Neighbor-to-Neighbor Property Water Damage, Recovering Repair Expenses and Legal Fees
June 1, 2010 2:02 PM Subscribe
What strategies do I have to keep legal fees down and reclaim expenses from a neighbor's negligence in producing some water damage to my home? A lawyer has been contacted, but I am surprised at the information related.
The Setup: The new neighbor next door appears to have inherited some issue with the drainage of the gutters on his home. One of the downspouts empties right out into the strip between our houses, which is a code violation. From the looks of the gutters overflowing in general, the underground drains on the back of the house may have failed in some fashion. After months of repeated nudging about how the downspout failed and the "hey look our lawn is underwater here" was ignored, I was able to get the county to issue a citation about the downspout. Reluctantly, the neighbor capped the downspout but water continues to flow over the gutters and right into my lawn.
Not that I am brimming with experience, but the new neighbor seems to have little experience with maintenance, or perhaps no inclination to deal with it.
The Damage: October gave my area roughly thirteen inches of rain. The area between our two houses is quite soggy, all the time. The January freeze caused quite a bit of movement, including busted concrete. The damage includes a cracked carport, cracked driveway, and a now crumbling retaining wall. Thus far, the foundation is still intact. A walkway has begun to come apart. Various concrete people and inspectors have documented what was going on and that the foundation has yet to crack, but repair estimates are hovering around five to seven thousand dollars. My insurance, of course, excludes this kind of water damage (nice to know), and that is fairly par for the course in this area. Neighbor's insurance is no longer responding to calls. The neighbor also hasn't noticed how his property is beginning to shift, either.
More To Come: Obviously, more rain is coming and with it, more damage. Talking to a real estate lawyer has given up a two thousand dollar figure (urk!) just to file an injunction to force the neighbor to fix the drains. Then there will be court costs and additional legal fees. The lawyer figures that it might take as much as two years to resolve and that the damaged area will have to be left "as is" until the court case is resolved. This almost sounds as if as much will eventually be spent on the lawyer as could be reclaimed in damages, which is a little disheartening.
With that, my web of questions:
1) I gather that an injunction of this sort is not something you want to file pro se. Is this true?
2) Before the actual injunction, I would like to visit and say, "I thought I would chat with you before I have a lawyer issue an injunction to get you to fix the drains. What will happen, if the injunction goes through, is that you will have to fix the overflow issue, fairly quickly. Or you can go ahead and fix it now. You'll most likely end up having to fix it either way. If I have to go through with an injunction, that will be expensive for me. I will probably try to reclaim those legal fees, as well. I may or may not be successful in that." I consider this probably friendlier than getting served with legal papers out of nowhere, but is it a good idea? I would like to resolve this with as few bad feelings and expenses as I can.
3) The real estate lawyer claims that while damages can be recouped, legal fees cannot. Is there any way out of this, in Missouri?
4) If legal fees cannot be recouped, then the break-even point ends up coming somewhere before what it would cost just to pay to repair the damage and be done with it. How can legal fees be kept down?
The engineering aspect I think I have a handle on — at some point a French drain sounds like a good idea to deal with overflow and drain the excess water away from the area, after the legal stuff is wrapped up. Obviously, I'm rather sad that someone else's negligence may end up costing me money. Legally, I have no clue and figures like two grand just to get started are a trifle daunting.
And, of course, You Are Not My Lawyer.
The Setup: The new neighbor next door appears to have inherited some issue with the drainage of the gutters on his home. One of the downspouts empties right out into the strip between our houses, which is a code violation. From the looks of the gutters overflowing in general, the underground drains on the back of the house may have failed in some fashion. After months of repeated nudging about how the downspout failed and the "hey look our lawn is underwater here" was ignored, I was able to get the county to issue a citation about the downspout. Reluctantly, the neighbor capped the downspout but water continues to flow over the gutters and right into my lawn.
Not that I am brimming with experience, but the new neighbor seems to have little experience with maintenance, or perhaps no inclination to deal with it.
The Damage: October gave my area roughly thirteen inches of rain. The area between our two houses is quite soggy, all the time. The January freeze caused quite a bit of movement, including busted concrete. The damage includes a cracked carport, cracked driveway, and a now crumbling retaining wall. Thus far, the foundation is still intact. A walkway has begun to come apart. Various concrete people and inspectors have documented what was going on and that the foundation has yet to crack, but repair estimates are hovering around five to seven thousand dollars. My insurance, of course, excludes this kind of water damage (nice to know), and that is fairly par for the course in this area. Neighbor's insurance is no longer responding to calls. The neighbor also hasn't noticed how his property is beginning to shift, either.
More To Come: Obviously, more rain is coming and with it, more damage. Talking to a real estate lawyer has given up a two thousand dollar figure (urk!) just to file an injunction to force the neighbor to fix the drains. Then there will be court costs and additional legal fees. The lawyer figures that it might take as much as two years to resolve and that the damaged area will have to be left "as is" until the court case is resolved. This almost sounds as if as much will eventually be spent on the lawyer as could be reclaimed in damages, which is a little disheartening.
With that, my web of questions:
1) I gather that an injunction of this sort is not something you want to file pro se. Is this true?
2) Before the actual injunction, I would like to visit and say, "I thought I would chat with you before I have a lawyer issue an injunction to get you to fix the drains. What will happen, if the injunction goes through, is that you will have to fix the overflow issue, fairly quickly. Or you can go ahead and fix it now. You'll most likely end up having to fix it either way. If I have to go through with an injunction, that will be expensive for me. I will probably try to reclaim those legal fees, as well. I may or may not be successful in that." I consider this probably friendlier than getting served with legal papers out of nowhere, but is it a good idea? I would like to resolve this with as few bad feelings and expenses as I can.
3) The real estate lawyer claims that while damages can be recouped, legal fees cannot. Is there any way out of this, in Missouri?
4) If legal fees cannot be recouped, then the break-even point ends up coming somewhere before what it would cost just to pay to repair the damage and be done with it. How can legal fees be kept down?
The engineering aspect I think I have a handle on — at some point a French drain sounds like a good idea to deal with overflow and drain the excess water away from the area, after the legal stuff is wrapped up. Obviously, I'm rather sad that someone else's negligence may end up costing me money. Legally, I have no clue and figures like two grand just to get started are a trifle daunting.
And, of course, You Are Not My Lawyer.
Best answer: Although I am an attorney in Missouri, I am not your attorney, and this is not legal advice. You should consult an attorney before making any decisions.
I gather that an injunction of this sort is not something you want to file pro se. Is this true?
I'm not exactly sure what you mean by this question. It would require a great deal of your time and quite possibly not work out. You'd have to spend a lot of time in the law library, as this isn't the sort of thing that there's likely to be an easy to use form for (not like, e.g., writing a simple will). The risk/reward calculation as to whether it's worth saving $2000 is up to you.
"I thought I would chat with you before I have a lawyer issue an injunction to get you to fix the drains."
As a point of clarification: the lawyer may request the injunction, but it's the judge who issues it.
The real estate lawyer claims that while damages can be recouped, legal fees cannot. Is there any way out of this, in Missouri?
Not normally, no. There are special circumstances that can sometimes result in being awarded attorney's fees, but it's a question for your attorney as to whether any of them apply in this case.
The contingency fee, of course, means that you only get 2/3 of your proven damages.
Indeed, you'll also have to pay the expert witness fees, which will be significant (on the order of $1000). An expert will probably be necessary to prove that the neighbor's gutter problems caused the water damage to your home. There will also be court costs (filing fees, etc), photocopying fees, etc that will come out of your award.
You must consider whether the cost of an attorney, the time involved, and the enduring animosity it will produce are worth it. Ultimately, you may recover very little. How likely do you think it is that your neighbor has $5000-$7000 he can pay out as damages on top of the cost of fixing the underlying issue? Sometimes, even when the law provides a remedy, it is not necessarily efficient to seek it, and sometimes defendants are judgment proof.
If legal fees cannot be recouped, then the break-even point ends up coming somewhere before what it would cost just to pay to repair the damage and be done with it. How can legal fees be kept down?
I would recommend considering engaging an attorney to speak with your neighbor about a settlement. It will probably be cheaper, faster, and less adversarial for everyone involved. The basic approach is to say "Look, we both know that if you fight this I will ultimately win. Why don't you just pay me $X now" where $X is roughly how much you'd expect to get at the end of the day after a lawsuit. Now, of course, your neighbor may tell you and your attorney where to stick it, and then you can think about a suit.
posted by jedicus at 3:07 PM on June 1, 2010
I gather that an injunction of this sort is not something you want to file pro se. Is this true?
I'm not exactly sure what you mean by this question. It would require a great deal of your time and quite possibly not work out. You'd have to spend a lot of time in the law library, as this isn't the sort of thing that there's likely to be an easy to use form for (not like, e.g., writing a simple will). The risk/reward calculation as to whether it's worth saving $2000 is up to you.
"I thought I would chat with you before I have a lawyer issue an injunction to get you to fix the drains."
As a point of clarification: the lawyer may request the injunction, but it's the judge who issues it.
The real estate lawyer claims that while damages can be recouped, legal fees cannot. Is there any way out of this, in Missouri?
Not normally, no. There are special circumstances that can sometimes result in being awarded attorney's fees, but it's a question for your attorney as to whether any of them apply in this case.
The contingency fee, of course, means that you only get 2/3 of your proven damages.
Indeed, you'll also have to pay the expert witness fees, which will be significant (on the order of $1000). An expert will probably be necessary to prove that the neighbor's gutter problems caused the water damage to your home. There will also be court costs (filing fees, etc), photocopying fees, etc that will come out of your award.
You must consider whether the cost of an attorney, the time involved, and the enduring animosity it will produce are worth it. Ultimately, you may recover very little. How likely do you think it is that your neighbor has $5000-$7000 he can pay out as damages on top of the cost of fixing the underlying issue? Sometimes, even when the law provides a remedy, it is not necessarily efficient to seek it, and sometimes defendants are judgment proof.
If legal fees cannot be recouped, then the break-even point ends up coming somewhere before what it would cost just to pay to repair the damage and be done with it. How can legal fees be kept down?
I would recommend considering engaging an attorney to speak with your neighbor about a settlement. It will probably be cheaper, faster, and less adversarial for everyone involved. The basic approach is to say "Look, we both know that if you fight this I will ultimately win. Why don't you just pay me $X now" where $X is roughly how much you'd expect to get at the end of the day after a lawsuit. Now, of course, your neighbor may tell you and your attorney where to stick it, and then you can think about a suit.
posted by jedicus at 3:07 PM on June 1, 2010
Response by poster: Yeah, I sort of figured that an injunction is too big to tackle on my own.
Well, what I'd prefer is if his homeowner's insurance paid it out, rather than out of his pocket. I have no idea how that works, either. Honestly, I'm coming up against the legal stuff simply because nobody seems willing to communicate or fix anything, which is rather frustrating.
posted by adipocere at 3:14 PM on June 1, 2010
Well, what I'd prefer is if his homeowner's insurance paid it out, rather than out of his pocket. I have no idea how that works, either. Honestly, I'm coming up against the legal stuff simply because nobody seems willing to communicate or fix anything, which is rather frustrating.
posted by adipocere at 3:14 PM on June 1, 2010
Best answer: Well, what I'd prefer is if his homeowner's insurance paid it out, rather than out of his pocket.
It's possible that his homeowner's insurance covers this kind of thing, but it's also possible it doesn't. Or that it only covers so much. In any event, the insurance company will have an incentive to fight it, of course, but they may be amenable to settlement. It all depends on the particulars of the law and the facts. You should talk to an attorney (maybe the same one, maybe not) about the costs & probably outcome of trying to settle with the neighbor and/or the neighbor's insurance company.
I'm a little surprised that the attorney you spoke with jumped directly to discussing a lawsuit. The vast majority of civil cases are settled out of court.
posted by jedicus at 3:20 PM on June 1, 2010
It's possible that his homeowner's insurance covers this kind of thing, but it's also possible it doesn't. Or that it only covers so much. In any event, the insurance company will have an incentive to fight it, of course, but they may be amenable to settlement. It all depends on the particulars of the law and the facts. You should talk to an attorney (maybe the same one, maybe not) about the costs & probably outcome of trying to settle with the neighbor and/or the neighbor's insurance company.
I'm a little surprised that the attorney you spoke with jumped directly to discussing a lawsuit. The vast majority of civil cases are settled out of court.
posted by jedicus at 3:20 PM on June 1, 2010
Best answer: IANYL, and TINLA, but I would get a second opinion. Especially if you are interested in working civilly with the neighbor or dealing with his insurance. Meet with another couple lawyers to get a sense of what they can offer you beyond going straight to court. Another lawyer may be happy to take on a negotiation with a lower starting cost.
Also, you didn't mention what your relationship with the neighbor himself has been. If this is an issue which is affecting his property as well, and if you have a cordial relationship, you may be able to succeed with option #2 on your own.
posted by freshwater at 3:38 PM on June 1, 2010 [1 favorite]
Also, you didn't mention what your relationship with the neighbor himself has been. If this is an issue which is affecting his property as well, and if you have a cordial relationship, you may be able to succeed with option #2 on your own.
posted by freshwater at 3:38 PM on June 1, 2010 [1 favorite]
Best answer: You should consult several different attorneys before you decide on an outcome. The consultation should be free or low cost. Get the fee agreement in writing once you decide on a lawyer.
The other option you might consider is small claims court, at least for the damages portion. I'm not sure what the law is in Missouri (and check with your local court on this), but in Oregon at least, you can sue someone in small claims court if dollar value is under X amount. Then there's voluntary mediation that brings both sides to the bargaining table. If that fails, there's a trial by judge. No attorneys are allowed, so it helps to keep expenses down.
I don't know if small claims would be very useful for the injunction, but it might resolve damages. I gather at this point you're not too worried about future relations with the neighbor --- otherwise you probably wouldn't have ratted him out to code enforcement.
I am not your lawyer and I do not practice this type of law, or practice in your state. Go get a few more consults before making up your mind ;-)
posted by Happydaz at 6:24 PM on June 1, 2010
The other option you might consider is small claims court, at least for the damages portion. I'm not sure what the law is in Missouri (and check with your local court on this), but in Oregon at least, you can sue someone in small claims court if dollar value is under X amount. Then there's voluntary mediation that brings both sides to the bargaining table. If that fails, there's a trial by judge. No attorneys are allowed, so it helps to keep expenses down.
I don't know if small claims would be very useful for the injunction, but it might resolve damages. I gather at this point you're not too worried about future relations with the neighbor --- otherwise you probably wouldn't have ratted him out to code enforcement.
I am not your lawyer and I do not practice this type of law, or practice in your state. Go get a few more consults before making up your mind ;-)
posted by Happydaz at 6:24 PM on June 1, 2010
Response by poster: Given that the problem was pre-existing, but unfixed, there's actually two insurance companies which I might petition for some kind of redress, so small claims might not be unreasonable. Missouri's limit appears to be $3,000. Times two, that would more or less cover things.
Looks like I'll be shopping for lawyers. Any particular kind to ask for?
posted by adipocere at 6:50 PM on June 1, 2010
Looks like I'll be shopping for lawyers. Any particular kind to ask for?
posted by adipocere at 6:50 PM on June 1, 2010
Best answer: Looks like I'll be shopping for lawyers. Any particular kind to ask for?
Talk to more real estate lawyers. You could also try a tort lawyer, since it's likely that the cause of action will be based in torts (trespass, negligence, etc). Either way, make sure to ask if the attorney has ever handled something like this before. If not, ask if they could recommend someone who has.
posted by jedicus at 8:08 PM on June 2, 2010
Talk to more real estate lawyers. You could also try a tort lawyer, since it's likely that the cause of action will be based in torts (trespass, negligence, etc). Either way, make sure to ask if the attorney has ever handled something like this before. If not, ask if they could recommend someone who has.
posted by jedicus at 8:08 PM on June 2, 2010
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The contingency fee, of course, means that you only get 2/3 of your proven damages.
posted by yclipse at 2:40 PM on June 1, 2010