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We built our house on an empty lot in 2000 near the coast in…

We built our house...

We built our house on an empty lot in 2000 near the coast in California on a severely inclined plane from the street. Our neighbor in front of us built his house in 1952 before the California Coastal Commission or the City of Carlsbad instituted planning restrictions. At the back end of our property--our neighbor to the west had erected an adobe wall 4' high along the length of our common boundaries thus effectively forming a dam preventing the free flow of water toward the ocean. Between our home and another neighbor to our side there was empty space. For the sake of privacy, we agreed that we would build a wall at our expense with an opening--an enlarged "weep hole"--as an outlet to drain the water toward our common unimpeded lower elevations. Their house was later sold and the new neighbor has blocked the outlet with cylinder blocks. Do I have any rights to prevent the blockage that has exposed me to flooding?

Lawyer's Assistant: What steps have you taken so far? Have you prepared or filed any paperwork?

Not yet.

Lawyer's Assistant: Have you talked to a CA lawyer about this?

Not yet. First I want to know if I'm on solid legal ground. Second, is this a case for Small Claims Court?

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

No, I believe that's it.

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Answered in 16 minutes by:
3/25/2018
legalgems
legalgems, Arbitrator
Category: Real Estate Law
Satisfied Customers: 12,570
Experience: Just Answer consultant at Self employed
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Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

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Can you tell me when the obstruction with cinder blocks occurred?

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Who owns the property where the blocks were placed?

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Customer reply replied 1 month ago
Two to three weeks ago.
Customer reply replied 1 month ago
The overflow passage is blocked by several large cinder blocks.

Who owns the property where the blocks were placed?

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Customer reply replied 1 month ago
No, I feel more comfortable with written responses.

I believe you are referring to the autogenerated phone call request which I don't participate in;

can you please tell me who owns the property where the blocks were placed?

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I will do my best to provide information based on the supplied data.

So essentially if a neighbor places any object on another's land (ie cinder blocks) then that constitutes a trespass and the landowner may sue for damages and injunctive relief (basically an order that requires the other party to remove the trespassing objects). If the neighbor fails to comply the court may hold them in contempt for a knowing and willful violation of a court order which may include the award of legal fees and daily fines for non compliance. One moment please.

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Case law in CA indicates that a landowner bears the burden of receiving surface water that naturally flows from an adjacent property. A landowner may divert such surface water if done reasonably. So the court will look to see which owner acted reasonably before imposing liability (damages for economic harm to the property such as erosion) and before determining an injunction is appropriate.

This explains the theories that have been used in different states and how CA employs a reasonableness standard; please see:

https://www.waterboards.ca.gov/rwqcb2/water_issues/programs/stormwater/muni/nrdc/02%20chapter%2002%20drainage%20law.pdf

Per CCP 116.220 the small claims court has jurisdiction over cases less than $10,000 and may order injunctions/specific performance:

(b) In any action seeking relief authorized by paragraphs (1) to (4), inclusive, of subdivision (a), the court may grant equitable relief in the form of rescission, restitution, reformation, and specific performance, in lieu of, or in addition to, money damages. The court may issue a conditional judgment. The court shall retain jurisdiction until full payment and performance of any judgment or order.

http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=116.220. (CCP 116.220's dollar amount of $5,000 was modified pursuant to 116.221 to $10,000)

Further questions please post here otherwise kindly rate 5 stars if no further questions.

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Customer reply replied 1 month ago
The blockage is on his, i.e. the neighbor's side; he has closed an opening that has been operational for years. When we built our residence in 2000, our contractor purchased the house next to us because he saw the financial potential of the area. He proposed that it would be mutually beneficial to us if we would build a 6' wall between our properties for mutual privacy. It is our wall and it is on our property.At the lower base of the wall, there is an opening to allow rain water from the street (there are no sewers) to flow to the side--because of the adobe "dam." Recently that out let has been closed, obstructed, prevented by the placement of several concrete blocks placed on the new neighbor's action.

The court will assess the "reasonableness" of both parties action so that will depend on the court's interpretation if the drainage was reasonably established and whether the neighbor was reasonable in blocking the drainage.

Please see:

In Locklin v. City of Lafayette (1994) 7 Cal.4th 327 (Locklin), the California Supreme Court expanded the application of the Keys reasonableness standard to situations involving a natural watercourse. (Locklin, at p. 337.)[5] It began its discussion of the rule by acknowledging that "[t]he modern rule governing landowner liability for surface water runoff and drainage is no longer simply a rule of property law. . . . Today a landowner's conduct in using or altering the property in a manner which affects the discharge of surface waters onto adjacent property is subject to a test of reasonableness." (Id. at p. 351.) In reaching its decision, Locklin agreed with Ektelon v. City of San Diego, supra, 200 Cal.App.3d 804, Weaver v. Bishop, supra, 206 Cal.App.3d 1351, and other courts that had held the Keys rule "applicable to all conduct by landowners in their disposition of surface water runoff whether the waters are discharged onto the land of an adjoining owner or into a natural watercourse. . . ." (Locklin, 7 Cal.4th at pp. 354-355, 357.) The California Supreme Court also acknowledged its past recognition that the Keys rule of reasonableness had been applied by the courts to actions involving private landowners' treatment of flood and stream waters. (Id. at p. 354, fn. 16, citing Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d at pp. 567-568, fn. 8.)

relevant case here

A landowner may also argue a "prescriptive easement:
Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570-72; Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449-50.

The plaintiff must prove the use of another's land is (1) continuous and uninterrupted for five years; (2) open and notorious; and (3) hostile.

legalgems
legalgems, Arbitrator
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