Monday, April 22, 2013

Nuisance Actions- When All Is Not Good In The 'Hood

With the widespread flooding of the past week and the corresponding increase in interest in my law firm's services, it's about time for another post on this blog.  I strongly recommend that those visiting this blog for the first time review these earlier posts: http://atty4homeowners.blogspot.com/2013/02/do-you-really-need-me.htmlhttp://atty4homeowners.blogspot.com/2013/02/do-you-really-need-me.htmlhttp://atty4homeowners.blogspot.com/2013/03/your-basement-should-be-in-pictures-and.html

Most of our cases are seller misrepresentation cases - our clients are alleging that the people who sold them their home misrepresented its condition by failing to disclose defects at the time of sale in their Real Estate Condition Report.  However, we also pursue nuisance cases.  While many defendants and their attorneys may view all of our cases as nuisance cases, that's not what I mean!

Legally speaking, a nuisance is an invasion of interest of another in the private use and enjoyment of land.  In other words, a homeowner may have a claim against his or her neighbors for interfering with his or her property rights.  "Neighbors" is not necessarily limited to homeowners who live next to each other on quarter-acre lots in a subdivision.  For instance, property owners can sue owners of nearby businesses for the loss of use and enjoyment caused by excessive noise, odors, and vibrations.  See Krueger v. Mitchell, 106 Wis. 2d 450, 317 N.W.2d 155 (Ct. App. 1982).  We currently represent homeowners who claim to have been damaged by the demolition of an existing building and the construction of a new one - they are suing the developer and contractors for foundation damage caused by vibrations and the annoyance and inconvenience caused by excessive noise and dust.

More commonly, we represent homeowners who claim that their neighbors caused their basement to leak by altering the flow of surface water through the following activities:
  • Erecting a structure, such as a home, garage, or shed;
  • Installing a driveway or parking lot;
  • Erecting a retaining wall;
  • Building a berm;
  • Digging a swale;
  • Extending or redirecting the discharge pipes for downspouts and sump pumps.
The neighbors' liability largely depends upon whether or not their use was reasonable.  They will argue that they merely wanted additional storage space or a place to park, while we will argue that they also (or really) wanted to divert their water onto your property.

Interestingly enough, your neighbors could be held liable for nuisances that they did not create:

One who maintains a nuisance created by another is liable for injuries sustained because of the danger incident thereto just as clearly as if he had himself created the danger in the first place. If the owner or the occupier of property continues a nuisance created thereon by others, he is liable, not because he owns or occupies the premises, but because he does not abate the nuisance.

Physicians Plus Ins. Corp. v. Midwest Mut. Ins. Co., 2002 WI 80, 254 Wis. 2d 77, 646 N.W.2d 777.  Of course, this presupposes that your neighbors can abate (or correct) the nuisance.  More importantly, it presupposes that you have given them the opportunity to do just that!  Regardless of whether or not your neighbors created the nuisance, you need to give them the opportunity to make the necessary corrections before suing them for damages - it's the neighborly thing to do!

Alas, neighbors (and their insurance companies) tend to be stubborn when confronted with the damages caused by their activities.  If your neighbors refuse to come correct, we may be willing to pursue your case on a contingency fee basis and will seek reimbursement for your correction of the condition, repairs, diminished value, and loss of use.  A jury may award punitive damages if it finds that your neighbors intentionally disregarded your rights.