 |
|
 |
 |
 |
 |
 |
 |
 |
 Small Claims Special Topics: Neighbor/Homeowner Problems This section focuses on noise, but the principles can often be applied to many types of neighbor irritations such as smells, etc. Noise is a popular problem among neighbors. Can noise be controlled? Noise depends upon a series of facts, such as the time of day, the neighborhood use patterns, the type of noise, the duration of the noise and related factors. A neighbor playing his or her stereo late at night so loudly that you can hear it may be breaching his/her duty as a landowner, or a tenant of a landowner. Additionally, it might be that said person is violating a local ordinance and might be subject to criminal prosecution. Check with the police department or District Attorney's office in your area for such rules, and check to see the attitudes of enforcement. Often, for policy reasons, police departments will not file charges even if a law is broken. Noise such as a stereo late at night constitutes a "nuisance". The general rule is that persons have the right to enjoy their property and not have this right interfered with unreasonably. Thus, loud music during the day may be permissible, while it is not at night. Cutting the lawn or cutting down trees is likely a permissive noise during the day, but not at night. This is true even if you have a special disability or sensitivity to such noise. The standard is generally reasonable noise, based on an objective [not sensitive] person. Children playing or crying is certainly permissible during the day, but there may be limits at night. Predicting the outcome of nuisance lawsuits is tricky. This means that even though some noise irritates you, you must satisfy a judge that your sensitivity is reasonable. Local laws prohibiting certain activities will clearly help your case, if your neighbor is violating one of these rules. But usually, the issues are not so clear. Noise is not the only nuisance. Obnoxious fumes, smoke, paint colors or anything designed to irritate, or which does irritate, neighbors may subject a person to liability for such a nuisance. If you are the person being irritated, it is good advice to have a number of adjoining or close neighbors on your side willing to come to court to testify about the conduct. Of course, if you decide to sue to prevent a nuisance from continuing, be sure to properly prepare your case. Certain nuisances can be controlled by other means. If a neighbor refuses to clean-up their yard, or maintains it in a messy fashion, the City Health Department should be called to investigate for health hazards. But if a neighbor is simply messy, then provided no local laws [such as cars in driveways, etc.] against such mess exist, there is little that judges can do. Judges will respect the rights of a property owner to do with his/her property as they see fit with wide latitude given, so long as laws or nuisance standards are not broken, or dangerous conditions are not created. Points to Remember
Easements This sections deals with general concepts regarding certain rights reserved between property owners. Often, certain rights are reserved between adjoining pieces of property. Most of these rights involve common driveways, easements to walk/drive over land, utility rights, water rights and related rights. You should understand that most easement problems are complicated, and involve a serious and detailed investigation of the facts of each case. It is very difficult to discuss easement law and problems in this forum. Most of the time, you should not attempt to handle an easement problem yourself, but rather discuss this matter with your Plan Attorney. Easements are often some of the most costly lawsuits and as such you should be certain that you are sure of the expenses and time involved in such a lawsuit. Aesthetics or View Blockage Here, the question arises as to what your neighbor can do to his property, if it will block your view. Generally, deed restrictions contain any prohibitions concerning the blocking of a neighbor's view. You must abide by these, and so must your neighbor. If a neighbor takes action which interferes with one of these deeds, or if there are no restrictions, you should consult with your Plan Attorney. Again this may be a time-consuming and costly problem, and negotiation prior to the action taken by a neighbor might result in a compromise with which both parties can live. Trespass Whenever a person steps onto your property without permission [or with no easement, common walkway, utility right of way etc.] that person has committed a trespass. A landowner can always sue a person who trespasses onto their property. Thus, if a person takes one step onto your property, you have the right to sue for damages resulting from the trespass. While a judge may find a way to award you a certain dollar amount because the blades of your grass have been momentarily flattened, most judges will require proof of actual and visible damage. Using a trespass lawsuit to harass your neighbor will not be appreciated by a judge. Thus, it is suggested that common sense be employed here. If a person has driven his/her car through your front lawn after three days of heavy rain, without your permission, you will not have a difficult time proving your damages. Pictures of the gaping ruts in your lawn will usually suffice. But, you must also be prepared to prove to the judge that a person stepped onto your land, and that person caused actual damages to your property. Of course any object or animal controlled by the trespassing person is also that person's responsibility. Trespass lawsuits are often resolved in Small Claims Court, as long as the damages are not too significant and as long as proper proof is brought to court. Points to Remember
Dangerous Conditions This is an area that creates major problems for all landowners, and is an area of increasing liability. The rules of a dangerous condition vary by state. The liability of a landowner who maintains a dangerous condition can be significant. Often, homeowner's insurance can limit one's liability in this area. Because a dangerous condition requires proof of danger, notice or knowledge, is subject to all sorts of rules and precedents, and is constantly being changed, this is an area where you should consult your Plan Attorney, if you are a member, without question. This is true even if your damages may not seem significant at the time. However, assume that you fell into a hole on a person's property and twisted your ankle. Assume that you have a medical bill of $250 and that you will have no further injuries. [Note: Get a specialist to check you, as even a twisted ankle might result in residual injuries, and once you sue and settle, you cannot ever sue again.] We cannot emphasize enough that you should consult your Plan Attorney first in any injuries case, if you are a member. If he/she suggests the case is minor, then you might sue in Small Claims Court. Here, to determine if the landowner is negligent or responsible for your injuries several factors must be determined. First, how close to the walkway was the hole? If it was in the back of the house and you should not have been there, the result might be different from a hole which existed alongside a heavily traveled walkway. If the hole just formed, without the landowner's knowledge, some states will vary on whether the landowner is liable. Also, whether you can recover depends on what you were doing when you were injured. If you were walking on the walkway when you fell in the hole, you have a chance of recovering. If you were riding a unicycle in a walkway reserved for pedestrians when you fell, your chances of recovery may be less. If you have the need to sue in this area and you have already discussed any injury cases with your Plan Attorney, you should research the law of your jurisdiction. [Plan Attorneys may not be able to do this for you, without a charge.] Then you should take these factors and be sure you have a strong case and witnesses. For example, you will need to have witnesses to prove the hole existed for a long time, and would likely have been seen by the landowner on more than one occasion. Points to Remember
|
