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CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10244
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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I have city and HOA approval to build a deck on my back

Customer Question

I have city and HOA approval to build a deck on my back patio. Now that construction has begun my neighbor has threatened to sue me if I continue saying it will block their view of the trees. I was required to get signatures from neighbors in order to get HOA approval...which I did, however the current neighbors bought the place after I got the signatures. I told them about it when they were buying the place and had no objections at that time. What do I do?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 1 year ago.

Hello, My name is ***** ***** I will assist you today. Please give me a few minutes to write a response and identify any additional resources for you.

Expert:  CalAttorney2 replied 1 year ago.

I am sorry to learn of this situation. (We usually refer to your neighbor's complaint as a "borrowed view" - meaning they are currently enjoying an enhanced view because you have not yet built out your structure in the way you are entitled to do (we see similar situations where there is an empty lot with no home built on it and a neighbor objects unreasonably when the buyer submits plans for their new home simply to delay construction).

You have two courses of action that you can take here:

  1. Continue construction and wait to see if they actually do sue you. If that happens, you would present as defenses the fact that you had gone through the permitting process, that their seller (their "predecessor in interest" had agreed to the construction/view sharing issue), and most importantly, that you had disclosed the issue to them prior to purchase - so that they had actual knowledge of the matter prior to their purchase - so they would be "estopped" (meaning barred) from raising these arguments later). The downside to this is you would potentially have to pay costs of litigation to defend against this action. (Of course, the neighbor would have to spend their own money to bring such a claim, which is often a deterrent in the first place, along with the fact that their claim is not terribly strong).
  2. You can try to mediate the matter with your neighbor - this will cost you money and time upfront and it appears your new neighbor is already being unreasonable. But if it works it may save you some time in the future. The downside to this is that if you end up changing your plans for the deck you may have to go through some of the permitting process again (this depends on your local zoning laws and HOA procedures).
Customer: replied 1 year ago.
How do I get to mediation if they sue me?
Customer: replied 1 year ago.
Is their argument with the HOA and city and not me, if I already have approval?
Expert:  CalAttorney2 replied 1 year ago.

If you want to try mediation before they sue - you would want to contact a mediator (try your local bar association - most provide referrals to local mediators).

If you end up in litigation, your matter will be required to participate in ADR (mediation) at some point in the litigation process unless you can show the judge some good reason why the matter is not qualified for mediation (judges are not happy with parties that do not at least try mediation) - so that will take care of itself.

Your neighbor is trying to bully you - they can sue you, the city has no liability regardin this issue, and while the HOA may carry some responsibility for approving the project, this really isn't the HOA's problem (it sounds like they properly followed the procedure to approve your construction). But the HOA will not defend your right to construct the deck.

So your neighbor is attempting to bully you into stopping your construction project.

That leaves you with the two options above - I cannot tell you which option to take (we cannot advise you on this particular forum, you need a local attorney to do that) - but this is kind of a situation where most attorneys would tell a client that the neighbor either needs to "put up or shut up" - meaning have our client continue building with their properly approved project and force the neighbor to actually take action before worrying about it.