5.30.06: PROBLEM NEIGHBORS: THE RIGHTS YOU NEVER KNEW YOU HAD 10am
GUEST: Mark Lerner with Lerner and MacDonald in Santa Ana
Segment #1
(10:05)
WHAT TO DO IF SECOND-HAND SMOKE IS WAFTING INTO YOUR LIVING ROOM:
· Non-smokers bothered by their neighbors’ smoking may find that they can now take action.
· If the troublesome smoker lives in a planned development or a condominium with covenants, conditions, and restrictions ("CC&Rs") prohibiting smoking, then either you or the homeowners’ association may take legal action against the smoker.
- Even if the smoker doesn’t live under a no-smoking restriction, you may find a be sympathetic if you sue the smoker for creating a private nuisance (interfering with your ability to use and enjoy your property).
For example: A Florida court awarded $1,000 to a nonsmoker after she successfully argued that her condominium neighbor’s smoking was trespass, a nuisance, and violated her right to quiet enjoyment. The nonsmoker and her family suffered health problems as a result of the smoking and sometimes had to sleep elsewhere when the smoke from the neighboring condominium was particularly dense. (Merrill v. Bosser, No. 05-4239 COCE 53 (Broward County Ct., June 29, 2005).)
Segment #2
(10:17)
WHAT TO DO IF YOU’RE ABOUT TO LOSE YOUR OCEAN VIEW:
· Bad news, folks. If your neighbor wants to build or plant something that obstructs your ocean view, most people DON’T have a right to stop them.
· Homeowners have no right to a view—or light or air—unless it’s been granted in writing by a local ordinance or subdivision rule.
· There’s one exception: someone may not deliberately and maliciously block another view with a structure that has no reasonable use to the owner.
· If your area DOES have an ordinance against blocking the view, it may only protect you from having your view blocked by growing trees. In that case, you need to first approach the tree owner and ask that it be pruned. YOU are responsible for any associated costs.
FOUR THINGS TO DO BEFORE YOU PAY FOR A PROPERTY WITH A VIEW:
1. Ask the property owner or the city planning and zoning office if the property is protected by a view ordinance.
2. Then check with the real estate agent to see if neighbors are subject to restrictions that would protect your view.
3. Find out whether a homeowners association actively reinforces restrictions if the house is in a planned unit development.
4. Check local zoning laws for any property that might affect you.
5. Look closely from the property to see which trees might later obstruct your view. Then introduce yourself to their owners with your concerns and agree on a plan of action.
Segment #3
(10:30)
WHAT TO DO ABOUT THAT NOISY APARTMENT COMPLEX NEXT DOOR:
- First things first: Try reasoning with the renters next door, and if that doesn't work, try the same approach with the landlord.
- Secondly, if cars are turning up on your front lawn, that counts as trespassing. The cops will deal with that for you.
- If partying is the problem you’ve got a nuisance on your hands. Don’t discount it as petty, either. You never know what could end up in your neighborhood at a late night party.
- If you’ve written letters, shown up in person, and exhausted all your other resources, sue the owner -- not the tenants -- of the offending house in small claims court. This kind of lawsuit is very effective -- especially if you can get other neighbors who are annoyed by the ruckus to join in.
Segment #4
(10:38)
WHEN A TREE’S GOT YOUR SANITY HANGING FROM A LIMB…HERE ARE YOUR RIGHTS:
- If the branches of a neighbor’s tree hang over your yard, you have the right to trim the branches up to the property line. But you may not go to the neighbor’s property or destroy or deliberately harm the tree itself. If you do that, you may be liable to the owner for two to three times the amount of actual monetary loss.
- You are responsible for a tree whose trunk stands in your hard. Even though most of a tree may hang into your neighbor’s yard, that tree is still yours. If the trunk stands partly on both your land, it belongs to both property owners.
- If your neighbor kills your tree by any means, you’re entitled to compensation.
- If you’re worried your neighbor’s tree may fall on your house, you can trim the branches to your property line…but that’s about it. Otherwise, you’ll need to talk to your neighbor. There are two ways out: the city may determine the tree is hazardous and demand your neighbor remove it. Or, if the tree threatens a utility company’s equipment, they may come and trim it.
Segment #5
(10:47)
KNOW YOUR BOUNDARIES TO AVOID NEIGHBOR DISPUTES:
- You can hire a licensed land surveyor to survey the property and place official markers on the boundary lines. Professional organizations, such as the California Land Surveyor's Association, often provide useful information on how to choose and work with a land surveyor.
- The cost of a boundary survey is determined by the size of the parcel, whether it is in a subdivision, when it was last surveyed, what region of the country it is in, and other factors.
- If you don’t want to pay a surveyor, You and the neighbor can agree on where you want the line to be and make a "lot line agreement" between yourselves. Then you make it official by signing deeds that describe the boundary. If you decide to do this, make sure you research local zoning and subdivision laws that you may need to comply with.
- If you have a mortgage on the property, consult an attorney for help in drawing up the deeds. You may need to get the permission of the mortgage holder before you give your neighbor even a tiny piece of the land. Once you have signed a deed, you should file it at the county land records office, usually called the County Recorder's Office, Land Registry Office, or something similar.
Problem Neighbors 11am
GUEST: Mark Lerner with Lerner and MacDonald in Santa Ana
Segment #1
(11:05)
WHAT TO DO WHEN YOU’RE NEIGHBOR’S DOG WON’T STOP BARKING:
· Your neighbor may be clueless to the problem. Many dogs bark mostly when the owner’s away, so it’s a good idea to tell your neighbor about the problem.
· Suggest solutions. Maybe a particular obedience school or animal behavioral specialist helped you with your dog. You could also suggest that the dog will be kept inside during certain times.
· Look up your local codes to see if barking dogs are covered by a specific local ordinance or whether the problem qualifies as a noise complaint.
· If you’ve tried everything and nothing works, call animal control. It’s their job to enforce local noise laws when it comes to an unruly pet.
Segment #2
(11:17)
WHAT YOU NEED TO KNOW ABOUT YOUR NOISY NEIGHBOR:
· Yes, you CAN force them to put a sock in it! Excessive, unnecessary and unreasonable noise is illegal in almost every community. You’ll need to check your municipality’s noise rules to find out specifics.
· Most local noise ordinances designate certain “quiet hours.” They not only apply to loud parties, but also to running your lawnmower at 6am on a Saturday.
FOUR THINGS YOU’LL NEED TO PROVE IF YOU SUE YOUR NOISY NEIGHBOR:
1. There’s excessive and disturbing noise.
2. The person you’re suing is creating it.
3. Your enjoyment of your home is affected.
4. You’ve asked the person to stop the noise.
Segment #3
(11:30)
WHAT CAN I DO IF MY NEIGHBOR STARTS USING MY PROPERTY?
- Don’t wait to say something—this is a big deal. When you try to sell your house, a title company might refuse to issue insurance because the neighbor is on your land.
- Also, if you don't act quickly, you could lose part of your property. When one person uses another's land for a long enough time, he can gain a legal right to it.
- But don’t worry about talking to your neighbor, either. Chances are it’s just a mistake. Approach the matter calmly—tell them it’s just something you’ve observed. Suggest looking at the property line together.
- If your neighbor won’t stop, tell them you’ll sue if necessary. Then send a firm letter -- or have a lawyer send one on his or her letterhead. If the building doesn't stop, waste no time in having a lawyer get a judge's order to temporarily stop the neighbor until you can bring a civil lawsuit for trespass before the judge.
Segment #4
(11:38)
YES, YOU MIGHT BE ABLE TO DO SOMETHING ABOUT YOUR NEIGHBOR’S UGLY FENCE.
- Some towns or subdivisions allow only certain types of new fences in an attempt to create a harmonious architectural look. Some towns also prohibit certain materials -- for example, electrically charged or barbed wire fences.
- Even without such a specific law, if a fence is so poorly constructed that it is an eyesore or a danger, it may be prohibited by another law, such as a blighted property ordinance.
- And if your neighbor put up the fence just for meanness -- it's high, ugly and has no reasonable use to the owner -- it may be what’s called a “spite fence.” You can sue the neighbor to get it torn down.
- But if your neighbor is building a harmless but hideous fence, chances are, they’re not breaking the law.
WHAT TO DO ABOUT AN UGLY FENCE DIRECTLY ON THE PROPERTY LINE:
- Unless the property owners agree otherwise, fences on a boundary line belong to both owners when both are using the fence. Both owners are responsible for keeping the fence in good repair, and neither may remove it without the other's permission.
- Your first step should be to talk to the neighbor about how to tackle the problem. Your neighbor will probably be happy that you're taking the initiative to fix a fence that's already an eyesore and might deteriorate into a real danger.
Segment #5
(11:47)
WHEN IT RAINS, IT POURS…WHEN WATER DAMAGE BECOMES AN ISSUE
- As a general rule, a neighbor is not liable for harm caused by the natural conditions of land. If the land lies in such a way that a particular amount of water is dumped onto your backyard every year from rain running off your next-door neighbor's property, it's not legally your neighbor's fault.
- But there are two rules of liability if you’re neighbor’s landscaped his property in such a way that the water runs directly onto yours.
When one neighbor alters the land and damage occurs to another, the neighbor is liable for the damage if the alteration was quote unreasonable. If you sue a neighbor over damage you've suffered, judges will want proof that the neighbor did something unreasonable that altered the natural condition and caused your harm.
In California, water is a “common enemy.” So if you’re on low-lying land, you’re expected to protect your property from water damage.
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