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Illegal pipe installation leaves neighbor’s lawn a disaster zone

Dear Benny: While we were out of town, my neighbor and a well installer destroyed 400 square feet of my lawn, leaving us with ruts, dirt piles and dead sod.

In addition, they buried 40 linear feet of water pipe and electrical cable on our land without our permission. I have a recent land survey to validate our claims.

They refuse to repair my lawn or remove the pipe or cable. The sheriff has refused to take any action.

What are our options? –Suszan

Dear Suszan: And you call those people your “neighbors”?

I understand that the sheriff might not want to get involved, even though, if your facts are correct, there was an illegal trespass onto your land.

Police and sheriff’s departments are extremely busy with more serious crimes. I am in no way belittling your situation, but you have a civil remedy: File a lawsuit for wrongful trespass and damage to your property.

Generally speaking, our courts follow what is known as the “American rule on legal fees.”

That means that each side pays his/her own legal fees, unless (1) there is a provision providing for attorneys fees to the prevailing party in a legal document, such as a lease or real estate sales contract; (2) there is a provision providing for legal fees in a statute in your state (you will have to have an attorney give you this advice); (3) a pool of money has been collected as a result of a court judgment obtained by an attorney, such as in a class action; or (4) the court finds that the action of the defendant was not so outrageous that punitive damages, including legal fees, should be ordered.

I don’t want you to get your hopes up about this fourth category, but from your description your attorney should be able to make a strong case for punitive damages against your neighbor.

P.S.: After writing this response, someone sent me a provision from the Virginia Code. I thought it would be of interest to my readers, as you may have similar language on your state laws:

§ 15.2-1717.1. Designation of police to enforce trespass violations.

Any locality may by ordinance establish a procedure whereby the owner, lessee, custodian or person lawfully in charge as those terms are used in § 18.2-119 of real property may designate the local law-enforcement agency as a “person lawfully in charge of the property” for the purpose of forbidding another to go or remain upon the lands, buildings or premises as specified in the designation. The ordinance shall require that any such designation be in writing and on file with the local law enforcement agency.

Dear Benny: I purchased a home in April 2009.

The house is relatively new, built in 1995. I purchased the home with an FHA loan, as a short sale.

My concern is disclosure. My home is constantly creaking and cracking. I did have a home inspection before I purchased the home. However, it was not noticeable during the inspection.

Are the previous owners responsible for disclosing the “noises”? Should I contact a real estate lawyer? –Diana

Dear Diana: There are two things you have to do first before you talk with an attorney.

First, review your sales contract. Does it say that you bought the property in its “as is” condition? If so, then you may have a hard time convincing anyone — a judge or the seller — that the seller has any obligation to you.

Second, you should have a licensed home improvement contractor, or a licensed structural engineer, make a determination of the cause and source of the noise.

Perhaps it is routine settling; new houses often creak as they settle down on the ground. You should also find out how much it will cost to correct, if correction is even possible.

There are things that you can do, without having to spend money on a lawyer. It may very well be that there is no way to solve the problem and that, in time, the problems will go away. It may also be that the cost to correct is minimal, and it would make sense for you to bite the bullet and pay the cost, instead of filing suit against the seller.

Over the years, I have advised my clients that sometimes it pays just to fix the problem instead of spending a lot of money and time on litigation.

Benny Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.

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