Andrew Lieb discusses updates to Lieb School and Adverse Possession issues on 88.3FM Real Life with John Christopher.
Click here to Listen to Interview
Click here to Listen to Interview
Showing posts with label Neighbor Issues. Show all posts
Showing posts with label Neighbor Issues. Show all posts
Monday, June 20, 2016
Wednesday, November 04, 2015
When your neighbors list their house for sale, proceed with caution and see an attorney immediately if you are presented with an out of possession title affidavit or a boundary line agreement.
This affidavit or agreement is a writing wherein you, as a neighbor, swears, under the penalties of perjury, that you do not assert an ownership claim to real estate which has been used by you as if it were your own. Meaning, part of the property owned by your neighbor in their deed, such as a driveway, fence, shrubs, bulkheading, wood chopping area, boat storage, or the like, may have been used by you for a period of time sufficient to transfer the ownership to you through legal concepts called either adverse possession or a prescriptive easement. However, the new purchaser wants this affidavit or agreement so you disclaim your ownership rights.
Read the complete article in full by Andrew Lieb, Esq. here.
This affidavit or agreement is a writing wherein you, as a neighbor, swears, under the penalties of perjury, that you do not assert an ownership claim to real estate which has been used by you as if it were your own. Meaning, part of the property owned by your neighbor in their deed, such as a driveway, fence, shrubs, bulkheading, wood chopping area, boat storage, or the like, may have been used by you for a period of time sufficient to transfer the ownership to you through legal concepts called either adverse possession or a prescriptive easement. However, the new purchaser wants this affidavit or agreement so you disclaim your ownership rights.
Read the complete article in full by Andrew Lieb, Esq. here.
Wednesday, June 03, 2015
Ever have your neighbor's tree fall on your property? Andrew Lieb shares tips on how to handle the issue, the default rules in New York, and who is responsible...
Read the full article in The Huffington Post
Read the full article in The Huffington Post
Friday, April 17, 2015
Andrew Lieb, Esq discusses 10 secrets to dealing with neighborly disputes.
Tuesday, April 14, 2015
These are the top 10 legal issues that you may face with your neighbor and how they will be resolved, in court, according to the law. Perhaps, this article will show you that a private, non-legal, neighborly, agreed-upon resolution is a better option for your predicament than turning to the courts. Then again, perhaps not.
Read the published article written by Andrew Lieb, Esq. in Dan's Papers by clicking here.
Read the published article written by Andrew Lieb, Esq. in Dan's Papers by clicking here.
Wednesday, February 11, 2015
Your neighbor's commercial vehicle (with loud and colorful electrician advertisements throughout the truck) is parked on the street abutting your driveway every day. Crews meet for coffee out front every morning at 5 AM, prompt, in order to gather for their workday. Your spouse parks in your driveway and you have to park down the street. The morning noise drives you nuts and you can't take it anymore.
Regardless if the business is lawful, pursuant to the local municipal code (i.e., zoning code), New York's highest court has said that "no one may make an unreasonable use of his own premises to the material injury of his neighbor's premises". Meaning, that there are no hard and fast rules in this field of law, which is called a private nuisance cause of action, but, instead, a trier of fact (i.e., judge or jury) must determine if a given business activity is unreasonable at the location where it is being conducted.
In determining if an activity is unreasonable, the following factors should be analyzed to assess the totality of the circumstances under which the activity is being conducted:
A private nuisance cause of action has been used to shutter the following types of business operations: raising and keeping of pigs, quarry operations, nightclubs, auto racetrack and open air concerts. In fact, the Courts of New York have held that a business cannot defend such an action by arguing that "the defendant's business or works is lawful, and is a great benefit, utility, and convenience to the public, and is rightfully carried on in a proper, suitable, and convenient place, and in a careful and orderly manner, and in the best and most improved manner". Such a defense is irrelevant.
So, if you wish to shutter the business, exercise your rights and make a claim that the business is a private nuisance to your use of your property, you can let a court decide if the activity should be stopped. Further, let a court decide if you should be compensated for your lost use and enjoyment during the time that the business operated. To establish your lost value, look to the diminished rental value of your property during the time that the business operated from what that value would have been if there was no such business existing during that time. Now, go live in peace and quiet.
Regardless if the business is lawful, pursuant to the local municipal code (i.e., zoning code), New York's highest court has said that "no one may make an unreasonable use of his own premises to the material injury of his neighbor's premises". Meaning, that there are no hard and fast rules in this field of law, which is called a private nuisance cause of action, but, instead, a trier of fact (i.e., judge or jury) must determine if a given business activity is unreasonable at the location where it is being conducted.
In determining if an activity is unreasonable, the following factors should be analyzed to assess the totality of the circumstances under which the activity is being conducted:
- The location of the property at issue;
- Who was at the location first, the complainant or the business operator;
- The nature of the business' use of the property;
- An overall character assessment of the neighborhood where the activity is occurring;
- With respect to the injury claimed, how frequent is it occurring and to what extent or level is it occurring; and
- How, specifically, the business is effecting the complainant's enjoyment of life, health and property.
A private nuisance cause of action has been used to shutter the following types of business operations: raising and keeping of pigs, quarry operations, nightclubs, auto racetrack and open air concerts. In fact, the Courts of New York have held that a business cannot defend such an action by arguing that "the defendant's business or works is lawful, and is a great benefit, utility, and convenience to the public, and is rightfully carried on in a proper, suitable, and convenient place, and in a careful and orderly manner, and in the best and most improved manner". Such a defense is irrelevant.
So, if you wish to shutter the business, exercise your rights and make a claim that the business is a private nuisance to your use of your property, you can let a court decide if the activity should be stopped. Further, let a court decide if you should be compensated for your lost use and enjoyment during the time that the business operated. To establish your lost value, look to the diminished rental value of your property during the time that the business operated from what that value would have been if there was no such business existing during that time. Now, go live in peace and quiet.
Wednesday, February 04, 2015
Not only can the offensive smell be stopped, but damages may be available to you as the neighbor who has had to endure the offensive smell throughout its existence. In fact, the law in New York is not so extreme that it requires odors to adversely impact your health in order for you to have rights. Instead, you have a claim so long as the odors are unpleasant and offensive. Odors that typically give rise to these types of disputes are caused by chemicals, farms, factories, restaurants and the like. To stop the smell, the claim that you should bring is called a private nuisance cause of action and to win on such a claim you will have to demonstrate that your enjoyment of life and property has been rendered objectively uncomfortable based upon unreasonable activities causing the smell.
Specifically, the courts explain that the following five (5) elements must be proven to prevail on this claim:
You should take note that you don't even have to be forced from your home by the smell in order to win on your claim. Instead, and even if you stay in your home, as long as your property experienced a diminution in its rental value during the course of the existence of the smell, you can recover that diminution in addition to having the smell's cause be stopped.
Shockingly though, secondhand smoke infiltration emanating from a neighbor's own home is almost never considered a private nuisance and no action can likely be brought to stop the smoke. The only exception to this rule, where smoking can be stopped, is when there is an express prohibition against smoking in residences within the locality where the neighbors reside. Such a rule prohibiting smoking can come from either a local statute / code or from a private contractual right existing in the house rules of an apartment building, cooperative apartment or condominium building.
So, before trying to stop the smoking check all county, town, city and village codes for such a law. Additionally, if you live in a multiple dwelling unit (i.e., an apartment), check the rules of the building contained within its house rules, lease, by-laws and/or operating agreement before proceeding. Knowing the rules will be the difference between winning and losing your case.
Specifically, the courts explain that the following five (5) elements must be proven to prevail on this claim:
- An interference substantial in nature
- Intentional in origin
- Unreasonable in character
- With a person's property right to use and enjoy land
- Caused by another's conduct in acting or failure to act
You should take note that you don't even have to be forced from your home by the smell in order to win on your claim. Instead, and even if you stay in your home, as long as your property experienced a diminution in its rental value during the course of the existence of the smell, you can recover that diminution in addition to having the smell's cause be stopped.
Shockingly though, secondhand smoke infiltration emanating from a neighbor's own home is almost never considered a private nuisance and no action can likely be brought to stop the smoke. The only exception to this rule, where smoking can be stopped, is when there is an express prohibition against smoking in residences within the locality where the neighbors reside. Such a rule prohibiting smoking can come from either a local statute / code or from a private contractual right existing in the house rules of an apartment building, cooperative apartment or condominium building.
So, before trying to stop the smoking check all county, town, city and village codes for such a law. Additionally, if you live in a multiple dwelling unit (i.e., an apartment), check the rules of the building contained within its house rules, lease, by-laws and/or operating agreement before proceeding. Knowing the rules will be the difference between winning and losing your case.
Wednesday, January 28, 2015
Unfortunately,
the term shared is such an inexact state of being and only through first
deciphering how the driveway is actually owned can the mutual obligations for
maintenance be precisely determined.
To
force your neighbor to share in the upkeep and maintenance of a driveway or, better
yet, to force your neighbor to pay for the entirety of the driveway maintenance
is a complex proposition. To do this, you should first look to the deeds for
all of the properties sharing the driveway. Typically, the deeds will show how the
driveway is owned. There is only a true sharing of the driveway when there is a
separately deeded right for the ownership of the driveway, in addition to both
neighbors’ ownership of their individual properties, and as such, the driveway
is titled in the neighbors as tenants-in-common or joint tenants. In this
situation the driveway can be thought about in the same terms that one would
view a lobby of a condominium with respect to ownership responsibilities and
permissive use.
The
typical shared driveway is not generally owned by both neighbors jointly, as
previously described, but, instead, one neighbor usually owns the driveway
while the other neighbor will hold an easement to use the driveway, or a right
of way over such driveway. Here, the owner of the driveway is considered to
have the servient estate whereas the easement-holder is considered to have the dominant
estate. The dominant estate has rights that exist on top of that of the
property owner who must, in turn, moderate his own rights for the purpose of
serving the dominant’s intended use. In consequence to the owner’s subordinated
rights, and as New York’s highest court has explained, “[o]rdinarily, a
servient owner has no duty to maintain an easement to which its property is
subject”. Instead, the servient landowner only has a passive duty not to
interfere with the rights of the dominant easement-holder. As a result,
maintenance and snow removal would typically fall on the shoulders of the
easement-holder (a/k/a dominant estate), by default, who has a corresponding duty
to keep the easement in sufficiently good repair so as to avoid harm to the servient
landowner’s property.
A
properly drafted deed should obviate the need to understand these default rules
because such a deed should spell out the respective duties and limitations of
the parties’ rights with respect to the driveway. The deed should go so far as
to speak in terms of the specific maintenance obligations of each neighbor by explaining
if the dominant estate-holder’s rights are just to use the easement as a
passageway, or, instead, if the dominant estate-holder can maintain the
easement with such things as plantings, fencing, paving, etc. A properly
drafted deed should allocate the costs and decision-making powers of the
neighbors so that there is no ambiguity as to the neighbors’ ability to
co-exist into the future. More particularly, the deed should unequivocally
state if the servient landowner is completely excluded from use of the driveway
existing for the benefit of the easement-holder, or if both the servient and
the dominant estate can use the driveway in a shared manner. The latter being
the default rule if the deed is silent as to this issue. In such a situation and
absent an express agreement to the contrary, all persons benefited by an easement
must share ratably in costs of its maintenance and repair.
Assuming
that both the servient and dominant estates actually utilize the driveway, the
ownership rights will be looked at as an easement-in-common by a court when
allocating the costs of maintenance. As a consequence either neighbor can take
initiative to maintain the driveway. However, a neighbor can only look to the
other to share ratably in its repair if that neighbor, who is undertaking the
repair, gave the other neighbor both adequate notice of the repair issue sought
to be addressed and a reasonable opportunity to participate in deciding how the
repair is made. Thereafter, the neighbor, who is undertaking the repair, must
ensure that the repairs were performed adequately, properly and at a reasonable
price. Failure by the neighbor, who is undertaking the repair, to satisfy any
of these obligations will prove fatal in any subsequent claim upon the other
neighbor to share in the cost of maintenance of their shared driveway.
If
you don’t have an agreement concerning the maintenance of a shared driveway
with your neighbor, before going to court, you should invite your neighbor to
enter into such a private agreement and thereafter file it with the deed, at
the county clerk’s office, as a covenant and restriction that runs with the
land. This type of agreement will not only avoid your instant conflict with
your neighbor, but it will also prevent future neighbors who are living at your
properties from existing with the same type of ambiguity, as to the rights and
responsibilities for driveway maintenance, that created your conflict in the
first place. As a consequence, it will enhance your property’s value.
