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Hefazi v. Stiglitz

December 2, 2004


Appeal from the Superior Court of the District of Columbia (CA1781-02). (Hon. Natalia Combs Greene, Trial Judge).

Before Wagner, Chief Judge, Terry and Reid, Associate Judges.

The opinion of the court was delivered by: Reid, Associate Judge

Argued September 23, 2004

Appellants Samad Hefazi and Helga Metz-Hefazi ("the Hefazis" or "appellants")*fn1 appeal from the trial court's order granting summary judgment in favor of appellee Michael Stiglitz ("Mr. Stiglitz" or "appellee") in an easement/party wall property matter, and the denial of certain of their motions, including their motion to vacate the trial court's summary judgment order. We affirm.


The record on appeal shows that three properties in the Northwest quadrant of the District of Columbia -- 2803 and 2805 Que Street, and 1600 28th Street -- "were originally a single unit, built around the turn of the century, with a single heating unit and a single water supply." The single unit was "jointly owned by Mr. and Mrs. Guy Wiggins." Eventually the property was subdivided and one person, Edward L. Beach, acquired all of the subdivided property from Mr. and Mrs. Wiggins on February 20, 1976. At the time of Mr. Beach's purchase, a wall, whose date of construction apparently is unknown, was located between the 2803 Que Street property and the 28th Street property, and there was a window in the west wall of the 28th Street property. After his purchase of the subdivided properties, Mr. Beach constructed two additional windows in the wall. He operated the subdivided property as a single unit, although he rented the subdivided units to different tenants. In a letter of August 30, 1988 to the Condominium and Cooperative Branch of the District government, Mr. Beach noted that "there is a common basement, with only one entry through the rear of 2803 [Que Street], and it is open, without separations, from the east wall of 1600 [28th Street] to the west wall of 2805 [Que Street]."

On September 25, 1989, Mr. Beach sold all of the subdivided property to Mr. and Mrs. Edwin Lim and Mr. and Mrs. Clarence Chiang. The Chiangs acquired 2805 Que Street. Subsequently, the property at 2803 Que Street was sold to the Hefazis on June 15, 1999, and they also purchased the 28th Street property on September 28, 2000. The Hefazis sold 2803 Que Street to James and Patricia Peva on September 29, 2000. In connection with that sale, the Pevas executed a "basement easement" in favor of the Hefazis on September 29, 2000. The basement easement "grant[ed] and encumber[ed] [2803 Que Street] with an easement for the benefit of the owners of the [28th Street property], and their respective successors, heirs and assigns for the purpose of permanently keeping [the single water heater and furnace vents] as joint service to [both properties]."*fn2 "[A] circular chimney flue" which "is entirely on the [2803 Que Street] property" services the 28th Street property furnace. Later, the Pevas sold 2803 Que Street to Mr. Stiglitz.

Mr. Stiglitz decided to make improvements on his property. Three general building permits were issued to him by the District of Columbia government: one on October 19, 2001 for interior work on his home; another on October 9, 2002 to replace windows and doors on his home; and a third permit on January 14, 2002 for an addition at the rear and side of his property. An attorney for the appellants sent a letter to the District of Columbia Department of Consumer and Regulatory Affairs ("DCRA") on December 19, 2001, objecting to work relating to the west wall of the Hefazis' property. The attorney complained that the proposed work "[n]ot only will . . . entail attaching to [the Hefazis'] exterior wall, [but] it also would block the window which currently exists on that side, as well as block a basement area and deny access to the chimney for repairs." The attorney stated the appellants' "object[ion]" to "the granting of any permit which would close off or materially affect the existing window or basement area, or access to the chimney." DCRA temporarily stopped the renovation work on Mr. Stiglitz' property. In a letter dated February 15, 2002, DCRA responded to the attorney's letter of December 19, 2001, indicating in part that the enclosure of the window was proper.*fn3 On February 16, 2004, appellants' counsel again wrote to DCRA, taking issue with DCRA's conclusion that the window in the west wall could be sealed under the District of Columbia Building Code ("BOCA"). Appellants' counsel contended that the BOCA Code did not permit such enclosure of Mr. Stiglitz' renovation project for the following reason:

Unlike other properties to which the BOCA Code may apply regarding openings in party walls, it appears that the opening in this particular party wall was created when the properties were owned by a single owner and more than 26 years ago. Accordingly, at the time of its construction, the opening was not installed in a party wall, but rather as part of a larger, single-family home, with a single owner, built on contiguous lots. I respectfully suggest that this construction and configuration removes this particular party wall from the BOCA provisions and prohibits the closing of the window in question without the express consent of [the Hefazis], which has not been granted.

The letter to DCRA described the window as "a standard double-sash window providing light into the bedroom behind it," and argued that since the west wall "was not a 'party wall' at the time of installation . . . [it] should, and must, be 'grandfathered.'"

On March 12, 2002, appellants filed a lawsuit against Mr. Stiglitz concerning their alleged right of physical access to a chimney flue through an easement allegedly running with the land, and the sealing of a window in the west wall dividing the property of the Hefazis and that of Mr. Stiglitz. The Hefazis maintained that the window "has been in continuous and uninterrupted use for more than 26 years," and "has provided air, light and ambiance to a first floor/sub-basement tenant apartment continuously since on or before February 20, 1976." When Mr. Stiglitz constructed an addition to his house some time around 2002, he enclosed the chimney flue, thus cutting off physical access by the Hefazis, and he sealed the window. Appellants alleged that in doing so, he damaged their property. The complaint also alleged that "[t]he West exterior wall of Hefazi Property extends beyond the East exterior wall of 2803 Que Street approximately 30 feet."

Although appellants attached a September 20, 2000 location survey of 1600 28th Street, N.W. to their complaint, no boundary survey was included which identified the respective boundaries of the Stiglitz and Hefazi properties, nor any plat or survey reflecting the original single unit property owned by the Wiggins prior to the subdivision. In his answer to the complaint, Mr. Stiglitz "admit[ed] that the west exterior wall of the Hefazi property extends beyond the east wall of 2802 [sic] Q Street, but denie[d] that it is 30 feet."

In Count I of their complaint, the Hefazis sought a declaratory judgment "establishing the existence and extent of the easement, and declaring their rights with respect to the window in question." Count II alleged nuisance due to an "intentional, unreasonable, negligent and/or reckless" "invasion of Plaintiffs' interest in the private use of their land and/or the easement." Count III claimed trespass in that "Defendant[] and or [his] agents, contractors, or assigns have entered Plaintiffs' property and/or the easement and have caused a thing or third person to enter said property and/or easement, and/or failed to remove from the easement things they were under a duty to remove." Count IV alleged "obstruction and/or interference with Plaintiffs' easement and/or property." And, Count V claimed intentional infliction of emotional distress because "Defendant's action of obstructing Plaintiffs' use and enjoyment of the easement, after Plaintiffs' objection thereto, and the sealing of the window, despite Plaintiffs' objections thereto, constitute extreme and outrageous conduct which intentionally or recklessly caused Plaintiffs severe emotional distress." In addition the Hefazis sought a preliminary injunction, designed to preclude both interference with their alleged access to the chimney flue, and the sealing of the window in the party wall. They also requested compensatory and punitive damages.

Subsequently, around February 2003, Mr. Stiglitz filed a motion for summary judgment, claiming that the chimney flue issue had been resolved by the parties; asserting that the Hefazis had acquired no easement of air and light by implication or prescription; indicating that the Hefazis failed to show outrageous conduct in support of their claim for intentional infliction of emotional distress; and contending that the Hefazis were not entitled to punitive damages as a matter of law. Attached to Mr. Stiglitz' motion were three exhibits: the September 20, 2000 location survey of 1600 28th Street, N.W. (the Hefazis' property), the February 15, 2002 letter from DCRA Administrator pertaining to permits for the renovation and construction work on Mr. Stiglitz' property, and documents showing work performed on the chimney flue. Mr. Stiglitz filed with his motion for summary ...

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