Understand the Basics of Property Law
There are few things that will cause trouble faster between neighbors than encroaching on property. Here are some of the common problems of encroachment:
- Has your neighbor caused a tree or a portion of his residence or building to encroach onto your land?
- Has a neighbor excavated on his own land, but caused a potential danger to the lateral support and integrity of your property or home?
- Has a neighbor with whom you share a party wall done something to that wall that creates a danger without your permission?
If so, there are common property rights and legal issues you should know about.
An encroachment is the projection of a building or an object onto the land or air space of an adjoining piece of real estate. The general rule is that an owner of land has the right to use the surface of his property and everything permanently located on, above or beneath it as he sees fit as long as it does not infringe upon the rights of an adjoining landowner.
If a landowner intentionally interferes with the property rights of another, it is considered a "trespass." However, a trespass need not be intentional in the eyes of the law. A "nuisance" can occur with an interference of a neighbor's property rights and includes anything that is injurious to health, is indecent or offensive to the senses, or interferes with the comfort or enjoyment of life or property.
A public nuisance affects an entire community or neighborhood. A private nuisance usually affects only one neighbor. Typical examples are loud music, barking dogs and use of loud equipment at unreasonable hours.
If your property rights are being seriously encroached upon or your enjoyment of your home and property is being interfered with, you have the right to bring an action that will stop the nuisance and to recover any damages.
If the action is a public nuisance, a legal action can be brought to stop the problem in the name of a public entity such as "the people of the state of California."
Neighbors often have complaints with one another regarding encroachments upon their land, such as trees whose trunks stand partly on the land of two or more adjacent landowners, or when overhanging tree branches constitute a nuisance or even danger to the property of another. An affected neighbor may cut tree branches that are on (or over) his land, but he may not cut down the entire tree without court action. If a landowner suffers damages as a result of this encroachment, they can be recovered in a court action.
Some encroachments are considered permanent in nature, such as a building that has been constructed over a boundary line. Damages can be sought for a permanent encroachment as well as anticipated future damages, which include such things as depreciation in property value. If, on the other hand, the encroachment is considered a continuing problem and can be stopped, then the remedy is to seek an abatement, which is legalese for stop.
An injunction, which is a court order prohibiting or directing a certain action, is another type of remedy available for encroachments. Judges usually consider the severity of the encroachment and the inconvenience caused to either party by ordering the injunction.
One property owner cannot excavate his land for the purpose of construction or remodeling to such an extent that it endangers the structural integrity of a neighbor's home. This often happens when a sloping home site is involved and if a slope is cut to such an extent that it takes away the support for the neighbor's property.
When subsidence or settlement occurs to your land as a result of a neighbor's improper excavation, you have the right to seek a legal remedy — damages to repair the subsidence or even an injunction to prevent more damage if the excavation is ongoing.
A party wall also can cause problems between neighbors. A party wall is usually between adjoining buildings and provides common support. Typically, party walls are present in condominiums. Each neighbor or owner of a building with a party wall has rights and liabilities. Each neighbor owns a portion of the wall and an easement in the part located in the neighboring property.
The maintenance of the wall must be shared, and an owner has the right to recover a share of the costs from his neighbor if necessary. The easement gives one owner the right to maintain the entire wall if the other refuses to do so.
If a neighbor refuses to share in the cost of maintaining the party wall, or affects its integrity by some action such as threatening to increase the height of a wall, the injured neighbor can seek property damages or an injunction.
Jim Testa is senior partner of the San Marcos-based law firm of Testa & Associates, LLP and can be reached at 760-891-0490 |
