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Andrea, Esq.
Andrea, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 11730
Experience:  I have practiced law for 25 yrs. with an emphasis on real estate, business law, criminal defense and family law.
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We live in Jax FL. Built our home 19 years ago and was last

Customer Question

We live in Jax FL. Built our home 19 years ago and was last home in our area built so we landscaped our property so there would be no water damage. The property in question was built 10 years before us and is on it's 4th owner. The 3rd owners built a pool and elevated their back yard and we started noticing some water problems from that but not enough to report. The present and 4th owners unfortunately have as of April 1st 2013
1. Defoliated their property in pathways to our property
2. Built a retaining wall in front of their house to REDIRECT water to us
3. Built a very thick driveway to add to REDIRECTING of water to us
4. Installed French drains from their street and the front of their property that also gathers 3 other residences rain water from their street.
5. PVC piping that is large enough for a commercial business to use. Numerous pipes I have pictures of them installing as of April 2013
6. New building construction 35 buy40 garage giving additional water and drainage problems. Not doing anything to prevent additional drainage to our property a gulley is directed all around building site washing down to our property.
7. Having serious problems with Mosquito's, flees and ticks from all of this drainage and standing water. So much water comes to our property and no where for it to go.
8. the redirected drainage from this property flows mud, silt, and debris drainage of contaminated water into our pool. We have a fiberglass pool and standing water could eventually lift our pool out of the ground.
9. Our air conditioner units are being flooded and our office has standing water underneath it. We have computers and important client info in this office. We had to dig a ditch around our sunroom so water flow wouldn't come into our sunroom.
I have over 50 pictures showing damages and installation of all mentioned. tried to talk to the neighbor 3 times. All documented. Not working with us. Say's he doesn't care.
10. Topsoil and sod all gone on one whole side of house, and 3/4 of back yard. Roots
of trees exposed. Totally Saturated land.

Called the city to come out to see property. Many calls. City sent someone out only to move that person and finally sending another person out with Municipal Code Compliance. Have a n additional call to Development Services, and Building Code Enforcement . City id trying to get out of helping me making them come out.
Also, I'm calling permits tomorrow and finding out about the permits what they were allowing him to do, and who signed off on it. I was never even notified by city and of this was even going to take place. The homeowner said he got permits, and the city said he had gotten it for the garage, driveway, and landscaping. Either the city really messed up or this guy overstepped his permitting and came back later and did a lot of this additional PVC piping.
The city is saying because we are private property they don't have to do anything. I told the city we are on city sewer on our road even though it was private the city had access to it because all of the neighbors on our road had the city to put in city sewer 5 years ago.
The neighbor in question is to the back of our property and not on our street.
This neighbor could have drained all of this excess water to the front of his property and had a sump pump to pump it out to his 1/2 acre in front of his property where his road has 2 city large French drains and not directed to our property.

Clearly the city is involved and this neighbor had definitely over stepped.
The city is coming out Friday morning could you give me some advice?
We are due to have major weather problems this year in FL. Three rainfalls have caused done all of this. We will be underwater with hurricane rain and wind.

Please give me direction about the cities responsibility, neighbors responsibility and maybe even my homeowners Insurance getting involved. I have already written a lengthy email to two city officers with code compliance. Do I go downtown and bring all these pictures and try to get them involved?

I recently got flood insurance. I do not live in a flood zone and have never had flooding until now and let me also mention my next door neighbor is involved in this water problem from this neighbor.
Water is like a river flowing through my back yard to her property.
In my yard there are areas up to my knees.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Andrea, Esq. replied 1 year ago.

Hi, Susan, and Welcome to JustAnswer, My name is XXXXX XXXXX my goal is to provided you with Excellent Service,

 

I am so sorry to hear about your situation and will help in any way I can,

 

Here is what I would do if I were in your situation:

 

1. Contact your homeowner's insurance company. The terms of your policy will spell out what type of damage they cover. They may or may not consider the situation that has been caused by your neighbor as falling within their definition of "floods", but since there is only a limited time within which insurance companies allow you to file a claim, you should file it so that they do not later say that you "could have filed" a claim, but did not do so in the required period of time. So, it is better if you file your claim and not allow them to use the excuse of "filing too late";

 

2. Whether or not the City is responsible will depend on whether they approved your neighbor's plans and issued a permit based on those plans. If so, then they are one of the parties that are responsible. However, if your neighbor submitted plans which the City approved and on which they issued a permit, but which your neighbor did not follow, and actually used another set of plans which the City had not approved, the City might still be held liable. This would occur if the City sent an inspector to your neighbor's property to inspect the completed work, but did not report that the work was not completed according to the plans he submitted, then the City can still be held as one of the parties who would be liable to you;

 

3. Regardless of whether or not the City approved the plans and issued a Permit, your neighbor still has a legal obligation not to cause any damage to adjoining property by any action he takes on his property. So, even if the result is that the City is not liable to you, your neighbor remains liable to you for the damage his actions have brought upon your property.

 

_____________________________________________________________________

 

If I have not Answered your question completely, please let me know by using the "Reply" button and I will be glad to explain further,

 

Please be kind enough to rate "Excellent Service" so that I receive credit

for assisting you,

 

 

Bonus and Positive Feedback on survey is very much appreciated,

 

 

ANDREA

 

 

Customer: replied 1 year ago.


Thank you so very much for your response. However one of my questions to you was --shouldn't the city have given me notice of all of this work and change was going to be done on my neighbors property? I have a friend that said a notice was given to her on a similar situation a couple of years ago. Notifying her building was being done on her neighbors property next to her. If the city had done this with me I could have expressed our concerns, and had this water altered to the front of his property where he had ample land to soak up the problem with excess water, and 2 city French drains at the end of his street leading directly up to his home to catch water and take excess water to the river.


1. should I have been given notice by city?


2. could neighbor run this line to city drainage to take water to river?



Also, I forgot to mention early this morning with all of my many other my concerns to you this neighbor is trying to say and use leverage against us( comparing apples to oranges) we are on his property with our fence. The black chain link fence was put up 14 years ago, and is correct on all corners but one which is squared off by 3 feet only in that corner. This was never done to take property but keep trees from being cut and keep buffer. When I called survey dept. years ago it was explained we have overlapping property in Mandarin Jacksonville FL. as I mentioned we built our home 19 years ago and we have a septic field that covers that entire area to fence. The 3rd owners of said property in back of us were doing a survey 9 years ago to refinance their home and saw we were off a little and had us go to a title company to get it put in public records. The title company understood Mandarin area, and knew we were not trying to be a problem told us they were not going to file this with the city because they thought it was so ridiculous. So in the 14 years we've had this fence up and through two additional families there has never been a problem. This neighbor causing all of the water problems, and building issues has been living in this home for 4 years and 8 months and closed on the house knowing about the survey issue but only now is bringing it up. I suppose like the city said there is nothing on record or he would have brought that over to us and addressed it to our attention earlier. Any way I looked this up a couple of weeks ago and I believe this is called adverse possession after 7 years of possession?


He of course is trying to threaten us with this giving him leverage with what he has done pertaining to these water issues he has caused. Again, he never pursued anything when he moved into property, and doesn't have record of anything on file only what previous owners told him.


3. Can he use this against us as leverage like he is saying even though our fence has been up for 14 years or could we claim adverse possession ? The title company thought it foolish all those years ago, and didn't even record it. No one has any paperwork.


 

Expert:  Andrea, Esq. replied 1 year ago.

Hi, Susan, Thank you for your follow up questions and the opportunity to explain further,

 

Please allow me to Answer your last question first,

 

1. You are correct that it is like comparing apples to oranges. Your neighbor cannot use this against you, and the botXXXXX XXXXXne is that he certainly cannot use this as a reason, or excuse to cause damage to your property by diverting water from his property onto yours;

 

2. You also asked, shouldn't the City have given you notice. The Answer is that where the City has approved the plans submitted by a homeowner and they appear satisfactory to the City which issues the individual a Permit based on those plans, the City does not have an obligation to notify the surrounding lot owners of the neighbor's plans, If any notice is required to be given, the obligation would be on the individual who submitted plans and received the Permit, not on the City. With all due respect to your friend who told you she received notice, I believe she is mistaken.

 

However, even without an obligation to notify you, the City can still be liable to you because it had an obligation to inspect the neighbor's property upon completion of the work and had the City inspected it properly, it would have revoked the Permit, or compelled the neighbor to divert the drainage away from your property.

 

I am still of the opinion that your neighbor used two different sets of plans; one set was for the City to issue him a permit and which did not accurately reflect what he was planning to do, and a second set of plans which he used for the actual work that he contemplated to be done on his property.

 

_________________________________________________________________

 

 

If I have not Answered your question completely, please let me know by using the "Reply" button and I will be glad to explain further,

 

Please be kind enough to rate "Excellent Service" so that I receive credit

for assisting you,

 

 

Bonus and Positive Feedback on survey is very much appreciated,

 

 

ANDREA

 

 

Customer: replied 1 year ago.

You have done an Excellent Job answering my questions however, if you could explain just a little more clearly to me about the fence being up for 14 years. Would I ever have to move it being that we have had it up so long, and nothing noted by the city in the records as I mentioned to you in last email? It is off 3 feet in one corner. Would this be considered adverse possession because nothing was ever done about this?


I called the city permits and it looks like you have been correct. :-) He doesn't have a permit for the retaining wall, or permit for PVC piping put in the week of April the 14th. French drains were also installed and no record of permits on that as well.


 


The only permit was in Feb 4,2013 permit, final inspection


Feb 15,2013 For driveway and pavers leading to driveway from front of house.


 


Permit for 24by30 Garage Building March 11,2013 inspected March, 18 2013


 


All of this other as mentioned retaining wall PVC Piping done on the week of April the 14th no permits we can see.


 


Proper drainage needs to be done around garage as not to flood our property. Any advice on that one as well to be intelligent for city inspector tomorrow?


 


You really have been just wonderful and so helpful in guiding me.


 

Expert:  Andrea, Esq. replied 1 year ago.

Hi, Susan, Thank you for your reply and for your compliments, I appreciate it,

 

When an individual acts in the way your neighbor has acted, there are several things worthy of consideration. The first one is to take everything the neighbor says with a grain of salt. Second, we cannot say how prevalent this is, but property owners are known to apply for a permit for certain work, but do much more work than the Permit allows, thinking that neither the City, nor anyone else will ever find out. Third, Do not believe everything you hear because people often mean well, but they often misunderstand or misstate what they thought they heard, just as your friend did, who told you that the City had given her notice for a similar situation.

 

My apologies for missing the question of the fence, I thought I had addressed it. Please allow me to give you a brief overview of the law of adverse possession. In the same way that adverse possession relates to the title to property, so easement by prescription relates to acquiring rights to use the property owned by another. The requirements for acquiring title by adverse possession, or acquiring an easement and the right to use property owned by another individual are the same. The person claiming this right must:

 

The occupancy or use of the property must be open, continuous, notorious, under a claim of right and adverse to the interests of the owner. This means that the person asserting these rights must do so openly and continuously without a break in continuity, and the person knows that it belongs to another individual but claims the right which is adverse to the rights of the true owner. So, in order to acquire title by adverse possession, or acquire an easement by prescription, the party asserting these rights must do so, knowing that he has no legal claim or right to do so. Therefore, if a party asserts these rights because he or she thinks that the property belongs to them, then they are not asserting a right which is adverse to the owner and, therefore, cannot acquire title by adverse possession, nor acquire a right to use part of some property through an easement by prescription.

 

In order for you to be able to claim any right to that portion of the property upon which the corner of your fence rests, you must be able to prove that you knew the property belonged to someone else, and asserted a right adverse to the true owner (plus all the other requirements I stated above ).

 

With respect to the City inspector, although he or she should have done their homework and already know what your neighbor could and could not do and what work the Permit actually allowed, you can point out the work anyway for which your neighbor never applied for a Permit and also all the damage that the non-Permit" work has done to your property and will continue to do to your property, if your neighbor is not Ordered to undo all that he has done and specify everything to the City Inspector, including the PVC pipes, the direction in which they direct the water, the improper drainage onto your property, etc.

 

__________________________________________________________________

 

 

If I have not Answered your question completely, please let me know by using the "Reply" button and I will be glad to explain further,

 

Please be kind enough to rate "Excellent Service" so that I receive credit

for assisting you,

 

 

Bonus and Positive Feedback on survey is very much appreciated,

 

 

ANDREA

 

 

Andrea, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 11730
Experience: I have practiced law for 25 yrs. with an emphasis on real estate, business law, criminal defense and family law.
Andrea, Esq. and 8 other Real Estate Law Specialists are ready to help you
Expert:  Andrea, Esq. replied 1 year ago.

Hi, Susan,,

 

Thank you for the "Excellent Service" rating, I greatly appreciate it. If you have additional questions, or have questions in the future, please feel free to ask for me by typing my name at the beginning of your question, like this,

 

"For Andrea only .......... "

 

 

Thank you again for allowing me the opportunity to be of service,

 

ANDREA

 

Customer: replied 1 year ago.

Andrea, can I get an attorney to give an assist and desist order to this neighbor. He would not allow the city to come on his property to check it out and the city is telling me they can do nothing about making him agree to their visit. I asked the city why they couldn't get a court order to get on the property? They said they couldn't because it was private property and it would have to be something they could physically see from the street in order to do that. The neighbor said to them he didn't do anything to that family and would not allow them to go on property.


 

Expert:  Andrea, Esq. replied 1 year ago.

Hi, Susan, Please accept my apologies for the delay in responding, but I was at a 3 day conference.

 

The City is lying to you. Trust me, if they issued a permit to your neighbor to do work on his property, the City would have every right to go onto his property to check the work and confirm if it was done according to the plans he submitted to the City and on which the Permit was issued. Even though they already inspected the work for which he got a permit, they would be permitted to go onto his property to double check the work at which point, they would see the other work he did for which no permit was either requested or issued. I can prove to you that what I am saying is correct - If someone had not applied for any permits but did all the work on his property without a permit and it posed a hazard to one or more of the surrounding properties, if what the City was telling you were true, nobody would be able to go onto that individual's property and the illegal work would be permitted to stand. Remember, this is a civil matter, so the police would not be involved and the City would not need a search warrant.

 

In Answer to your question about a "Cease and desist", yes, you can have a lawyer write him a letter, but the lawyer does not have the authority to issue an "Order", that would have to come from a Judge. The lawyer can say that he is giving him X number of days to correct the problem or you will file a lawsuit against him. If the neighbor does not correct the problem, you must be prepared to file a lawsuit so that he does not think that you are bluffing and then would not take you seriously,

 

________________________________________________________________________

 

 

Please be kind enough to rate "Excellent Service" so that I receive credit

for assisting you,

 

 

Bonus and Positive Feedback on survey is very much appreciated,

 

 

ANDREA

 

 

Customer: replied 1 year ago.

You have been such a blessing!!!


 


I will talk to the city today and relay to them they need to go back on the property and recheck work, and verify what has been done because they have permits to do so . These are right a way permits for driveway, and pavers for sidewalk and new building construction Interesting, I had mentioned that very concern about permits and couldn't they go back out there.


 


1. Can I request a copy of their finds?


I need a copy of permits that were issued. I called the city and got the information over phone and was told I could come down to the archives downtown and get them. That's how I got the date of permits one in Feb and one in March.


He put all of this piping in the week before he built his Garage in April the week of the 18th. ( the permit of the garage was issued on March 11, 2013.) Nothing that I could find was recorded about installation of the large PVC piping.


 


The city keeps trying to use the excuse private property although they allowed him to be permitted.


Kevin who is an engineering technician with Development Services who came out with
Code Compliance said he would give the surveys I gave of( our prop. and this neighbors) and the 50 pictures I made copies for them proving installation of piping, and all water damage to his boss who would be in Monday, 6-10-13


 


Previously one of the supervisors with the city said he did not have to get permitted by the city for all of his PVC piping and drainage ???? He could just do that, and I would have to take that up legally with the neighbor. ???? and again because this was private property the city could not get involved. I would have to take that up with an attorney and take legal action on my neighbor.


 


Could you please tell me what measures you would take now with the city in coming out to investigate our neighbors property? I will continue to follow through.


 


Thank you so much.


 


 


 


 


 


 

Expert:  Andrea, Esq. replied 1 year ago.

Hi, Susan,

 

The City will penalize your neighbor for failing to obtain a Permit for the work that he did, but will not go after the neighbor to pay you for the damage you did because that is a private matter. The City told you what I stated in my previous Answer, it is a civil matter and you will have to get a lawyer to file a lawsuit against your neighbor for an injunction to stop the damage he is doing to your property. Your lawsuit will also demand monetary damages for what the neighbor did to your property, as well as attorneys' fees.

 

________________________________________________________________

 


Please be kind enough to rate "Excellent Service" so that I receive credit

for assisting you,

 

 

Bonus and Positive Feedback on survey is very much appreciated,

 

 

ANDREA

 

Customer: replied 1 year ago.

Andrea, thank you so very much.
1. My adjacent neighbor has written the city a very detailed letter of the issues we both are experiencing, of course mine being much worse. I seem to be having a problem getting the city to go back on this neighbors property to check their permitting and how it was or not followed. How can I make them? I'm pursuing it as though they have to do this because I don't want this neighbor to be given a right of way of this new water flow.


2.Again can I request a copy of their finds by going back out in checking their permitting, and any additional finds such as the pictures of installation of PVC pipes I gave them?


3. I hate to involve an attorney at this time but I may have to just to get them to go back out on neighbors property. I was trying to work it in such a way as to get their help. I'm starting to question the city, and wonder if I would put them in a lawsuit as well if they don't help out.


 

Expert:  Andrea, Esq. replied 1 year ago.

Hi, Susan,

 

The Terms of Service to which both the Experts and Customers must adhere state that the customer asks a question, receives an Answer and if there is something which the customer does not understand in the Answer, they may ask a follow up question for clarification at no additional charge. If a question is not for clarification, it is a new question and must be placed on a new question page and when the Expert Answers, the customer has the opportunity to rate the Expert's service so that the Expert can receive credit, otherwise the Expert does not receive credit at all for their time or effort. If a question is not for clarification, it is a new question. I have violated the site's rules because I have Answered five questions, but you have given only one rating. Please understand that I would like to help you, but I do not want to get into trouble with the site.

 

1. Your neighbor will not acquire a right of way for the run-off water if you assert your rights. The only way that you can compel the City, or any governmental authority to do what they are authorized to do is by filing a Petition or a Writ of Mandamus. This is a bit complicated and you would need a lawyer to get the process moving;

 

2. You can demand that you receive a copy of their findings especially since you gave them the pictures of your neighbor's property because you took those pictures as a private citizen, not as agent of the City. Therefore, your neighbor cannot claim that the City came onto their property illegally because the pictures were taken by a private citizen;

 

3. You could sue your neighbor for the damage done to your property without an Attorney, if you sue in Small Claims Court, if the amount was within the jurisdictional limit of the Small Claims Court in your County. You would not be able to join the City in the lawsuit because Small Claims Court does not hear cases in the nature of Mandamus. In addition, you really should have an Attorney if you intend to pursue Mandamus,

 

__________________________________________________________________________

 

 

Please be kind enough to rate "Excellent Service" so that I receive credit

for assisting you,

 

 

Bonus and Positive Feedback on survey is very much appreciated,

 

 

ANDREA

 

 

 

 

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