My neighbor’s house is 12 feet from my property line.
The zoning law requires 15 feet between property lines.
The law was in place before my neighbor’s house was built. He wanted to have the widest house in the neighborhood :rolleyes: and somehow he convinced the builder to push his house out 3 feet in both directions.
So, if I take this to court, who is responsible? The township, who I assume had to approve the building plan? The builder? The homeowner? No one?
I figure the homeowner is off the hook, since he didn’t actually do anything but make a request.
Can anyone shed some light on this? I will be contacting an attorney next week, but I was hoping to have some background info. before going in.
No legal expertise here. But some years ago a friend in S. California told me of a case near him where a completed house ultimately had to be torn down because it failed to meet “setback” requirements.
Is your neighbor’s house being three feet over the line harming you? If not, why would you want to sue them? If in the case of Xema’s example, the city tells them that the house must be moved back or removed entirely, you will have acquired one extremely pissed-off neighbor.
Why would you think that? Yeah, he just made a request, but it was a request that started the chain of actions that led to the violation.
I have no idea how things work in your town, but some friends of mine went through something similar with an absentee landlord neighbor of theirs. He built a new garage too close to their house (IIRC he may have even crossed the property line) and after several months, several hearings and several thousand dollars, the city zoning board gave the neighbor a variance so he didn’t have to do anything.
It might be harming the OP if there is a fire. That is the reason for many of those codes. They don’t just make shit up and write codes about it, no matter how much it may seem so. There are legitimate safety reasons for many of them.
I’m not a lawyer, but I have owned two city homes in my life.
In zoning violations, the owner of the property is ultimately responsible, as far as I know. Since he is only violating the setback requirements by a few feet, the city (or whatever government you fall under) will most likely issue a variance rather than make him tear it down, depending on how far in the construction process he is. 15 feet is a pretty wide setback from the side line, my neighborhood is only 5 feet, although we do have a density rule.
If his permit is valid and the house was inspected, he most likely got a variance and it is too late for you to do anything about it. In any respect, how is a few feet less setback on his part harming you or your property value?
Having been involved in a lots of commercial development related zoning hearings, and having seen how very similar (to the OP) residential setback encroachment cases have been decided, the likelihood is, that if it was an innocent mistake, and unless the zoning board is a collection of real hard asses, a 3 foot difference will likely get a variance.
If it was a premeditated “I’ll see if I can get away with it” decision to build and it can be proved he knew better, that’s another story.
This is a classic example of a situation where no attorney worth his salt would offer to you an opinion on your situation, unless and until you offered a lot more information. In the absence of a considerable amount of facts that you have not provided, all that can be offered is guesses. The answers provided to you so far are worthless, for that very reason. :rolleyes:
There is a story told on the Underground Seattle tour of a land owner who sued his neighbor for building 1 foot over onto his property. It was a multi-story warehouse and the owner wanted to just buy the foot wide strip of land but the land owner said no and made him tear down the foot of the building that was over the line at great expense.
So he did. But he took down 2 feet. Later, when the landowner built his building he put it right up to the first building. The first guy then informed his neighbor that his building was 1 foot on his land and demanded that he tear it down, but he couldn’t raise the money so he ended up selling the building to the guy he originally tried to screw.
Bottom line, beware of pissing off your neighbors.
I agree with you. I was soliciting answers, but I left out specific details, such as city, state, etc. because unless you live in my town, I’m guessing that the laws are different in each municipality. I put it in GQ because I was hoping that there were basic property law statutes or zoning laws that could be relayed to me through this forum. Opinions are just that… opinions. I didn’t want to put this in IMHO because I wanted fact-based answers that may give me a good idea of what I’m looking at.
I will supply more details for folks that have asked, in no particular order and not quoted from any one poster.
My house was the last house built in a 10 year old housing plan/development. All houses with the exception of one were built by the same builder, so the neighborhood has a certain “feel” to it. This is an issue for a number of reasons.
Property value. Since this was the last lot, it became a neighborhood “dumping ground”. Everyone’s unwanted leaves, dead branches, tires, dog poo, etc. were thrown on this lot, and it took considerable expense to clean it out. The builder cleaned out a large portion of this, but I have a large grove of trees in the back that I’ve been cleaning out for over a year now. My property, in relation to the neighborhood looks “crowded”, so I am concerned about what this may do to my property value.
Neighbor being pissed off. Well, I am not out to make an enemy. But my neighbors on both sides took advantage of the empty lot between them and have pushed the boundary of their own lots as far as possible. I’m also on a slight downslope from Mr. 12 feet, causing more drainage issues than you can imagine. I have a large retaining wall, however, this guy has his downspouts and drainage from his roof pouring out onto his property but ultimately ends up in my yard or driveway. Three feet could make all the difference in the world. As a reference as to what kind of guy I’m dealing with, he had a drainage pipe a full 20 ft. onto my property, and wouldn’t remove it until I threatened to take it to court. He couldn’t understand why I was making such a big deal about it. But water and drainage is an issue, and the more water being dumped onto my back yard in a concentrated area caused severe flooding when we first moved in. He since moved it, but in revenge he put landscaping in that is over my property line. I haven’t said anything about this yet since to me, it’s not a permanent structure and can always be removed by an axe if necessary. (And believe it or not, the guy in the township zoning office told me to do exactly that. I was surprised that cutting down another person’s tree was on his list of “tips”).
**Damage to my property. ** This guy has a landscaping service that cuts his lawn every summer. Fine by me, except that these guys mow my yard, turf it to a level that burns it out, and bang into the trees I have purchased and planted (on my own property, mind you). That three feet would remove this problem. Speaking to the owner about the tree damage got me no where. He glared at me and walked away. I approached him again to ask him if something else was going on in his life because his walking away from me didn’t solve the problem. He then went into a diatribe about how his old neighbor (before he moved here) built a wall on his property and he ended up giving the guy the land instead of suing. I assume this is what he expects me to do, and is annoyed at my questioning his landscaping decisions. Too bad for you, pal. I’m not your friend, I’m your neighbor. And I’m not giving you property for free or letting your house sit where it isn’t supposed to because you tell me to. The fact that the drainage water is helping to push my retaining wall out is certainly going to be a problem. If pissing off a neighbor isn’t a good thing, they certainly don’t seem too worried about it. Why should I?
The Principle of the thing. I know 3 feet doesn’t seem like much, but when the law says 15 feet, he’s taken a full 20% cut in the freezone. And since there *are * issues such as fire-spreading potential, and the law is 15 feet, I assume there are a number of reasons to keep it at 15 feet.
As I mentioned, I built between two established houses. My other neighbor has a fence 3 inches from my property line and insists on cutting my grass on my side of the fence. He still let’s his dogs “do their business” on my property since that’s where they’ve always gone. Please. Being a good neighbor goes both ways, and I’ve kept my mouth shut for the most part to fit in but enough is enough. I will not be taken advantage of. I am paying taxes on my land. I take pride in my yard. Why everyone seems to want to take a swipe out of my property to make it look like they own more could be tied to psychological problems, but whatever their personal issues, I do have a right to live here as much as anyone else, and I have an obligation to do it within the regulations set up by my township. So does everyone else.
I don’t even know if this is a case that is court-worthy. I don’t expect my neighbor to have to tear down his house. But if I’m going to take a hit when I sell this place, then I think someone owes me the difference. Am I wrong here?
Oh, and to address this. I believe it falls under the “I’ll see if I can get away with it” philosophy. I think this because we have a utility company right of way that runs through the back of our yards. His landscaping goes 10 feet into the right of way, and he’s genuinely proud of it. “I did it to see what they would do, and they haven’t done anything.” was his statement to me. I didn’t even ask about it. I had no idea he is over the ROW until he told me. I then took a closer look and sure enough, there he is. I’ll let the utility company fight their own battles. His arrogance and “I can get away with anything I want” attitude is troubling. He’s doing the same thing to the neighbor on the other side of him. He’s kind of angry and disturbed. I’ve met his wife. I may know why (Just kidding).
And for the person who asked me what I expect to get out of it? I don’t know. I guess compensation in some form if it has reduced my property value. As I mentioned, this neighborhood has a certain look and feel. His house seems to be crowding mine. I visually noticed this before I took a measurement, and sure enough, the reason is he’s 3 feet over. And the guy acknowledges that he built his house 12 feet from the property line. Why he told me that I don’t know. His house was built 1 year before mine, but the zoning law was already in place. 15 feet was established at least 7 years ago here.
Heh. In my neighborhood (built mostly in the early 60’s) the setback is 50’ from the side yard. There have been variances granted for carports and garages, but not for living areas. I loves me my 100’ between homes.
Variances aren’t handed out like candy. Well, in some communities they are, but usually approval of a variance has to pass a litmus test that usually goes like this:
[ul][li]There are unique conditions peculiar to the parcel, such as an unusual shape; which do not exist on adjacent parcels.[/li][li]The strict application of the zoning code deprives the applicant of rights commonly enjoyed by other land in the area or land with a similar zoning designation.[/li][li]The variance is in harmony with the spirit of the zoning code and comprehensive plan, and will not adversely affect property near the subject site.[/li][li]The conditions resulting in the variance request are not self-created through disregard or ignorance of the zoning code.[/li][li]The variance does not confer any special privilege that the zoning does not permit on other lands, structures or buildings in the same zoning district.[/li][li]The variance is the minimum necessary to grant relief.[/ul][/li]A variance should not be granted if “it’s just a little bit beyond the limit; it ain’t harming nobody.” If there’s a 15 foot side yard setback and people are constantly asking for – and getting – three foot variances, what;s the point of the setback? Why not change the setback to 12 feet? If that happens, people would still be asking for setback variances, using “it’s just a little bit over” as their justification. Thus, numbers in zoning codes are finite. Zoning bulk requirements shouldn’t be compared to speed limits; a car going three miles per hour over the limit will slow down eventually, but a building built three feet into a setback will be there for generations.
If a variance was granted, it sounds like a poor decision by the board of adjustment, board of zoning appeals or whatever it’s called in your community, but it’s binding; it’s probably too late to appeal it. If a variance was not granted, and the building was built into setbacks by error, it’s usually the property owner’s responsibility to resolve the variance, even if a permit was issues in error, or building inspectors were negligent.
I’m desperately looking for a legal cite, but about a decade ago in New York, a new high-rise apartment building in Manhattan exceeded zoning height regulations by several stories; it was much taller than neighboring buildings. The city issued the original building permit in error. Variance requests were denied, and appealed in court. Ther decision - the building owner was ultimately responsible, and had to remove the building’s upper floors to make it comply with zoning, even though the city issued the permit in error.
Zoning violations usually aren’t subject to a statute of limitations, but many courts allow viiolations to continue if it can be proven the municipality knew about the violations for a certain period of time – usually several years – and took no action to resolve them.
Yes, because unless you were a sucker, you already paid a lower cost due to the same reasons that you’re citing. By your own admission, you were the last one there, with the last house to be built. So even if you bought the empty lot years ago, why the hell did you decided to build there with all of these problems? I’m not saying the other guy isn’t wrong or isn’t a jerk, though.
As for landscaping in the easement (the utilities “right of way”) – in my area (and I’d assume that in general) there’s nothing wrong with that. You’ve got to keep permanent structures out of the easement, but the easement is still your property to do with (mostly) as you please. As you’ve said, it’s a “right of way” when the utilities need it, but you still can enjoy it.
Drainage issues – this is probably where you have something that you can work with. Go talk to your municipal planning people and see what relief you have here. If the neighbor mitigates the water issue he may still qualify for hardship on the variance. But if you really only care about the water as you allude to, then possibly focusing on the water dumping. Check out this link and see if there’s anything that strikes you as helpful.
It’s been said that 90% of variances wouldn’t stand up in court.
As I understand it, most state enabling acts are similar because they were generally drawn from the same model document as zoning came into widespread practice in the States. It was the case of the city of Euclid that brought use zoning to the status of Tested by SCOTUS, and therefore, there was an avalanche of zoning ordinances modeled on the Euclid example. Of course, state laws do vary and the OP will need to talk to the municipality (or an attorney) to get a proper answer, and even then the answer will depend on who is answering.
The steps for the OP to take on this would be to first to either go to the township hall and ask to see whatever info is available on the property in question, or to do a Freedom of Information Act request. This way, information is obtainable without specifically identifying a violation to the township. Many people come in and get their neighbors in trouble, completely by accident, by telling me about violations even though they don’t want any enforcement action done.
If there is a violation and the OP wants it addressed, then the OP can ask the township to take enforcement action against the property owner, who is the person responsible, and if the township pursues it, it will most likely end up in civil court. (In Michigan it probably would.)
Whether the township chooses to pursue the violation, one cannot say. Here, the township has the discretion of going after a violation. It is also possible that there exists a case of adverse possession, in which case the violation was brought up but never dealt with, and the problem may then be insoluble.
It’s quite possible that the township doesn’t have the facilities to check every setback that comes through. For example, I’m not specifically tasked with doing footing inspections and even if I was, I’m not a surveyor, so what good would it do, anyway? I could require surveys to be done for every land-use permit, but it would lead to a situation where a garden shed requires a $500 survey in order to build. In any event, the responsibility rests with the property owner to follow the rules; it is not the responsibility of the township to hold people’s hands every step of the way. In other words, it is quite possible that the township is unaware of the problem.
Another possible solution is to look at the deed restrictions for the development. If the deed restrictions are violated, then the neighborhood association, and sometimes individual property owners, may bring legal action without burdening the township with more hassles.
Based on what I’ve seen, it would be hard to argue that the OP’s property value is appreciably affected because the neighbor has a three-foot side-yard setback violation. The market for land simply isn’t efficient enough to make those sort of claims reasonable; also, the data do not exist to do such an analysis, AFAIK.
Ultimately, your questions will be best addressed by your own attorney. Make sure she does this sort of law.
As a final caveat, my experience suggests that it would be better to not poison a relationship with a neighbor over what is a minor violation of a fairly generous side-yard setback. After all, even if you’ve built to the setback, there is still twenty-seven feet between the houses and that’s not a bad distance. Compare the gravity of the violation with the effect on your house’s value when you put up a real estate sign and suddenly your neighbor has a toilet on his front porch and a nearly-junked El Camino in the front yard.
Thanks for the link. I hate to say this, but perhaps I was/am a sucker. The builder told me something that should have made me give the old :dubious: look, but since I had taken a new job, and was at the time dealing with a 2 hour 45 minute one way commute, I let it slide. I made some assumptions that clearly I shouldn’t have.
He told me that he would measure the boundary lines of my property (and pin them), but he wouldn’t get into any boundary disputes. This was my first home built from the ground up, and a new town. I honestly didn’t think about the distance between the two homes as even being an issue, because I assumed (yes, I know) that since the same builder had built all the homes, my lot was drawn out years ago (as was my neighbor’s) that I never even asked about the legal requirements of distances between houses. My eyebrows only raised after some very interesting comments from my neighbor, his wife (who has asked me to remove trees on my property that are “too close” to her house - if the house was 3 feet back, maybe this wouldn’t be a problem), and the “eyeball effect” that I mentioned above that told me something just didn’t “look” right.
But I’m also weary of this “let the buyer beware” mentality. Can I not assume that the builder has some responsibility to stay within the boundaries of the laws when he builds all homes? If I ever do this again, I will have a list of stuff to look for, but when I buy a new car, and the engine falls out, there are some warranties that take care of that (for the most part). Why is a house any different? Shouldn’t I have some basic expectation that the zoning laws were followed when an approved builder puts up an approved structure on an approved lot? If the car falls apart or does not pass a state inspection, can the dealership say, “Well, you should have had this brand new car checked out by a qualified mechanic, and even though we inspected the car before we put it on the lot, we can’t be held responsible for any structural damage after we’ve looked at it.” That’s hoo-hockey. If the zoning laws are just guidelines, then the neighborhood should be a free for all. And if that’s the case, I’ll put up a nice concrete barrier between his house and mine, and if he complains, I’ll let the attorneys fight it out.
As I said, I’m not looking to stick it to my neighbor, but if he gets stuck, that’s the way it goes. He knew what he was doing, so I won’t cry too many tears for him. There were three lots left in this neighborhood, and he picked the middle one. His house extends 3 feet over the 15 foot free zone on both sides. He is an engineer, and when I first bought the lot, he went on and on about how he picked his lot over mine because of the lay of the land, and the drainage issues I’d have. Well, it turns out that when they built the house on the other side, his basement began to flood, and he had to buy a sump pump. I (knock on wood :smack: ) have had no basement flooding issues, even though my house sits lower than his. Part of this is pure luck, but another part is that I’ve been able to deflect some of the drainage coming onto my property from his gutter spouts, especially the PVC pipe that drained directly into my back yard.
However, the two side gutter spouts draining directly from his property onto mine, has been seeping into the ground behind my retaining wall, keeping the ground soft and shifting. You can already see the wall shifting. The water is also rolling over the wall and going onto my driveway, not a fun thing in the winter. Three feet may make the difference. Maybe it wouldn’t. But I’ll be damned if I’m going to take this if I don’t have to.
Look. I’ll admit that I think this guy is a jackass. He is an arrogant boob. I probably wouldn’t have even thought about this much if he wouldn’t have bitched about moving the PVC pipe, bragged about how he’s 6 feet wider on both sides of the house, his wife didn’t complain about trees that were there before we moved in, and threatened to put up a 9 foot privacy fence (which is against the neighborhood by-laws, but the enforcement of these are a joke, too). I told them they can put any fence up they desire as long as it is three feet back from the property line, and it complies with the by-laws. I’ve done nothing but bend my body into a pretzel with this couple because we *are * neighbors, but I’m not going to be a doormat for neighborhood unity. No one else likes these folks either, from what I can tell. But I’ve never solicited opinions. People have volunteered their own experiences with these two.
However, because he’s an arrogant jackass, that doesn’t make him wrong or out of bounds with the law. And I am not looking forward to spending money on an attorney if at the end of the day they are just going to grant him a variance. But I do know this… no variance has been granted, according to the zoning office.
Thank you all for the replies thus far, and please keep them coming. I will be contacting an attorney before the end of next week. (sigh)
(Just kidding).