Legal Question in Real Estate Law in California
What can we recover if defendants are wrong?
Defendants breached signed agreement 2 years ago: without notification & permission demolishing common fence & erecting another encroaching a triangular area of 48', 37', 33'.
We asked them many times to correct the problem. They refused. They filed in Small Claim Court asking us for $5k after their consultation from a civil engineer that they were encroaching & the demolished fence was on the proper boundary.
We filed in Superior Court & have the case transfer. We filed for default. They filed for cancel it, stating cross-complaints.
Then, they had surveyor verified the location of demolished fence was the surveyed boundary.
Due to defendants non-cooperation, all fees amount to $7000 now. They want to settle but are only willing to reimburse us $1500.
CA Civil Code 871 basically says that the party build on other's property on good faith is responsible for the attorney's for the injured party, is it true? They built on even on good faith. Can we ask for punitive damages & rent of the encroaching area?
2 Answers from Attorneys
Re: What can we recover if defendants are wrong?
It is very unlikely that you will get punitive damages, and it is unlikely you can get any rent. you have cited the wrong statute regarding attorney fees. If the good faith improver has to remove the wall or pay for its removal, then you probably have no right to attorney fees. If the wall stays, then you have been enriched, so you have to pay them for the increase in value to your land, but they have to pay your attorney fees. It sounds to me that this case is now only about attorney fees and the actual amount in controversy is somewhat irrelevant. My recommendation: get out and get out now.
Re: What can we recover if defendants are wrong?
The good-faith improver provisions are in the Code of Civil Procedure, not the Civil Code. See CCP sections 871.1 through 871.7.
Does either party have an attorney? I suppose so, if fees amount to $7,000. If you are represented by an attorney, you should address your questions to him/her.
I will point out, however, that anyone obtaining relief as a good-faith improver must pay the costs of the other party, against whom relief is obtained, including reasonable attorney fees; see CCP 871.5 and the recent case Tremper v. Quinones (2004) 115 Cal.App.4th 944.
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