January 18, 2011

There Goes the Neighborhood

On its face, this is one of the stories (via) that seems so silly and petty that it hardly needs lengthy discussion.

Apparently, the University of British Columbia owns some fairly swanky condos - purchase prices run into seven figures. It is planning to build a 15-bed hospice facility next to one of those condos. No big deal right? Au contraire:
'We cannot have dying people in our backyard,' said rally organizer Janet Fan, Wednesday. 'It’s a cultural taboo to us and we cannot be close to so many dying people. It’s like you open your door and step into a graveyard.'

* * *

Residents wrote a letter Jan. 9 to Jan Fialkowski, executive director of the University Neighborhood Association, (UNA) saying they feel a hospice is the equivalent of a funeral home or crematorium.

''Death' is the Yin and 'Live' is the Yang,' it read. 'If the Yin and Yang are near to each other, ‘Death’ will bring bad luck, meaning sickness and even death . . . The ghosts of the dead will invade and harass the living.'

The letter said Asians believe that living next to 'death' would 'lead to failure of business, the loss of money, the break of marriage and family, and the healthy growing up of children will be affected.'
Of course, that's a silly superstition and no more grounded in reality than fear of the number 13.  The fact that it had deep roots in Asia and is prevalent in an immigrant community makes for interesting anthropological or sociological analysis, but doesn't improve its veracity. It's also incredibly selfish when applied to a hospice - talk about people who can't fight back.  Besides, does anybody honestly believe nobody has died in or around that high rise?

That being said, one statement from a resident resonated a little bit with me:
Qing Lin, who bought a Promontory apartment for $900,000 almost a year ago, said she and her seven year old daughter will have nightmares if the hospice goes ahead.

'We believe that people dying outside will bring us bad luck,' she added. 'I’m very angry and upset. If I had known it was going to be a hospice, I wouldn’t buy it for half the price.'
Assume for a moment that she is sincere.  Should her honest statement that she wouldn't pay the same price for her home if a hospice moved in next door because of the ghost problem completely out to lunch, legally thinking?  Not as much as you might think.

One of the gold standard cases for property classes in law school is Strambovsky v. Ackley, decided by a mid-level New York appellate court in 1991.  The case involved a home buyer who sought to nullify the contract of sale and get the down payment back from the seller.  Why?
Plaintiff alleges that Ackley and her real estate broker, defendant Ellis Realty, made material misrepresentations of the property in that they failed to disclose that Ackley believed that the house was haunted by poltergeists. Moreover, Ackley shared this belief with her community and the general public through articles published in Reader's Digest (1977) and the local newspaper (1982). In November 1989, approximately two months after the parties entered into the contract of sale but subsequent to the scheduled October 2, 1989 closing, the house was included in a five-house walking tour and again described in the local newspaper as being haunted.
That's from the dissent, but it's a more straightforward recitation than the majority's too-cute-by-half opinion.  So, you've got someone who contracts to buy a house (closing was pending) when he discovers the prior owner promoted it as being haunted.  Buyer wants out.  What did the court do?

The trial court did what most folks would consider common sense and, essentially (I'm paraphrasing a Bloom County here), told his bailiff to kick these two nuts in the ass.  But that decision was reversed on appeal.  Why?
Whether the source of the spectral apparitions seen by defendant seller are parapsychic or psychogenic, having reported their presence in both a national publication (Readers' Digest) and the local press (in 1977 and 1982, respectively), defendant is estopped to deny their existence and, as a matter of law, the house is haunted.
In other words, you can't go around promoting your house as haunted and then hide behind reality when the spectral shit hits the paranormal fan.  The major difference between that case and the UBC condos is that the buyer in Strambovsy doesn't appear to believe in ghosts, but is worried about knock-on resale value, while Qing Lin and her fellow tower dwellers appear to believe.  Regardless, it goes to show that when it comes to ghosts, the law isn't quite as clear as you might expect.

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