Disputes between owners or occupants of neighboring properties are quite common, especially in San Francisco and other areas where there is little or no space between adjacent buildings, as well as in condominium developments.
The disputes often arise from construction work on one property which one neighbor objects to because it affects their light, air circulation or views, or because it has created excessive noise, dust, debris etc. or creates a hazard or condition which endangers or affects the reasonable use and occupancy of the neighbor’s property.
Other disputes arise over trees, water drainage, the location of property boundary lines, retaining walls, joint fences, or the encroachment of structures or buildings mainly located on one property across or upon the legal boundary over or onto the other property.
Noise, odors, pollution, and other effects from the unreasonable use of one property or condominium unit frequently might adversely affect or prevent the reasonable use or enjoyment of the neighbor’s property home, or condominium.
While these disputes frequently need to be resolved in litigation, the best practice is for the adjoining or adjacent neighbors to try to resolve the disputes themselves, with or without the assistance of legal counsel.
There are a number of relatively low cost local mediation or neighborhood dispute resolution services which offer neutral third party professionals who can assist the parties in trying to achieve a joint resolution of the dispute, which can then be formally documented by means of a legally binding written settlement agreement.
If there is a concern that the problem is serious, urgent, or that the problems could continue into the future, or affect property values or your ability to sell or rent the property, then negotiation of binding legal Covenants - which can be recorded with the County Recorder, and which can bind and benefit future owners of both properties - may be appropriate. Legal counsel is almost always needed and should be engaged to negotiate, draft , and review these “Covenants Running with the Land”.
If the problem arises within a condominium development, the Homeowner Association’s Covenants, Conditions, and Restrictions (“C.C.&Rs”) may provide a means to attempt resolution of the dispute, whether the problem has been created in an adjacent unit or in the Association’s Common Area. C.C.&Rs frequently contain provisions prohibiting the creation of a nuisance or other problems within the Condominium Development, and may also contain mediation or other dispute resolution provisions. The Association usually has the power to enforce these provisions, but if it fails to do so a condominium owner can usually bring a legal action in Court to enforce the Association C.C.&Rs directly, or seek to compel the Homeowner’s Association to enforce them.
If a Court action is necessary, a lawsuit can be often filed for damages and for a Court order enjoining (i.e., an Injunction ordering the other property owner to cease or stop) the nuisance, trespass, encroachment, interference with use of property, to establish the boundary line or quiet title, and for other claims and relief.
In appropriate or urgent case an immediate Temporary Restraining Order or Preliminary (i.e., pretrial) Injunction can be sought very early in the case, to maintain the peace or prevent further damage or bad acts pending a later trial.
In many cases the Court may require the Plaintiff to post a bond before issuing such an Injunction.
Damages can sometimes be awarded for the loss of use or loss in value of the property, lost or diminished rent, or lost profits in the case of a business property. In extreme cases, punitive damages can be sought, but these are difficult to obtain except in the more extreme or egregious cases.
Where there is an encroachment or trespass onto your property the Court can order the encroachment to removed from the property, define the property or boundary lines, or order the trespass to cease.
Concerns over a proposed or on-going neighborhood construction project can often be addressed early on by a formal written complaint to your local government’s Building, Planning, or Zoning Departments, or by challenging the project or the building permits or rezoning or use permit for such projects before those Departments, or by appeals therefrom, or in a Court challenge to decisions made by those Departments regarding the project.
In these situations it is necessary to familiarize yourself with the local approval procedures for such construction or development projects, and present good factual and legal objections to the project in writing or at hearings to the appropriate government Department as early as possible. Most Departmental decision can be challenged in an administrative appeals process (as allowed by local ordinances), and then in Court, if you have raised the legal objection in a timely manner and have exhausted all remedies before the government Department or agencies, .
In some cases, for example where the improvement would create a nuisance, constitute a spite fence, violate other ordinances or laws, etc., an action for an Injunction can be filed in Court.
Easements, both recorded and prescriptive, as well as implied easements of necessity, often result in disagreements over the existence of, extent of or misuse of the easement, the interpretation of the easement, or whether the easement has been partly or wholly lost due to abandonment or prescriptive use or adverse possession or changes in circumstances.
Noise and tree disputes are often the subject of local City and County tree or noise ordinances, and in some instances the local government Department can assist in their enforcement. Or an independent legal action may be needed to enforce such ordinances.
Often expert reports or testimony are needed to resolve these disputes, whether in mediation, before a government agency, or in Court. Examples of situations where experts may be needed are acoustic or noise experts to objectively measure noise levels, surveyors to locate boundary lines and encroachments or assess drainage issues, arborists in tree disputes, or soil or air sampling to assess pollution, contamination, or mold issues. There are many other situations where you or your attorney may need an expert witness to advise you, to help your attorney, or to testify before a government agency or a Court.
As a general matter, in most cases it is best to try to address problems with adjacent properties or neighbors as early as possible, rather than let them lie and fester, as you could lose your rights if you delay.
Research your legal rights and remedies early, and proceed accordingly, but try to avoid personalizing the issues, losing your temper, or escalating the dispute unnecessarily.
Always be aware that whatever you say or do, or whatever letters or emails you write, might some day be presented or used against you in an administrative hearing or a Court proceeding!
If you are unsure of your rights or about what to do about the problem, or if efforts to try to settle the dispute have been or might be futile, immediately consult experienced legal counsel to discuss your remedies and to advise you on a strategy to promptly address the problem in the appropriate means and forum.
N.B. The contents of this Article do not constitute legal advice or create an attorney-client relationship, and you may not rely on it without seeking legal advice regarding your particular situation and contract from a competent government contracts lawyer or public works contract attorney. Please also note that statutes and case law are frequently changing and these materials may become outdated. For further information on this topic and how the current law may apply to your particular project and issues, Contact Us via email, phone (415)788-1881 or visit our website at www.wolfflaw.com.