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legalgems
legalgems, Arbitrator
Category: Real Estate Law
Satisfied Customers: 7457
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My next door neighbor installed an outdoor furnace to heat

Customer Question

My next door neighbor installed an outdoor wood furnace to heat his home. It sits about 30 feet behind his house and about 100 feet from mine. It is constantly billowing smoke towards and into my house all winter long.
I can smell the smoke in my house and some of my furniture smells like it. We have to hurry in and out of our garage to keep smoke from getting into the house, my kids can't play basketball in my driveway half the time, our pets come back in the house smelling like smoke, we can't open our bedroom window at night when we sleep, we can't use our backyard without breathing smoke, etc, etc, etc...
My county has no ordinance against the furnace, but it is an absolute nuisance and has to be a health hazard. It definitely inhibits our quality of life in the fall, winter and early spring. I have tried talking to the neighbor, but each time he says there's nothing I can do about it and i just need to keep my windows, doors and garage closed.
I called the sheriff out once and he says there is no law against it but he can't understand why someone would put a furnace so close to a house.
Is there anything I can do to put an end to the annual winter misery?
I live in Troutville, Virginia.
Submitted: 24 days ago.
Category: Real Estate Law
Expert:  legalgems replied 24 days ago.

Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

Expert:  legalgems replied 24 days ago.

Do you know if a permit is required (ie is it a permanent structure or a portable furnace)?

Customer: replied 24 days ago.
I don't know if a permit is required. However, it is definitely a permanent structure.
Customer: replied 24 days ago.
I attached a photo
Expert:  legalgems replied 24 days ago.

Thank you for your patience;
apparently your response notification to me was delayed. I begin to research this as soon as I received notification of your response.

The elements of a nuisance claim of action, which is based on tort common law, is as follows:
1. Plaintiff engaged in an activity;
2. which unreasonably interfered with plaintiff’s use and enjoyment of their home and
3. the interference was so serious that plaintiff should not be expected to bear it without compensation.

Since it is a common law tort, this means that there is no statute- rather past precedence prohibits such conduct. So basically, the affected homeowner would typically first send a cease and desist letter, and if that was ineffective the next step is to file a lawsuit, alleging a nuisance, and requesting 4 things:
1. damages suffered that are economic (ie any air filters, for example, to help mitigate damages)
2. special damages, such as punitive damages, designed to punish the defendant and others from similar activities. The more offensive the act, the higher the damages. So evidence such as pictures and witnesses, and even a local inspector's report (ie air quality) would be helpful
3. attorney fees and costs
4. an injunction- precluding the defendant from engaging in similar action in the future.

It may be worthwhile to contact the fire department to see if it poses a fire hazard and violates any fire laws.

Thank you for using Just Answer.
I hope the information I provided is useful. If you need further clarification please post here and I will reply as soon as I see it; otherwise, Kindly

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Thank you and take care!

No attorney client relationship is created as this is general legal information, not advice; and a personal attorney should be hired if one wishes specific legal advice for their personal situation.

Customer: replied 24 days ago.
Is the cease and desist letter something you can help us with?
Expert:  legalgems replied 24 days ago.

Unfortunately I can only provide information and cannot draft legal documents. You can hire a limited scope attorney (flat fee. No retainer) to help keep legal costs down. One can also find a template online but I find it helps to have legal letterhead so they know you are serious, and given the amount of smoke I imagine you want the letter to be as effective as possible!

Expert:  legalgems replied 22 days ago.

Hello again; just checking in to see how things worked out;
if you have further questions please don't hesitate to reach out to me here on Just Answer.
Thanks!