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Another property damaged my property by illegal diversion of

Hi another property damaged my...
Hi another property damaged my property by illegal diversion of storm water. I have not sued them yet but now they are selling their home trying to run from me. Viewing your article.
JA: Because real estate law varies from place to place, can you tell me what state this is in?
Customer: California
JA: Has anything been filed or reported?
Customer: Nothing filed, but not sure what you mean by "Reported"?
JA: Anything else you want the lawyer to know before I connect you?
Customer: Can the sale be stopped with a lawsuit or do I even care if its stopped is the question?
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Answered in 1 minute by:
9/25/2017
Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 39,094
Experience: 17 years real estate, Realtor. Landlord 26 years
Verified

Hello and welcome! My name is ***** ***** I am a licensed attorney and will try my best to help with your situation. There may be a slight delay in my responses as I type out an answer or reply.

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You may also be offered a phone call, but those don’t come from me and are offered by JustAnswer. If you have requested a phone call with an attorney, your request will post to other experts that do offer this service. When another attorney accepts your request you will get additional instructions.

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Have you filed any legal action against the neighbor?

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How long ago did they divert the water?

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And presumably you have contacted them about the problem with no resolution?

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thanks

Barrister

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Customer reply replied 2 months ago
No action filed, didn't realize they were going to sell the home and run. They diverted water in January. I was awaiting a title claim before I moved to consider filing. Yes, they are fully aware of our complaints against them.
Customer reply replied 2 months ago
January 2017

Ok, then you would have a legal action against them for "private nuisance". A private nuisance is an interference with a person's enjoyment and use of his land. The law recognizes that landowners, or those in rightful possession of land, have the right to the unimpaired condition of the property and to reasonable comfort and convenience in its occupation.

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So the diversion of the water would be a private nuisance if it is damaging your property and you can sue for an injunction to force them to abate the nuisance and to pay for any damages.

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If the house hasn't closed yet, you can file suit and then file a "lis pendens" on the property and that will cloud the title as that is official notice that a property is the subject of a lawsuit.

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It will mess up their sale and force them to settle with you so that they can get their closing done..

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thanks

Barrister

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Customer reply replied 2 months ago
People are telling me that injunctions are very risky and expensive. Assuming that is correct, by chance, is a "lis Pendens" a cheaper route?....or an easier lawsuit (so to speak)?

If you file suit, then that is the judge's only option to stop the problem... an order to the neighbor to abate the nuisance by taking actions to property divert water. So no, it isn't "risky", it is the only thing the judge can do assuming that you prove that the neighbor's water is damaging your property.

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As for expense, that depends on what attorney you hire, but you can ask for your legal fees since you wouldn't be incurring them but for the neighbor's negligent actions.

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A lis pendens is just a public notice of legal action that instantly clouds the title. So if you filed suit, and wanted to stop a sale, you file a lis pendens, which is just a legal notice filed in the land records that shows that there is a lawsuit about the property.

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But filing the lis pendens will put pressure on them to settle with you by fixing things rather than fighting about them in court and losing not only the lawsuit, but also their sale of the property.

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thanks

Barrister

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Customer reply replied 2 months ago
There would be 2 plaintiff's actually. The defendant property affected 2 properties, almost the same amount of damages. Any referrals to handle this kind of case? Given that there are already buyers and they are in contract, we would need to proceed fast. Please advise.

Unfortunately, I am not allowed to represent customers from the site or recommend anyone personally under my agreement with JustAnswer. However, these are a couple sites that we attorneys actually use if we need local counsel in a state where we aren't licensed. Further, customers have consistently reported good results with these sites:

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www.martindale.com

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www.lawyers.com

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They screen their attorneys based on geographic location, area of practice, time in practice, cost and customer reviews.

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thanks

Barrister

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Customer reply replied 2 months ago
Hi I was going to file a lawsuit using Judicial Forms Counsel tomorrow, but read up that only an attorney can file the lis pendens. Is that true or incorrect information that I found online?

That is incorrect... All a Lis Pendens is is a sworn statement that a legal action is filed that involves a piece of real estate.. But you have to ask the judge to order that the Lis Pendens can be recorded under CA Civil Procedure 405.21.

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An attorney of record in an action may sign a notice of pendency of action.  Alternatively, a judge of the court in which an action that includes a real property claim is pending may, upon request of a party thereto, approve a notice of pendency of action.  A notice of pendency of action shall not be recorded unless (a) it has been signed by the attorney of record, (b) it is signed by a party acting in propria persona and approved by a judge as provided in this section, or (c) the action is subject to Section 405.6 .

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It was my pleasure to work with you and help with your question. If you ever need me in the future, you can post a new question with "For Barrister" in the caption and the JustAnswer employees will get it to me.

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If you feel I have answered all your questions, I would very much appreciate a 5 star rating by clicking on the rating scale on your screen as that is the only way I receive credit for my work.

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Thanks much

Barrister

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Customer reply replied 2 months ago
Given the above, I assume my only cause of action is Negligence? I didn't see Private Nuisance in the Judicial Counsel Forms.

There is not a standard template for nuisance as it is entirely fact dependent.. So there won't be a form to fill out to make your case, it will have to be an actual complaint you draft up setting out your allegations about what the neighbor has done what your damages are and what you want the court to do about it..

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This is a link to a sample Nuisance complaint: CA Nuisance Complaint

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thanks

Barrister

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Customer reply replied 2 months ago
Why only nuisance? Why not negligence?
Customer reply replied 2 months ago
A friend is suggesting I am going to get into trouble:I don't think a lis pendens is appropriate here since the lawsuit does not involve title or right to possession. See CCP 405.4A notice of pendency of action is available in actions involving "real property claims." A "real property claim" is the cause or causes of action in a pleading which would, if meritorious, affect: (1) title to, or the right to possession of, specific real property; or (2) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility. [Code Civ. Proc. §405.4]I think you can get yourself into trouble with a bad lis pendens here and I urge you to rethink this.

It will affect the title if you get a judgment against the neighbor as it will be a lien on the property and cloud the title..

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Don't listen to people giving you legal advice unless they are an attorney..

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And sure, add a count for negligence as well..

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Customer reply replied 2 months ago
The original course from the top of this thread was to file a lawsuit and then file a lis pendens. Are you backing off of that now? A judgment is not for 2-4 years so the house will have already been sold. Your lis pendens idea would have worked if I am allowed to do it. Can you check again since you suggested it, at first?

The original course from the top of this thread was to file a lawsuit and then file a lis pendens Are you backing off of that now? ​.

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Nope...not at all.. Maybe I am not being clear.. A Lis Pendens is just a legal notice of a legal action...that is it.. It is like putting a notice in the paper saying "Hey everyone in the world, I am suing the neighbor because his property is doing something to mine and causing damage to me". So when you file a lawsuit, you file a Lis Pendens to basically encumber the property title so the seller can't convey clear title until this is resolved. This creates a cloud on the title so the seller can't sell it free and clear.

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It doesn't matter if the lawsuit takes a month or 10 years, the Lis Pendens creates a cloud until it is released... That is why the seller would want to get this resolved as quickly as possible with you so as to get you to drop the lawsuit and release the lis pendens so they can convey clear title to the buyer..

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I hope that is clearer..

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Customer reply replied 2 months ago
No its not clear. The rules are specific against me on (ever) getting a lis pendens in California as I don't have a title claim with my lawsuit.
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See CCP 405.4A notice of pendency of action is available in actions involving "real property claims." A "real property claim" is the cause or causes of action in a pleading which would, if meritorious, affect: (1) title to, or the right to possession of, specific real property; or (2) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility. [Code Civ. Proc. §405.4]
=======I was hoping you were going to say, "well because of the injunctive nature of the claim then a lis pendens would be prudent" but I have not seen you say that.
Customer reply replied 2 months ago
Here is a legal blog that speaks to my concerns:
https://www.californiabusinesslitigationattorneyblog.com/2015/06/how-do-i-put-a-lis-pendens-on-a-property.html
Customer reply replied 2 months ago
The problem here is the person that is selling the property is *most likely* leaving the country after she closes - I won't be able to collect on my winning lawsuit. The buyers are wanting to close this coming Friday. I have made the buyers aware of my claims and they don't care, they are buying the property despite me and my claims in the tens of thousands in foundation damages.

Ok, one more time..

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See CCP 405.4

A notice of pendency of action is available in actions involving "real property claims." A "real property claim" is the cause or causes of action in a pleading which would, if meritorious, affect: (1) title to, or the right to possession of, specific real property; or (2) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility. [Code Civ. Proc. §405.4]

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When you sue the neighbor, you have a cause of action, which would if you win (i.e. be "meritorious") affect the title to the property because you could have a judgment lien on the property.

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I mean, do what you want.. file a lis pendens, don't file one, file suit, don't file suit.... I am just telling you that based on 17 years practicing real estate law you can do it. But feel free to go with whatever someone else is telling you if you want to..

Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 39,094
Experience: 17 years real estate, Realtor. Landlord 26 years
Verified
Barrister and 87 other Real Estate Law Specialists are ready to help you
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Barrister
Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 39,094
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Experience: 17 years real estate, Realtor. Landlord 26 years

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