Serge and Nancy Nostin v. Joan Fitzgerald Real Estate, Ltd., et al.

"Jury: Realtor not negligent in land mixup in S-burg

Andrew Scott

Pocono Record Writer

October 06, 2006

STROUDSBURG - A Monroe County jury Thursday ruled a real estate agent should have checked and told a couple that their property was actually smaller than initially thought, but said the agent's negligence did not cause the couple any financial loss.

Serge and Nancy Nostin of East Stroudsburg bought their new Spangenburg Avenue home in December 2004. The Nostins said Joan Fitzgerald Real Estate, Ltd., agent Sharon Lightfoot-Wade led them to believe their property was one lot stretching all the way down a hill to the road.

In reality, the Nostins' property Lot 32 is flag-shaped, with the driveway or "pole" leading uphill from the road to the rectangular "flag" portion on which their house sits. Between the flag portion and road is a separate property Lot 29 the couple later learned they don't own. A house for another owner has been built on Lot 29 within the past two months.

"We've suffered a loss in our privacy, our quality of life and our property value with this new house now in front of us," Nancy Nostin said. "We no longer have the room to build a play area for our 7-year-old daughter. Our house is worth less than what we bought it for because you can no longer see it from the road with this other house blocking the view."

Serge Nostin said, "It's all because Ms. Wade never told us at the start that the lot in front isn't ours. We trusted her."

The Nostins moved from New Jersey and bought their home for $250,000 as valued by real estate appraiser Andrea Lynch in December 2004, putting down a $25,000 deposit. At the time, the area between their house and the road was vacant.

In February 2005, Serge Nostin for personal reasons listed the house for sale over his wife's objections. One prospective buyer reportedly offered to pay $279,000 for the house, more than what the couple had paid.

That April, the Nostins got estimates from different contractors to clear and landscape the area between the house and road. The couple decided to go with one contractor who charged $52,000.

They were about to hire that company when a prospective buyer's agent told them the area between the house and road was a separate lot for another owner. The couple contacted Wade to find out what was going on.

"She said, 'I'm so sorry,'" Serge Nostin testified. "She said, 'This is the first time in my career I've made such a huge mistake. Don't worry. I'm going to do everything I can to get you out of that house.'"

Wade said she disclosed the information to the Nostins concerning their property, Lot 32, as given to her by the previous owner's agent who was not called as a witness. She said that information mentioned nothing about any other lot or where Lot 32 begins and ends.

"Ms. Wade at that point should have checked into the dimensions and boundaries of Lot 32 and any neighboring lots and relayed those details to the Nostins," said the couple's attorney, Edwin Krawitz of Stroudsburg.

Wade's attorney, Paul Laughlin of Bethlehem, cited the buyer-broker agreement the Nostins signed in October 2004, six days after Wade gave it to them to review.

The agreement states it was not Wade's duty as the broker to appraise or survey the property for dimensions and boundaries. It states it was the Nostins' responsibility as the buyers to know their lot dimensions and boundaries.

When asked if they read the agreement in the six days prior to signing it, the Nostins did not give a clear answer. They said Wade rushed them and gave them no time to read it on the day they signed it. Wade denied this.

"When they contacted me after finding out about the separate lots, I never said it was the first time I'd made such a mistake," she testified. "I said it was the first time I'd ever come across a situation like this."

An attorney from the Cramer, Swetz and McManus law firm in Stroudsburg was supposed to represent the Nostins at their December 2004 closing, but was not present. The Nostins said Wade told them she would inform the attorney of the closing date, but Wade denied saying this.

Roberta Marsh, president of American Abstract Title Company where the closing took place, said the attorney's office is within walking distance of the title company. Marsh said the Nostins could have contacted the attorney to walk over to the closing, but didn't seem concerned.

Laughlin pointed also to the fact that the Nostins haven't suffered a financial loss, but in fact have experienced a gain in their property value. Lot 32 is now valued at $300,000 while Lot 29 is valued at $61,000, according to testimony from real estate appraisers Lawrence Cacia and Robert Jones.

"The Nostins could have sold their home for a profit at any time," Laughlin said. "They could have bought the lot in front, made it part of their property and sold an even larger property for more money. They didn't.

"The fact that they didn't sell and are still living there speaks volumes," he said.

After a two-day trial followed by almost two hours of deliberation, the jury reached a verdict finding Wade negligent, but saying the Nostins suffered no loss as a result."

Click the title of the article above for the original of this article if it is still available online.