Is a two-family home considered a residential property when an owner rents one of the units but lives in the other? Is a strip of concrete abutting the property considered a sidewalk when the area is used for parking? Is this all just a matter of semantics or does it actually make a difference how something is characterized? In New Jersey, how a property and its abutting features are defined is critical in the area of premises liability. Ultimately how something is named may mean the difference in whether a claim has a legal basis or not.

This case study focuses on an unfortunate fall suffered by our client when she stepped into a cut-out at a concrete area in front of a two-family home. The property itself consisted of a single structure with two separate family units. One of the units was rented by a long-time tenant with the other being occupied by the owner. Along the front of the property existed a concrete strip roughly the width of a neighborhood sidewalk. This concrete strip ran parallel to the street and along the entire length of the property. Investigation revealed that the cut-out was created several years before at the direction of the owner to address a sewer line. While it was disputed whether the cut-out was filled and then settled overtime due to weather changes, historical photographs of the property clearly depicted that the cut-out existed in its same or similar form for a number of years prior to our client’s fall.

The original owner passed away prior to the fall and the property ultimately transferred to his children. Initially, the children all shared their parent’s unit equally using it as a second home of sorts. The other unit continued to be rented to the long-time tenant. Eventually, one of the children came to reside at the property on a permanent basis prior to the fall. At the time of the fall, all of the children owned the property equally, with one of the children occupying a unit on a full-time basis and the other unit continuing to be rented to the long-time tenant.

The defendant owners argued that the property was residential despite the fact it was being partially rented. They argued that it was an owner-occupied rental property which deemed it for purposes of legal liability a “residential” property as opposed to a “commercial” property. The defendant owners further argued that the concrete strip along the front of the property was a “sidewalk”. As such, the defendant owners argued that as an owner-occupied rental property, they had no duty to maintain or repair a damaged sidewalk abutting the property, and therefore could not be liable for our client’s injuries.

The attorneys at Petro Cohen, P.C., took the position that the property was not “residential” despite the defendants’ contention that it was an owner-occupied rental property. Rather, Petro Cohen, P.C., maintained that the property was “commercial” as it was income producing. In addition, Petro Cohen, P.C., argued that the property was not owner-occupied as only one of the owners occupied the property. This distinction was important as owners of a residential property enjoy immunity for defects in abutting sidewalks where generally commercial owners do not. We further argued that the concrete strip along the property was not a “sidewalk” but rather a “parking pad” as it was typically used to park cars. Finally, we argued that even if the property was to be considered “residential” and even if the concrete strip was to be considered a “sidewalk” the defendants’ created the dangerous condition when the cut-out was made several years before which would otherwise eliminate the residential-sidewalk immunity otherwise afforded.

In New Jersey, owners of a residential property typically will not be held liable for conditions of an abutting sidewalk. This would include normal settling, raising or weather related defects experienced by the sidewalk. On the other hand, commercial owners have a duty to maintain sidewalks abutting their property and can be held liable to those injured by defects of the sidewalk. For these purposes, owner-occupied rental properties are generally considered “residential” but may be considered “commercial” depending on the extent that the property is income producing. Of course, this also depends on whether the area affected is in fact a “sidewalk” which generally implies a means of ingress or egress, or access, to the property. In either instance, where the defect is created by the owner, the owner of the property, whether residential or commercial, may be liable to an injured person.

This matter presented a factually sensitive case embroiled with competing legal arguments. It was against this backdrop that the parties agreed to mediate the case while the matter was scheduled for trial. With the assistance of a retired Superior Court Judge, Petro Cohen, P.C., was able to secure a significant settlement on behalf of our client despite the legal challenges presented.

The attorneys at Petro Cohen, P.C., are skilled in the area of premises liability and recognize the importance of viewing a case beyond the traditional definitions of a particular property or area. What’s in a name is often the deciding factor in whether a claim will result in a meaningful recovery or no cause of action.