October 9, 2020 at 3:37 PM #819884
O2addict, Thank you. I think I am just going to start every post with “Hobie was right” or “should have listened to Hobie”. 🙂
Seriously, I hope this thread helps others if just to learn from my mistakes.
An easement exists. There is not a lot of detail to it. I spent a lot of time looking at old records to check. I had proposed to the neighbor that we make it clearer (would potentially help both of us with resale). He refused. He also would “not allow” work without his ok. I am pretty sure he can’t do that BUT when I have done something as simple as requesting information from him, he has immediately had attorneys threatening me. So, I can only imagine what he would do if I had a plumber roll up to do some work.
Lis Pendens is a great idea, but I don’t believe it applies here. You have to have a suit involving either the title to the property or a claimed ownership interest in it. I have neither.
If I had filed a proper lawsuit at the time of the first extremely bad behavior, I would have had a chance of having a judgment by now which I would need for a lien. To be a little fair to me, my neighbor pushing out the suit and Covid definitely did not help my situation. Well, that and I never anticipated anyone lying this much when it hurts them financially to do so. I thought most people would be more logical about a major investment.
I do not believe this neighbor’s orders changed. I believe if he has decided not to sell that he will rent. This is second hand info, so no idea if this is true. And, I am really not tracking their actions very carefully as it is mostly none of my business. I only ran into the neighbor last week as I was out with my dogs when he was out in his yard. And, as he has pretty much refused to communicate in any productive way, I figured I would try that.
I think right now all I can do is 1) fight this ridiculous TRO 2) get a good attorney.
JCOctober 9, 2020 at 5:51 PM #819886o2addictParticipant
Understood. My point regarding easements was because an allegation that you are seeking to enforce an easement on the neighbors property is a property right that is well settled in California. And likewise used as a legal basis to support the lis pendens. It’s an interest in that property that you own.
Many easements are not written because they don’t need to be. They exist by operation of law. And why I suggested transferring the case. Any reasonable litigator can accomplish that. The amended complaint will allege your easement interest in the property.
But it sounds like you have a decent handle on this.October 9, 2020 at 6:14 PM #819887
O2addict. Wow! Thank you. I did not know that. I will pull some more info on that this weekend. And, good point about the non-written easements — that is pretty much what the city and county told me when I approached them about this issue and started my research. It’s kind of well understood that most property owners would want to cooperate if they share a sewer.
I don’t know that I have a great handle. I have just done a lot of asking and researching. And, I really hope some of this benefits others too.
One other interesting note (possibly only to me). I found another neighbor on my street had a similar issue. Shared sewer line broken by construction only he was the person who did the accidental breaking. His way of handling was to 1) apologize to the other neighbor and 2) replace their ENTIRE line. I think that is more than I would actually expect but that behavior seems a bit more common in my area than my neighbor.October 10, 2020 at 6:03 AM #819888HobieParticipant
JC: Couple of things. Don’t waste your time on fighting a RO. Let your atty do all of the communication from now on. Easy.
Get a couple of estimates of the cost to install a new direct line, not just fix the damage. At this point, given the neighbors attitude and actions, I would suggest suing for the new line.
To be most efficient with your initial atty meeting, prepare your timeline in summary format. ie. moved into your home x/2018 ( no plumbing issues ), construction happened x/2019, noticed sewer problem x/2019, tried to resolve with neighbor x/2019… Make it clean and easy to read. Details will come later.
I can’t remember if you already have this but you need documents from a plumber and/or city that:
1. Identifies that you indeed have a shared sewer
2. Property lines, easement.
3. Exact point of damage in the line ( w/photos from sewer camera, plot map with dimensions of sewer location )
4. Cost to repair.
Get at least 2 estimates for the repair and install of the new line. You want these to be similar in price and include ‘everything’. That means new cleanouts on your property, etc. Estimate for restoring landscaping, fixing sprinklers, etc. Anything that was affected by neighbors actions to bring your yard back to normal. You need high dollar estimates, you are not shopping price nor hiring the contractor right now. This sets the value of your legal action. You don’t want to miss something and come up short as you can’t ask for more later.
One more thing, it would be good if you prepared a statement in your own words saying how this sewer issue has caused you to not enjoy your home. ie. no dinner parties, no multiple guests, no birthday parties, no overnight guests, running small laundry loads vs. full load, going to laundromats, not taking baths, short showers, etc. You get the idea. All of this is to show your fear, concern, embarrassment of a sewer backup has affected your daily living activity. Due to lockdown you spend more time at home, thus adding to the frustration and inconvenience.
And, be sure to interview a couple of attorneys. Find one that you are comfortable with and ask them for estimates of their cost. There is a point where your time/cost of simply paying for the repair and walking away outweighs a long legal action.
My hope is that a well crafted letter to neighbors atty will result is him telling his client, “Just pony up and pay” as he really doesn’t have much of a defense. What started as a, guessing here, couple thousand dollar repair can easily balloon into tens of thousands with a drawn out legal battle.
Remember, even with a win, does the neighbor have the money to pay you? I’m a bit skeptical as he has turned over 2 attys– could it be for nonpayment? Stuff to think about.October 11, 2020 at 11:56 AM #819889
Hobie is right. (I promised I would start future convos this way).
Seriously, thank you for more good info.
I can’t avoid responding to the TRO. A copy of this is something my employer will find and my neighbors went for maximum pain. I know the majority opinion on this thread is that I have been way too nice, but they lied and said “this order is based on unlawful violence, a credible threat of violence, or stalking”. I guess they are banking on the difficulty of proving perjury?
And, to be 100 percent clear, I did not do any of those things. I HAVE asked many times for cooperation because I can’t fully use my home. It has been incredibly upsetting, but I am not a violent person and most of the time I work 2 jobs at a time, so unless I could stalk someone in my sleep, that would be impossible.
This is probably standard, but they tried to pull any statement out of context possible to make it look like I was saying one thing when I wasn’t. I’m just adding this in for anyone who reads this who has an issue like this. Keep good documentation! Thankfully, I did, but it will still be annoying to have to prove all of this.
Regarding the large number of attorneys on a small claims case, I don’t think it is an inability to pay. Based on what I saw with the second set of attorneys, my neighbor does not provide a full picture of actual events, so they take actions and then when I provide the attorneys with the info about what really happened, they back off. For instance, my first message from the second set of attorneys was similar, but I provided info on what my requests were content wise, why they were necessary and that I had offered mediation as a means to resolve our conflict but that my neighbor was not engaging. That promptly stopped those communications from that set of attorneys. (Hobie will probably chime in and advise that me being open and honest with the second set of attorneys was stupid. If he does, follow his advice. For me, I have just been trying to get this resolved with minimum pain for all financially and emotionally so I can move on with my life and that seemed the best way at the time)
I believe the TRO and my response will be able to be found by his employer too, so I am confused as to why he would do that to himself? He also seemed to get his wife to do the lion’s share of the lying, but he did plenty too. Super odd behavior.
Thanks again for all of the great input. Much appreciated.October 12, 2020 at 5:39 AM #819895HobieParticipant
Please drop any response to the TRO. This is a chicken sh*t intimidation tactic that has zero effect on your case. Plus, I don’t think these become publicly visible until a judge issues a ‘permanent restraining order’.
The legal system is the ONLY way you are going to get any kind of action out of your jerk neighbor. Don’t let it scare you… you have done nothing wrong!
Since he is not letting you onto his property to fix the pipe I believe it is now necessary to move your case out of small claims court into Superior court as you will need an injunction to allow you to exercise your easement rights.
( This is the paper you will show the cops when he calls them on your plumber trying to fix the pipe in his yard. )January 5, 2021 at 8:53 PM #820358
Well, I am ready to ask for referrals for a good real estate attorney. If anyone has one, I would be delighted to get the referral.
An actual RO was not allowed at the hearing, but I am glad that I did respond and did show for the hearing as I think one would have been granted if I had not. (For other folks, it might be ok to ignore, but my neighbors perjured themselves and fully fabricated actions that did not happen). TROs are granted easily and that is a good thing for people who are telling the truth and need protection. This is not a good thing for people that will fabricate info. I don’t believe most attorneys would support this behavior as its probably not really in your client’s best interest long term to allow them to engage in this kind of unethical behavior. That said, their attorney lied in court himself. I may be naive, but I was fairly shocked by that.
I’m not sure why the judge did not seem to care about the perjury or the evidence I presented of the first of 3 attorneys threatening me in writing and claiming that I would never have a chance in court as a judge would only ever side with a military member, but he did seem to realize that this was a property dispute and nothing else and that I had no way to resolve my situation. He got the neighbor’s attorney to agree to try to move towards a resolution.
Sadly, the personal attorney does not seem to be following through on this. He says settlement and then keeps claiming the info I have provided is not what he needs, but also wont specify what he does need to be provided. Meanwhile, I continue to back-up. The most recent one was this past Sunday.
All of this negatively impacts my neighbor too, so I feel like I am missing something. By not addressing this, neither of us can sell or refinance. And, even if we could sell, my realtor let me know that this could come back to haunt us after the sale if we don’t get this resolved. I can’t rent out part of my home and I would guess that this impacts the rental rate my neighbor can get. But, instead of trying to cooperate or resolve, they appear to be spending more money on attorneys than a fix from an independent plumber would have cost. And, if they had addressed when first notified by certified letter, it likely would not have cost them anything as they could have had the contractor make the fix. Again, I must be missing something. As this seems completely illogical.
As always, thank you for the input and I hope some of this helps others.
JCJanuary 9, 2021 at 9:34 AM #820375
Updated the topic name to be more descriptive of the current request. As always, thank you for any suggestions you may have.January 12, 2021 at 6:41 AM #820386
I have received a number of referrals through other channels, so if anyone needs a referral in the future, just PM me.January 14, 2021 at 5:45 PM #820403gzzParticipant
I am real estate attorney. I think you need a mediator. Your dispute is too small to fight out.
The likely result of litigation will be you both lose, and the fight is who loses the most.
I would not take your case for this reason.
For mediation, try JudicateWest. Prager and Pressman are retired SD trial judges and good choices. i have used Prager before.January 14, 2021 at 7:51 PM #820405
gzz, Thank you for the input. I would actually love to use a mediator and tried that for more than 6 months. My neighbor refuses to engage with a mediator. I can’t understand why. As you have noted, this is a lose lose situation.
I have pointed out all of the reasons why settling this via a mediator would be good in the best interest of all parties, and they still seem keen to force me to hire an attorney. I’m baffled.January 15, 2021 at 12:51 PM #820411gzzParticipant
Have your current lawyer ask the judge to order mediation before anything else happens in the case. I have had cases with courts ordering mediation 3 different times.
The top private mediators I suggested with cost at least 5k, but are worth it.
There are volunteer mediators who work for free as part of a court program, they will also help.January 16, 2021 at 6:56 AM #820417
Thank you. I will see if I can do that.
I had a volunteer mediator through the court that was excellent for some time. It was my follow-up with my neighbors and their attorneys asking them to “Please respond to the mediator. Thank you.” that they used to file a TRO. Well, that and some completely fabricated activities. Obviously, there was no evidence of the items they fully made up. The other “evidence” was photos of my polite notes asking them to engage with the mediator.
This did not have to cost any money on my neighbors end if they had simply engaged with their contractor as soon as they were notified that their construction broke the sewer line. Instead, they have spent more on legal fees just to keep me from getting any relief than it would have cost to fix the line with a private plumber and are forcing me into hiring an attorney.
I think in civil cases you generally can’t get the other party to pay for your legal fees, but I wonder if there are any special circumstances when you can demonstrate that you tried ALL available routes to resolve amicably with no cooperation from the other side. Probably wishful thinking.
Thanks again for the helpful input.
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