS AND TRAVEL
In 1984, Robert Lamoureux ("Lamoureux") purchased a parcel of land on Ocean Road in Narragansett, Rhode Island. Thereafter, in 1987, Lamoureux hired ERA Engineering to prepare a subdivision plan to obtain approval to subdivide the parcel into two parcels. Lamoureux retained ownership in one of the parcels, located at 1444 Ocean Road, Narragansett, Rhode Island. In 1993, Saul Nulman acquired another parcel, (the "Nulman Property"), located at 1460 Ocean Road, Narragansett, Rhode Island. The Nulman Property immediately abuts 1444 Ocean Road.
In 2004, Saul Nulman conveyed the Nulman Property to Ocean Road Realty, LLC. Subsequently, in 2007, the Nulman property was transferred to the Rose Nulman Park Foundation (the "Foundation"). The Foundation was established under a Declaration of Trust (the "Declaration"), dated June 16, 2006, by Saul Nulman and Glenda F. Kirby. The Declaration sets out the primary purpose of the trust as to:
As prescribed by a Settlement Agreement and General Release ("Settlement Agreement"), Carol Nulman and Joel Nulman have succeeded their father and Glenda Kirby as Trustees of the Rose Nulman Park Foundation. The Declaration prohibits the trustees from disposing of the Nulman Property in any manner unless "the trustees have ensured that the Nulman Property will continue to be maintained and preserved for the Designated Use in perpetuity." Furthermore, the Settlement Agreement imposes a $1.5 million penalty to the trustees, payable to New York Presbyterian Hospital, should they, "permit the park to be used in any manner other than the Designated Use." There is one exception to this penalty. In the event of changed circumstances pursuant to the doctrine of cy pres, the Trustees will not be required to make payment if a court determines that the Nulman Property can be put to uses other than the Designated Use, consistent with the intent of the Trust, and so long as notice and opportunity to be heard is afforded to the New York Presbyterian Hospital.
In 2009, Lamoureux conveyed 1444 Ocean Road to Four Twenty Corporation ("Four Twenty"), a Rhode Island corporation. At all relevant times hereto, Lamoureux has been the owner, principal, officer and employee of Four Twenty, a corporation in the business of purchasing, holding, developing and selling real estate. The Defendants applied, and were granted, the municipal and state permits necessary in order to build on the Four Twenty Property. In 2010, relying on plans and a survey prepared by Carrigan Engineering, Four Twenty built a 2,400 square foot, three bedroom residence, a septic system, and substantial portions of a driveway (the "Structure") on what the faulty plans and survey revealed to be part of the Four Twenty Property. In 2011, Four Twenty entered into a purchase and sale agreement to sell the Four Twenty Property and the Structure to a third party for approximately $1,800,000. However, before the transaction was completed, the third-party purchaser commissioned a Class I survey to ensure the marketability of the property. The results revealed that the Structure was not located on the Four Twenty Property, but rather it rested entirely on the Nulman Property. Consequently, the third party terminated its agreement to purchase the Four Twenty Property and the Structure.
In early 2011, Carol Nulman, via a phone conversation and subsequent meeting with Lamoureux, became aware that the Structure had, in fact, been built on the Nulman Property. Ms. Nulman told Lamoureux that the Nulman Property was not for sale and that the Structure would have to be removed. As a result, this suit for mandatory injunction was filed by Plaintiffs on March 11, 2011, and a preliminary injunction hearing was held on June 21, 2012.
Statutory Provisions Regarding the Transfer of Property Ownership
One acquires real property in hopes of being able to fully enjoy its benefits. To some, the benefits associated with ownership include shelter, privacy and protection; while to others property ownership may serve as a financial benefit. When drafting the Declaration of Independence, many of the Founders believed that the "guiding principle was that people come together to form governments in order to secure their rights to property—not to create an entity which will, itself, `take from the mouths of labor the bread it has earned.'" W. David Stedman & La Vaughn G. Lewis,
Undoubtedly, since the initial ratification of the Constitution there has been many amendments made changing its actual content. In the past one-hundred years alone, the United States of America has amended its Constitution, thereby implementing changes ranging from the prohibition of slavery to the ability of women to vote. One of the most substantial constitutional changes regarding property rights is prescribed by the Fifth Amendment, passed in 1791 which states, "no person... shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation." Similarly, the Constitution of the State of Rhode Island and Providence Plantations, adopted in 1843, echoes this ideology in Article 1, Section 2, which states, "no person shall be deprived of life, liberty, or property without due process of law." R.I. Const. art. I § 2.
In accordance with the Constitutions, both the Rhode Island and Federal governments have set forth very few statutory provisions through which an owner of real property may be forced to relinquish their ownership rights. For instance, both the United States Constitution and the Rhode Island Constitution explicitly prescribe a municipality's ability to transfer land ownership rights through the process of eminent domain. Eminent domain is "the power of the State to take private property for public use...It is a right founded on the law of necessity which is inherent in sovereignty and essential to the existence of government."
The Rhode Island Constitution echoes this sentiment in Article 1, Section 16, stating that "private property shall not be taken for public uses, without just compensation." R.I. Const. art I, §16. Although a state's eminent domain authority is not derived from a specific constitutional grant, its exercise is limited by the United States and Rhode Island Constitution.
Alternatively, the doctrine of adverse possession may also compel an individual to relinquish their ownership rights in property. Adverse possession is a doctrine that allows "the ripening of hostile possession, under proper circumstances, into title by lapse of time." 3 American Jurisprudence 2d §2. Furthermore, "our society has made a policy determination that `all things should be used according to their nature and purpose and when an individual uses and preserves property `for a certain length of time, [he] has done a work beneficial to the community.'"
In the instant case, neither eminent domain nor the doctrine of adverse possession would support the transfer of Plaintiff's property rights, nor has either party made such contentions. Therefore, the court is not able to rely on clearly enacted statutory provisions regarding the mandatory transfer of property rights. Rather, the court must make a factual determination regarding the appropriateness of a mandatory injunction.
As stipulated by both parties, the subject Structure is situated entirely on the Nulman Property, and is not located on any portion of the Four Twenty Property, and that the location of the Structure constitutes a continuing trespass. Understandably, the Defendants placed great emphasis on Lamoureux's hiring of an engineering firm to conduct a survey showcasing his parcel of land. The Defendants had relied on the results of the survey, a right afforded to them after paying approximately $30,000 for such services. However, the Defendants are still responsible for the continuing trespass, as a landowner cannot excuse himself from trespass upon adjoining property by showing that he gave over the location of the building to his builder or independent contractor.
In the case at bar, Plaintiffs are requesting injunctive relief, arguing that equitable relief would be inadequate. Generally, the owner of land is entitled to a mandatory injunction to require removal of a structure that has been unlawfully placed upon his land.
However, the court in
By definition, de minimis is "a fact or thing so insignificant that a court may overlook it in deciding an issue or case."
More recently, the Rhode Island Supreme court dealt with the issue of a de minimus encroachment. The Court in
Another exception to the general rule of mandatory injunctions occurs in cases of estoppel by acquiescence. According to the Rhode Island Supreme Court:
In the case at bar, there was no clear boundary line between the Nulman Property and the Four-Twenty Property. As testified to during trial, at no point during the construction phase of the Structure did any of the parties know that the Structure was being built upon the Nulman Property. Upon the realization that the Structure was on the Nulman Property, Mr. Lamoureux informed Ms. Nulman, who immediately responded that the Structure would have to be removed. Ms. Nulman's instant response to Mr. Lamoureux proves she was anything but silent or inactive. Consequently, estoppel by acquiescence is inapplicable.
Finally, a third exception to the general rule of mandatory injunctions occurs in cases involving estoppel by laches. To warrant a conclusion of laches barring plaintiffs from the remedy that they seek, we must find not only that there have been some inexcusable delay in the assertion of their rights but also that such delay has placed defendants in an unfavorable position.
The case at bar does not meet the necessary standard regarding the exceptions to mandatory injunction. As noted by Justice Silverstein, "[t]he issuance of an injunction and the scope and quantum of injunctive relief rests in the sound discretion of the trier of fact."
The Defendants urge the court to balance the equities in deciding the appropriateness of injunctive relief. Although courts are not obligated to balance the equities when considering injunctive relief, this Court is cognizant of the equitable arguments raised by the Defendants. See
According to the testimony of Robert Lamoureux, the area of land affected by the continuing trespass is only six percent ("6%") of the total Nulman Property. The Defendants argued that 6% is an insubstantial portion of the land, as it did not affect the ability of the Nulman Property to be used as a public park. The mere numerical representation of six percent (6%) may surely represent a very minimal figure in many situations. However, this Court finds the figure to be six percent more than what a landowner in fee simple should be forced to transfer. Although this Court is not obligated to balance the equities when considering injunctive relief, the Court considered the aforementioned factors, the culmination of which indicates the potential sufferance of the Plaintiffs without the grant of injunctive relief.
When the restriction at issue is unambiguous, this court "will not seek ambiguity where none exists but rather we will effectuate the purposes for which the restriction is established."
The mandatory injunction is granted. Mr. Lamoureux shall remove his property from the land of the Rose Nulman Trust. Counsel for the Plaintiffs shall prepare an Order providing for the demolition or removal of the Structure from the subject property. As the demolition or removal will be a complex process, possibly requiring permits and regulatory approvals, the Order shall provide for a reasonable time table, indemnification, and proof of insurance for the period until the house is removed.
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