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LAWSUIT WITH A LOT OF BITE

real-estate-alligator-lawsuit-drizin-law-blogIn the spirit of the impending holiday I thought I would share with you the story of Tom and Consandra Christmas who purchased 35 acres in Louisiana in 2003.  Next door to the Christmases’ property was a refinery waste disposal site owned and maintained by ExxonMobil. The company had shipped refinery waste to the site from Louisiana beginning in 1980. The site stopped taking waste in the 1990s. Exxon bought the property in July 2001. The Christmases said they were unaware of the nature of the site next door when they purchased their property.

Court documents show the property had 19 rainwater retention ponds, totaling about 85 surface acres of water. Alligators were allegedly introduced to the site from Louisiana as early as 1984 as “canaries” to warn of hazardous contamination in the retention ponds. Exactly who put the reptiles there is a matter of dispute.

The Landowners contend they had seen an occasional alligator but didn’t learn where they were coming from until 2007 at which time their property had become infested with approximately 86 alligators.  The Christmases sued Exxon in August 2008, seeking damages for permanent depreciation of their land. Circuit Judge Lillie Sanders threw out the lawsuit in 2011 on the basis that the statute of limitations had expired by the time the lawsuit was filed.  Exxon maintained that the Christmases real estate agent advised them about the alligators before they first acquired the Property.

The Appeals Court has reinstated the lawsuit.  The Judge noted that the occasional citing of an alligator would not put someone on notice about an infestation.  The Appeals Court has remanded the matter for a determination of when the Owners should have reasonably known about the infestation since this is the event which triggered the statute of limitations.

The Christmases are prohibited from simply killing the animals that are making their way onto the Property.  The American alligator is federally classified as “threatened due to similarity of appearance” to other endangered and threatened crocodilians. This provides federal protection for alligators but allows state-approved management and control programs. Alligators can be legally taken only by individuals with proper licenses or permits. Florida, Louisiana, Georgia, South Carolina, and Texas have problem or nuisance alligator control programs that allow permitted hunters to kill or facilitate the removal of nuisance alligators. Lawsuits that arise from findings of negligence on the part of a private owner or governmental agency responsible for an attack site can lead to significant economic liability.  In Florida, approximately 15% of the alligator complaints are due to fear of pet losses and, to a lesser extent, livestock losses.

PRACTICE POINTER (by Nevada Real Estate Attorney Lee Drizin)The real estate agent was not brought into the lawsuit but this is a good reminder of the duties owed to clients when we have knowledge of potential issues that could interfere with the Buyer’s use of the property (known as a “nuisance”).  NRS 645.252 requires a licensee to disclose any material and relevant facts about the property which he/she knows or should have known through the exercise of reasonable care and diligence.  Granted, we are not going to see many alligator infestations in Nevada but let’s suppose the Seller indicated they saw the occasional brown recluse spider.  As the Appeals Court Judge noted, an occasional pest does not an infestation make.  However, if an agent became aware of the spiders, it would certainly be reasonable to inquire how many, if a nest has ever been located, have they ever been observed in the home, etc.  Based upon these answers, you may find it is appropriate to advise the Seller that the issue should be disclosed on the Seller’s Real Property Disclosure Form.  Remember, you should always err on the side of caution and DOCUMENT your recommendations to the client.

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