What to do about developer's damage to my property?
February 18, 2013 12:35 PM   Subscribe

I need help choosing the best course(s) of action to remedy damage done to my property by the developer next door.

The developer of the adjacent lot has not respected the boundary line and has damaged vegetation and structures on my property. The new house may not conform to required side setbacks because the exact location of the lot line is not well-established.

I'm considering three options (which may not be mutually exclusive) for resolution: contacting the land development office, filing suit in small claims court, or hiring an attorney.

I bought my house in the summer of 2002 in a established neighborhood where the majority of houses were built before 1930. The adjacent lot was heavily wooded with mature oaks but also overgrown with invasive wisteria and privet (possibly originating from a hedgerow along the property boundary). Unwilling and unable to fight through the overgrowth, I installed a simple welded wire fence on my clear side of the thicket to contain my dog.

On the street was a wood-fenced garbage can storage area that I assumed to be on my property. I treated the lot boundary as extending perpendicular from the street at this enclosure. I have maintained the property to this line (which is about 6 feet beyond my fence), cutting overgrown shrubs, eradicating invasive wisteria, and removing storm-downed trees. The garbage can enclosure eventually deteriorated to the point where I rebuilt it in roughly the same area, though slightly smaller. I've had several conversations with the previous owner of the adjacent lots standing on this area of our properties, and he never once mentioned that either the original or rebuilt enclosure was on his lot.

Last year a developer bought the lot and began clearing it in September.

1. When clearing the lot, the crew did not have a clear understanding of the property line and removed trees and shrubs on my lot.

I confronted them and explained that the boundary was several feet to their side of the wire fence, and they agreed to respect this vague line for the remainder of the clearing operation.

2. When excavating footings, the crew buried an original chert retaining wall on my property. This wall was also damaged during clearing and fill operations.

During the fill operation, I spoke to the fill contractor, and he stated that the property line had been surveyed and was about 3 feet to their side of my wire fence and chert wall. He agreed to respect that line during his work. A different contractor excavated the footings and buried the wall along its entire length. I confronted the site supervisor in October, and he agreed to have his crew uncover the wall, but nothing has come of it.

3. When pouring footings, a concrete pump truck hit a railroad tie retaining wall on my property. The wall was significantly destabilized as a result.

I came home one day to find the pump truck operator about to lower the truck's outriggers in my front yard. I explained that I wasn't okay with that, and I watched as he hit the wall while moving his truck. The concrete contractor agreed to repair the wall but has done nothing.

4. The new house does not conform the the 7-foot side setback stated on the building permit. The house may not conform to the 5-foot side setback required by city code.

The house is less than 7 feet to my wire fence. Reasons behind the uncertainty in the 5-foot setback are twofold. One, the property line established by the developer's survey is not marked or was obscured by subsequent work. Two, I may have an adverse possession claim, as I have treated this strip of land as a part of my property, maintaining the vegetation and garbage can structures for over 10 years. The land I would claim extends to the side wall of the new house.

Resolution Options
1. Call land development office, who is responsible for issuing building permits and enforcing codes. They may not be able to do much other and ensure a 5-foot setback from lot line as established by the developer. I'm not sure if the 7-foot setback given on the permit is binding. I don't know if this action could affect my other options.

2. File suit for damages in small claims court. The filing fees are manageable, and the damages seem clear-cut. I would have to place a value on the damage, but I would also like the settlement to provide for an independent survey to clearly mark the lot line. I imagine I would lose any adverse possession claim.

3. Hire an attorney and go all in on the adverse possession claim. This seems like a high cost with little chance of success option. I really don't have enough extra cash for more than a basic consultation, and certainly don't have the money to lose that suit.
posted by lost_cause to Home & Garden (14 answers total)
The first thing you should do is go to the county to find out where you property line is! I'm sure this would have been part of the things you'll need to close on the house (the bank would want to know the extent of the value of it's holdings re: your mortgage.) If not, spring for your own survey. It's around $250 and well worth it, especially if there are issues like the ones you are describing.

While at city hall talk to someone in Code Enforcement and ask for an inspection to address your concerns.

Once you have your ducks in a row, THEN file suit.

I'm really getting funky vibes about the fact that you each have a different understanding of where the property line is.
posted by Ruthless Bunny at 12:47 PM on February 18, 2013 [10 favorites]

RB beat me to it. What does the survey say?
posted by futureisunwritten at 12:49 PM on February 18, 2013

Survey. Required. Now. FullStop.

Also hopefully not eponysterical.
posted by RolandOfEld at 12:54 PM on February 18, 2013 [4 favorites]

Please note that 10 years is not long enough for adverse possession in a number of jurisdictions. There are also lots of exceptions that could destroy your AP claim.

I would do the following in this order:

1. Go to the county/municipal office and do what is necessary to find out exactly where your property line is. There might be maps you can look at, you might need a full survey, there might be buried survey marks that can be found with a metal detector (I think that a surveyor can find these, and will charge less $$ if they exist than if they have to actually chart everything out).

2. Make an appointment with a lawyer for a consultation, bring all of the details that you've listed here, plus what the survey says (if the land is your land, no need to pursue adverse possession, but you might have to act to _protect_ yourself from it.

I'm willing to bet that this will go beyond the limits of what small claims courts will cover in your jurisdiction.
posted by sparklemotion at 1:26 PM on February 18, 2013 [3 favorites]

Quite possibly not true in your jurisdiction, but in many a small claims court cannot deal with claims such as adverse possession or "equitable claims", i.e. not contract or tort. Lawyer consultation is a very good idea.
posted by uncaken at 3:27 PM on February 18, 2013

Response by poster: Thanks for the replies. A few thoughts if it helps:

I have the plat and legal description of the property. The problem is converting those to precise points on the ground.

The developer had his surveyor mark the lot line during the fill operation, but those stakes disappeared quickly, about the time the footings were excavated. The line was somewhere in the 7 or so feet between my fence and the block foundation of new house going in. Lot line surveys in my area typically cost $400-$500. How likely is it that another survey would locate that line differently?

All damage occurred on my side of the developer's surveyed lot line.

The precise location of the lot line and adverse possession issue really only affect the side setback problem. Depending on the exact, on the ground location of the platted boundary line, the new house may or may not conform to the code-required 5 foot minimum setback. *If* my adverse possession claim were valid, the new house would certainly not conform to that 5 foot setback.

Maybe it helps to look at the problem in terms of what I want:
1. Repair of my railroad tie wall, and some compensation for the trees and shrubs they removed, as well as for the 90 year old chert rock wall they ruined.

2. Accurate location of the lot line so that I can move my fence to it (in part to protect myself from adverse possession as sparklemotion says).

3. Either significant money or to see the project shut down if they've violated the setback requirement from the lot line established by either a standard survey or an adverse possession claim.

I realize the adverse possession option is complicated, not something for small claims, and fairly expensive. I would only pursue it if it seemed like a legitimate case.
posted by lost_cause at 3:50 PM on February 18, 2013

Best answer: The developers are not going to pay/support your desire for accurate lot lines. You need to provide your own survey. If this was an official survey then the papers should have been submitted to the city, but if it was a local survey for the builders from existing property corners then there won't be additional papers. But then I'd assume you could find those same property corners yourself?

My property was undefined on two sides (S & E), it only had the plot descriptions. The city had literally no idea where my property line was. The surveyors had to walk in measurements from a known geo location on the main arterial street, then they could locate my property corners. It cost me $2k, but was filed with the city and now I (and everyone) know exactly where my land is. Which leads to the next point...

You can't claim they damaged your land/trees/wall unless you can prove that it's yours. If it's theirs (according to their own survey, which they trust much more than your vague claim) then they don't owe you anything.

If your survey shows that it's your land, then you take them to small claims court and get it fixed, it should be that simple and quick (or offer to let them settle out of court).

As for adverse possession, you need to check your local codes to see what's possible. In my city, citizens don't get adverse possession. My neighbor has been maintaining the back 5ft of my property for 10yrs (and for many years before I moved in), but it's still mine. One day I'll put a fence up and piss off everyone, but it's still my land - he can't claim it no matter how long he's been making it pretty.

As for whether they're violating setbacks - you need to know where the property line is. You can submit something to the city to ask them to review the building and setbacks. At that point the city will check, and may ask the developer to provide a survey showing that everything is correct. (I had to do this, as the corner of my new addition is within 5" of the side 5' setback and the neighbors were raising a stink.)

But then you wonder "how do they know where the property line is?" Usually, this setback survey/check was covered during initial layout of the foundation so those survey markers may be gone now and all you have is a signature in a building code checklist showing that everything was OK at the time of inspection.

If you really want to be sure, you'll have to do your own survey. Only then can you proceed with other actions, everything hinges upon knowing exactly where your property line is.
posted by jpeacock at 4:31 PM on February 18, 2013

I have the plat and legal description of the property. The problem is converting those to precise points on the ground.

That's what the surveyor does. It should be the very next thing you do. It's a moot point to discuss anything without knowing where the property lin is on the ground.
posted by humboldt32 at 4:32 PM on February 18, 2013 [4 favorites]

That's what the surveyor does.

Seconded. Thirded. Nthed.

Sorry if this is coming across as judgmental but I really don't know why you haven't done this yet*. Honestly it would have been best to have covered your butt before the construction even started, or when you moved in, but those ships have sailed and you need to know, without a doubt, what is going on in the physical world. Yes your plat and documents show that on a physical piece of paper but there's a reason why surveyors are trained and responsible, in a legal and binding sense, for their work. This is the reason.

Get thee hence to the yellow pages.

*Conjecture: If you're worried about the expense of a survey then.... yea, the survey is cheap compared to the remainder of the steps you may have to face until a conclusion resolves this.
posted by RolandOfEld at 5:53 AM on February 19, 2013 [2 favorites]

Response by poster: >I have the plat and legal description of the property. The problem is converting those to precise points on the ground.

That's what the surveyor does.

I almost wrote that exact sentence in my comment. I was trying to reply to a few people who seemed to suggest I could find the lot line myself with those documents.

I completely understand why people are telling me to hire a surveyor immediately. I don't think I've done a good job of explaining why I haven't already. The damage to my property is clearly on my side of the lot line the developer established during the dirt work. The developer or his subs acknowledged the damage and promised to repair. The setback issue is a secondary concern, and yes, money's tight. Also, the developer's surveyor is one I've used, and he has a good reputation in town.

Nonetheless, I would probably be calling surveyors right now, but...

If this was an official survey then the papers should have been submitted to the city

Yeah, I went and checked the building permit, and there is this signed, stamped site plan from the surveyor. I don't know how much it helps me, since there's not much to tie this survey to the ground. There is flagging tape at the NW corner, but nothing at the NE corner to establish the line (note that N is to the left on the map, and the property to the north is mine).

So here's my plan:
Try to force the developer to mark the line on the ground by asking the building inspector to check the setback. If that works, the damage will clearly be on my property, and I'll tell the builder to fix it/pay me or we go to court. The building inspector can worry about the setback.

If that doesn't work, or the line seems to have conveniently moved, I'll hire a surveyor. I know nothing about modern surveying. How likely is it that two good-faith surveys would be different?

The adverse possession thing seems like a longshot. I think I meet the conditions for Tennessee but I may be way off base. I'll probably just not worry about it.

Thanks again for everybody's help.
posted by lost_cause at 11:14 AM on February 19, 2013

Try to force the developer to mark the line on the ground by asking the building inspector to check the setback.

That's analogous to hearsay. Setbacks are determined from surveyed points on the ground not the other way around.

How likely is it that two good-faith surveys would be different?

Not very likely. Surveyors' licenses are at stake if they perform inadequately or unprofessionally. That being said, from what I understand the line in questions is still to be determined via a survey by either you or the neighbor's contractor. But in any case I would hire my own surveyor to provide objective information on my behalf. If nothing else, the two surveys should confirm the other's results.

I'll reiterate, any discussion without knowing where the line is physically located is moot. That will be the first question a judge or the Building Dep't will ask. You say it's "here". The neighbor says it's "there".
posted by humboldt32 at 1:10 PM on February 19, 2013

How likely is it that two good-faith surveys would be different?

Not very likely. Surveyors' licenses are at stake if they perform inadequately or unprofessionally.

It can happen. I've personally seen it happen but our survey was more rural and included probably 100+ acres that hadn't been surveyed, at least by us 'cuz I have no idea if the mining companies that surround us did for their edges, in 60 years. There were some problems about a line between my grandfather and his brother. It was settled in a 100% amicable fashion by some combination of them signing off on the stuff that the surveyor noted. Basically one survey had one outcome and another was saying that line was off by 10-20 feet.

Again, maybe not applicable but unless you've seen/got a copy of the survey documents then you don't have a survey. I don't know if that site plan will work for your hypothetical lawyer if it comes to that. Plus not having one corner flagged means you still, really and truly, don't know where that line is in the physical world. You just don't. You think you do and maybe you're right, but without all the flags hanging you can't tell and you can't take pictures that will serve to convince someone like a judge.
posted by RolandOfEld at 1:25 PM on February 19, 2013

Response by poster: Setbacks are determined from surveyed points on the ground not the other way around.

Right. If the building inspector comes out the the site to check the setback, he can see the foundation of the house, but what he can't see right now is the lot line. I'm hoping he will require the developer to mark the line so that he can verify the setback in the field.

Again, during grading, the developer's surveyor clearly marked the boundary with a line of pretty orange stakes labelled "PL." I do actually have a couple of photos showing those stakes well south of my fence and wall. I don't necessarily dispute that line (unlikely AP claims notwithstanding). I'd like to see those stakes back, and I'm trying to get the inspector to make the developer do it rather than paying my surveyor to.

When the inspector made his first visit to the site to check the footings, the lot line stakes had been buried or removed when the footings were dug. So he just accepted the developer's word that the setbacks were good. I'm familiar with this inspector, and that's his style. He's never bothered to verify that a setback was anything other than what I said on a permit (I'm a small remodelling contractor - my sample size is about five projects in his jurisdiction that were close on a setback).

If the inspector makes the developer re-stake the lot line, great. If not, I'll hire a surveyor to do it. Either way, I'll get the boundary marked, and then I can move on any damages. I'll let y'all know how it turns out.
posted by lost_cause at 3:05 PM on February 19, 2013

Response by poster: Just got off the phone with the building inspector. He's going to make the developer do a survey so that he can verify the setback.
posted by lost_cause at 7:07 AM on February 20, 2013 [1 favorite]

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