Legal Question in Real Estate Law in California
Summary
In February of 2010 my neighbor Betty instructed her contractors to run her new driveway on to our property using our fence and expensive brick work as a form. No release agents or barriers were used and this caused concrete to permanently fuse to our redwood and brick. It cannot be removed without severely damaging our fence and bricks.
February 2011my son and I stretched a line from the front and rear lot markers from the neighbor�s 2005 survey and we discovered the encroachment that we had suspected. Photographs of the line stretched between the markers and Betty�s curb poured on to our brickwork and fence were taken. We hired an attorney, David Mans to try and resolve the situation. If we were to sell our property this encroachment would certainly complicate the sale. On February 17, 2011, David Mans sent Betty a letter demanding that she remove the encroachment and requesting her to contact him. This letter has been completely ignored.
On September 16, 2013 we hired Land Surveyors, Inc to survey our property. It clearly shows the encroachment on to our property by .75 of a foot or 9 inches. The survey confirmed what we had suspected and showed the exact amount on the encroachment by a licensed surveyor. To date there has been no attempt made by Betty Russ to remove the encroachment or even to address the situation.
On 4-18-2014 our Small Claims Case was decided at the Alhambra Courthouse and the judgment was in our favor; however, the judge considered this to be a �Permanent Encroachment� because we did not pursue a legal course of action within three years of our neighbor installing her driveway on to our property. As a result the encroachment is still in place and our monetary award is one tenth of what we had asked for, which was going to the removal of the encroachment.
We did not know of the encroachment until February of 2011 when my son and I stretched a line between the markers. Our attorney did not inform us of any time limit. We were unaware that it was even possible (and affordable) to seek a remedy through Small Claims Court until 2013 after doing extensive research. The encroachment was not known for certain until after the survey in late 2013.
Is there anything that we can do to remove this encroachment and to replace the fence and brickwork that our neighbor has permanently damaged?
Thank You,
Chris Merrill
2 Answers from Attorneys
You shot yourself in the foot when you chose the small claims forum. Once a plaintiff chooses small claims as the forum, they are bound by the judgment and cannot appeal, and cannot file a new case based on the cause of action litigated in the small claims action. The attorney that told you to seek recovery in the small claims lacked understanding of encroachment law and probably thought of you as a pest that he did not want to work with.
I might add that your question reveals too much information about the identities of possible parties to litigation, and LawGuru participating attorneys are not supposed to respond in such situations.
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