Legal Question in Real Estate Law in California
I own a house that I purchased over thirty years ago. When I first bought the house, a cinder block wall was already standing on the west side of my property. The wall is one foot onto my property line, so it is clearly my wall. (I think a survey was done in the past.)
Access to my property and the neighbors is by a private street on the south side of the properties. Several years ago (not sure exactly when), my neighbor poured fill in his side yard, so that he could access his property from another street to the north of his property. He began parking cars and a large boat on the side of his house, next to the cinder block wall.
Over time, the fill and his placement of vehicles has pushed against the wall, and it is in danger of collapsing. The normal drainage is from the north, and the wall was never meant to be a retaining wall.
He was recently foreclosed on, and the bank currently owns the house. I checked with the county, and never pulled permits to put the fill in. Now that the house is vacant, I have looked and it is clear that he put the fill in to allow access from the north road and that the original drainage has been disturbed.
What can I do? Can I sue the bank now that they are the owner of his old property. He has disappeared and appears to not have any money. That fill needs to be removed and I need my wall repaired.
1 Answer from Attorneys
Well, first of all, I think you need to decide what a possible solution is worth to you and how much you're willing to spend (or to risk?) to sue. Also, I think a suit should name both the foreclosing bank (or other current owner) and the individual who actually owned the property and did the damage, because not all of the issues here are necessarily associated with the current ownership of the property.
The next step is to make a careful photographic record of thinds as they now look. By the time this matter would come to trial, things may have changed (perhaps for the worse?).
Next, it's probably a good idea to have a new survey done to determine the exact location of the property line using modern survey instruments. Even if the old survey was accurate and a record of it can be found, land and the objects on it have a tendency to creep in some parts of the state.
Then, talk to a few real-estate lawyers in your county to get an idea of what it would cost to sue for the appropriate relief, which might include: (1) a judicial determination of the location of the property line, based on the survey, and identifying the encroachments (if any); (2) an award of damages for private nuisance, trespass, etc.; and (3) an injunction against future encroachments, if the court is willing to go so far. Your attorney may suggest other causes of action that could be lumped into the same suit (quieting title, if title to any strip of land is in actual dispute, for example).
I think all of this could be pretty costly and, not knowing your neighborhood, etc., I can't advise whether it'd be worth the expenditure. I don't think any money damages you'd be awarded would cover the costs of suit (survey, attorney fees, expert witnesses, court costs) and so the value of disputed land, if any, could be controlling on the economics.
If a lender is the owner, it might settle with you upon presentation of the survey and related evidence, prior to your filing any suit, so maybe give that a try.
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