Berger v. Sellers

Citations

• 2023 ND 171

Syllabus

A planned unit development is a form of zoning ordinance which is interpreted under rules of statutory construction. Where an incorporated reference is subsequently modified or repealed, that change does not alter the meaning of the law incorporating that reference. A party is not required to exhaust administrative remedies prior to suit when the issue concerns the interpretation of an unambiguous statute and does not need the exercise of an agency's expertise in making factual decisions. The interpretation of a restrictive covenant is generally governed by rules for interpretation of a contract. Restrictive covenants will be given full effect when clearly established. Whether a fiduciary relationship exists is generally a question of fact, dependent upon a showing of special circumstances. Violating a requirement in the planned unit development or restrictive covenants constitutes an \unlawful\ act for purposes of a statutory private nuisance claim. Homeowners do not have a right to sunlight and open space on adjacent properties. Conduct that constitutes a breach of contract does not subject the actor to an action in tort for negligence, unless the conduct also constitutes a breach of an independent duty that did not arise from the contract. Section 9-10-01, N.D.C.C., codifies the general duty of care to abstain from injuring property or infringing upon rights. Neighbors who are members of a homeowners' association owe each other an ordinary duty of care. A homeowners' association owes homeowners reasonable care in approving construction plans. The fact finder determines how a reasonable homeowners' association would act under the circumstances and whether the association exercised reasonable care in performing its duties. Generally, a contractor is relieved of liability if he followed the contractee's plans or specifications which were defective or insufficient, and the defect or insufficiency caused the damage. Slander is a false and unprivileged publication othe