Two Words Can Be Expensive

            You just never know.

These days, there are many, many loans that are not being repaid.  The large majority of foreclosures undoubtedly happen because a loan was not repaid.  But what happens when a loan is in fact repaid, but the lender claims it wasn’t?

The United States Supreme Court ruled on just such a case in Jerman v. Carlisle (2010) 130 S. Court 1605.  In the Jerman case, a lawyer (who was acting as a debt collector) filed a lawsuit against a borrower.  The lawyer sought to foreclose a mortgage from a lender.  The complaint that was filed and served on the borrower included a Notice to the borrower that the mortgage debt would be presumed valid unless the borrower disputed the debt “in writing.”

The borrower’s lawyer sent a letter to the debt collector lawyer challenging the debt.  The lender eventually confirmed that the debt had been paid in full, and the debt collector lawyer dismissed the lawsuit.

After the debt collector lawyer dismissed the lawsuit, the borrower filed her own lawsuit against the debt collector lawyer for violation of the Fair Debt Collection Practices Act (which is sometimes known as the “FDCPA”).  The FDCPA is a federal law that contains certain steps that debt collectors must follow when collecting a debt.  According to the FDCPA, a debt collector must send a borrower a statement that a debt will be presumed valid unless the borrower disputes the debt within 30 days.  However, the FDCPA does not provide that the borrower must dispute the debt “in writing.”  Instead, the FDCPA only provides that the debt will be presumed valid unless the borrower disputes the debt.  Apparently, the borrower can dispute a debt by a telephone call or some way other than “in writing.”

The borrower’s lawsuit claimed that the debt collector lawyer had violated the Fair Debt Collection Practices Act by requiring that the borrower dispute the debt in writing instead of just disputing the debt.  The debt collector lawyer claimed that this mistake was a good faith error and that the debt collector therefore shouldn’t be liable to the debtor for violating the FDCPA.

The Supreme Court disagreed, and held that the debt collector lawyer could in fact be liable for violating the FDCPA by requiring that the borrower dispute the debt “in writing,” when the FDCPA didn’t require the borrower to dispute the debt “in writing.”

In this case, the phrase “in writing” consisted of two very expensive words.  Cases don’t usually get filed in the Supreme Court.  Instead, they almost always get filed in a trial court, and they usually reach the Supreme Court only on appeal.  In this situation, the borrower filed her lawsuit in Federal District Court, which eventually held that the debt collector lawyer wasn’t liable because the error was made in good faith.  The Court of Appeals for the Sixth Circuit agreed, and held that the debt collector lawyer wasn’t liable.  However, on further appeal the United States Supreme Court reversed the Court of Appeals and found that the debt collector lawyer could be liable for requiring the debt to be disputed “in writing.”  And that’s not the end of the story.  The Supreme Court didn’t render a final judgment in its opinion but instead sent it back to the lower court for further proceedings.

The FDCPA allows a court to award actual damages to a borrower. Where a violation is made through a good faith error, the FDCPA allows a court to also award a borrower up to one thousand dollars in additional damages.  In class actions, this additional damage award can be $500,000 or 1% of the worth of the debt collector, whichever is less.  But a debt collector can also be liable for a borrower’s attorneys fees,  which in this case could be very, very expensive.  (Where a lender violates the FDCPA with actual knowledge, the lender can incur civil penalties of up to $16,000 per day.)

Those two additional words “in writing” proved to be a very costly error for the debt collector.  But that is sometimes the nature of the law.  Words which are imprudently, or improperly, or unlawfully spoken or written can sometimes result in a big problem, and a costly situation.

Document Notarization is Important

            There has been a lot of buzz about certain shortcuts that may have been taken with respect to foreclosures of some homes.  Most states have a protocol, or procedure, that is supposed to be followed when real property is sold at foreclosure sale.  Sometimes these procedures require that certain documents be signed or recorded.  When these documents aren’t prepared and signed like they should be, then there can be a temptation to take shortcuts.  Some borrowers have claimed that shortcuts were made with respect to their foreclosure documentation, and such claims are a source of much of the “buzz” about foreclosure procedures.

There is a constant need for veracity, or authenticity, of written documents.  It’s actually a remarkable process.  By using a series of papers and signatures, some borrowers can get a million dollars or more from a lender for the purpose of buying real property.  Even though there can be a trend towards going “paperless” in some situations, there’s still a lot of our commercial law that is founded on paper.  And the system has been in place for a long time.  Whether it’s a contract, a deed, a mortgage, or a written loan agreement, there’s a lot of money that changes hands every day based on papers that have printed terms and signatures.

Unfortunately, the temptation for taking shortcuts can be very real.  And sometimes even a downright fraud can look appealing.  Though fraud is usually criminal, sometimes the potential rewards can look very appealing, and a person’s internal moral compass may be sufficiently dim that the prospect of “fast cash” may win out.  When this happens, victims can be disappointed or financially injured, and when the true facts come to light, the person who hoped to make a lot of “fast cash” can find themself in a whole lot of trouble.

The concept of a “Notary” has been around for a long time. “The notary public, or notary, is an official known in nearly all civilized countries.  The office is of ancient origin.  In Rome, during the republic, it existed . . . and there are records of the appointment of notaries by the Frankish kings and the Popes as early as the ninth century.  They were chiefly employed in drawing up legal documents; as scribes or scriveners they took minutes and made short drafts of writings, either of a public or a private nature.  In modern times their more characteristic duty is to attest the genuineness of any deeds or writings, in order to render the same available as evidence of the facts therein contained.”  Benjamin F. Rex, The Notaries’ Manual section 1, at 1-2 (J.H. McMillan ed. 6th ed. 1913).

In other words, a modern notary will generally confirm, or witness, the authenticity of a signature.  Many documents must be “notarized” before they can be recorded in the recorder’s office.  For example, a deed that conveys ownership to real estate must be notarized, or it cannot be recorded.  Likewise, a Deed of Trust must be notarized before it can be recorded.  The notary takes evidence that the person signing the document is actually the person whose name appears on the document.  This process provides an added layer of security that the signature on such document is genuine.  However, the system is not foolproof.  Notaries have been known to notarize documents after they were signed and without seeing evidence of the identity of the person who signed the document.  Therefore, even when documents have been notarized, there is still a need for prudence, for care, and for good common sense.  But when the system is working properly, the notarization on a document can be a good indicator that the signature is authentic.

Authentication of documents can involve complex factual and legal issues.  Persons with questions concerning authenticity of documents should consult competent legal counsel.

Due Care Appropriate in Property Transactions

            Caveat Emptor – it’s a Latin phrase meaning “Let the Buyer Beware.”

Commercial transactions have been around since the beginning of time.  Whether it’s for barter or for cash, people have been trading, buying and selling ever since we’ve been around.

The concept of being cautious in a transaction isn’t new.  Our current phrase of Caveat Emptor is an ancient legal principle.  But whether the phrase comes from Italy, England, or someplace else, the concept is the same.  In any transaction, a buyer takes a risk when they buy a product, including real estate.

Modern American law has considerably limited the application of Caveat Emptor in real estate transactions.  California law imposes significant disclosure obligations on sellers and their brokers.  But there can still be situations where Caveat Emptor still applies, and where a buyer should beware.

Several years ago, a mother purchased a home.  After purchasing the home, this mother noticed a moldy odor in the kitchen and bathroom. An environmental test showed dangerous levels of and mold spores. The exposure to the molds caused the mother to become ill, and caused her minor son to develop asthma.

The son filed suit against the real estate broker who had sold the house. The son claimed that the broker knew that the son would be living in the house with his mother.  The son further claimed that the broker had a duty to conduct a reasonably competent and diligent inspection of the property and to disclose defects to the son, including the presence of dangerous molds and microbes.

The broker defended the claim by claiming that the broker owed a duty only to the parties to the transaction.  Since the son neither bought nor sold the property, the son was not a party to the transaction, and the broker therefore claimed that the son had no legal claim against the broker for any failure to inspect or disclose.

The Court of Appeal agreed with the broker.  The Court held that a broker’s duties and liabilities are limited, and that in this case the broker had no duty to the son to either inspect the property or disclose any defects or dangerous conditions.  Because the broker had no duty to the son, the broker had no liability to the son for the presence of the mold or to any injury that the son may have incurred due to the presence of the mold spores.  This case is reported 117 Cal. App. 4th 158.

The result in this case may have been different if the mother had filed suit for personal injuries due to undisclosed defects or dangerous conditions.  Real estate brokers who sell property are obligated to perform inspections and make certain disclosures to the parties to a transaction.  As a result, the broker in this case may have been obligated to disclose the presence of mold to the mother who was the purchaser.  But in this case, the Court of Appeal held that the broker owed no duty of inspection or disclosure to the son with respect to the dangerous mold at the property.

Most buyers seem to realize that they have the right to have inspections performed in a real estate transaction.  But some buyers may not realize that a broker’s duties of inspection and disclosure may not extend to a buyer’s children in some cases.  Inspections take time and they cost money.  Buyers who buy properties are already spending so much money that they sometimes seem to want to save costs by skimping on inspections.  But if they knew that their children may face additional risks due to possibly limited broker obligations, then such buyers may be more willing to pay for and obtain such inspections. Buyers of real property may reduce their risk when they have their potential purchases fully inspected by licensed, experienced, qualified inspectors who are adequately insured.

In reaching its decision, the Court in this case analyzed and relied on complex principles of duty, negligence, and both case and statutory law. The case does not discuss whether or not the minor son may have had valid claims against persons other than the listing broker.  The Court’s decision in this case is no indicator of how a court may rule in any given situation.  Persons with potential legal claims should always consult professional, experienced, competent legal counsel when evaluating their claims or determining whether or not such claims have legal merit or validity.

Reasonable Care is Important

            The law generally requires that persons use reasonable care to avoid injuring other persons.  The law also generally requires property owners to use reasonable care in maintaining their properties so as to avoid injuring other persons.

In many situations, it’s entirely foreseeable that people will walk onto land belonging to someone else.  And in some situations, landowners specifically invite people to walk over their land.  For example, some owners or tenants of commercial properties pay great sums of advertising money for the purpose of specifically inviting people to come onto their land.  This happens every time a potential customer responds to an advertisement and makes a trip to the store.  We’ve all become so used to going to the store that we often don’t even think of the store as being on land belonging to someone else.  But it’s true.  Without an invitation to enter onto private land, and without such land being made generally accessible to the public, we could all be liable for trespass. But it’s the very act of going onto the land of another than makes most retail sales possible. (Granted – retail purchases through the internet and mail order are exceptions.)

When property owners invite people onto their land, special problems can arise. For example, special duties of care can arise between landowners and their guests, customers, or “invitees.”  Customers can be injured on store premises, and when that happens, a lawsuit can result.  If a landowner, or a store operator, doesn’t use reasonable care, then such landowner and/or store operator may be liable for a customer’s injuries.

The types of injuries that can happen to customers are too numerous to list.  But some are fairly unusual.  For example, one of the more unusual examples I’ve seen is the “Goose” case, which occurred in 2006 in Indiana.

According to Court records, a grandmother and her granddaughter were enjoying a shopping trip to the mall.  The mall had outdoor sidewalks that provided access to many of the store entrances.  As this grandmother and granddaughter were approaching a store entrance on one of these outdoor sidewalks, a Canadian goose attacked the grandmother.  The Court opinion described the grandmother’s plight as follows: “The goose landed on her head, forcing her into a brick wall and then onto the sidewalk.  The attack continued until passersby assisted.”  The case is reported at (2006) 98 N.E. 2d 579.

You just never know what’s going to happen on a shopping trip.  This was a bad day for grandma.

The Court opinion does not specify the kinds of  injuries received by the grandmother.  But she apparently received some kind of injuries because she filed suit against the owner of the mall and also against the store she was heading to.  The mall owner objected to grandma’s claims because the mall owner claimed to have no ownership of the sidewalk and no obligation to maintain it.  After reviewing the relevant facts, the court agreed and dismissed the grandmother’s case against the mall owner.  The court didn’t specifically discuss the liability of the store owner, but the Court did find that the store owner owned the sidewalk and was responsible for maintaining it.  Based on the facts stated by the Court, it appears that the store owner could be liable to the grandmother for her injuries if the Court determined that the store owner did not use appropriate care in maintaining its sidewalk.

Liability issues involving property owners can be tricky.  Persons with questions regarding liability of store owners or landowners do well to seek professional legal counsel.

Adequate Inspections Can Be Critical

            Real Estate brokers who sell property have a duty to “conduct a reasonably competent and diligent visual inspection” of such property and to disclose all facts “materially affecting the value and desirability of the property.”  But a very unfortunate case shows that this duty to inspect is not necessarily extended to every person who may be injured or damaged due to defects in real property.

Several years ago, a buyer purchased a beachfront residence in southern California.  The property had a balcony supported by steel beams.  After purchasing the residence, the buyer hosted a large party at his new residence.  During the course of the party, the balcony’s steel beams failed, and the balcony fell.  At least 36 people were injured or killed.

A lawsuit was filed by 36 plaintiffs against the real estate brokers who had sold the residence.  The plaintiffs claimed that a structural engineer had told the selling brokers that there were defects with the steel beams that supported the balcony.  As a result, the plaintiffs claimed that the brokers were liable to the injured plaintiffs for their losses and injuries.

The trial court initially held that the Plaintiffs may have a valid claim against the brokers.  But on appeal, the Court of Appeal ruled that the brokers were not liable to any of the 36 plaintiffs or their heirs.  None of the Plaintiffs were buyers or sellers of the beachfront property.  The Court of Appeal ruled that the brokers’ inspection and advisement duties did not extend to the Plaintiffs because the Plaintiffs were not involved in the purchase of the property.  The Court of Appeal therefore held that because there was no duty, then there was no claim by the Plaintiffs against the brokers who sold the residence. This case is reported as FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal. App. 4th 69.

If the owner of the residence had been injured, then the result may have been different such that the owner may have had a valid claim for his injuries.  But because the invited guests were not involved in the real estate transaction, none of them had a valid claim against the selling brokers in this case.

Real estate brokers have a duty to visually inspect real property for conditions that materially affect the value or desirability of a property.  But the broker’s obligations to perform such inspection may not extend to all persons who may be affected by a defect in the property. When buying a property, Buyers can sometimes be concerned about inspection fees, but the risks of defective construction or conditions can be so great that the small cost savings of avoiding inspection can often be far offset by the amount of loss or damage if there should be a problem with property defects.  Buyers of real property may reduce their risk when they have their potential purchases fully inspected by licensed, experienced, qualified inspectors who are adequately insured.

In reaching its decision, the Court in this case analyzed and relied on complex principles of duty, negligence, and both case and statutory law. The court’s opinion did not discuss whether persons other than the selling brokers might potentially be liable to the Plaintiffs for their injuries. The Court’s decision in this case is no indicator of how a court may rule in any given situation.  Persons with potential legal claims should always consult professional, experienced, competent legal counsel when evaluating their claims or determining whether or not such claims have legal merit or validity.

Trees Can be a Nuisance

            It seems like most neighbors get along with each other.  Sometimes disagreements, misunderstandings, tensions can arise over a variety of things such as barking dogs, stray cats, size of landscaping, trees that drop leaves onto a neighbor’s property, parking in front of a neighbor’s home or on a neighbor’s land, unusually late or excessively loud noise or music, vibration, numbers and types and frequency of visitors, and all kinds of other things.  But for the most part, it seems like neighbors are generally able to accommodate each others’ needs and property uses and one way or another it seems like things generally get worked out.

However, exceptions exist. Sometimes emotions are strong, or a use is unreasonable, or sometimes one neighbor’s property use is so significant or unusual that it materially interferes with their neighbors “quiet use and enjoyment” of their own property.  When such problems can’t be quietly or informally resolved, then homeowners and property owners often resort to other steps.  Homeowners have even been known to move to a new property when problems can’t be informally resolved.  When neither of the owners is willing to or interested in moving, then sometimes litigation can result.

California law recognizes that many different kinds of dispute can arise between neighbors over the use of real property.  When the use of a property constitutes an unwarranted nuisance that interferes with quiet use and enjoyment of property, then a neighbor may have a valid, legal cause of action against their neighbor due to such nuisance.  This type of claim or action is commonly known as one for “private nuisance.”  In such a situation, the nuisance generally isn’t one the affects the community at large.  Instead, it usually concerns some very specific individuals or neighbors.  California law recognizes that property owners usually hold valid, legal rights to the “quiet use and enjoyment” of their property.  One of the purposes of the law is to provide persons with a way to preserve, protect and enforce their property rights when such rights are being violated.  Therefore, in appropriate circumstances, a property own can have a valid claim for “nuisance” against a neighbor, and if the owner can properly prove his case, then a court may order that the nuisance be stopped or “abated.”

The principles of “nuisance” and “abatement” are illustrated in several California legal cases. In one interesting case, a couple purchased a hillside property that overlooked the ocean.  When they purchased their property, this couple noticed that there were several eucalyptus trees on the property of the neighbor that was located downslope from them.  These eucalyptus trees were generally located on the border between the two properties, and these trees were generally nine to twelve feet high, and it looked like they had recently been trimmed.

About a year after they bought their place, these homeowners contacted their downhill neighbors about trimming the eucalyptus trees.  The downhill owner agreed to have the trees trimmed, but not so much that she would be able to see the uphill owners’ house.  The trees were trimmed to a height of 14 feet.

About a year later, the uphill owners contacted the downhill owners about trimming, and the trees were trimmed again as before.

In 2004, the uphill owner again asked the downhill owner to have the trees trimmed, but this time the downhill owner said she would only allow a few trees in the far corner of her lot to be trimmed down two or three feet.  This was very different than what had happened before.

An argument ensued, and the police were called. About a month later, the downhill owners planted approximately 20 pine trees and 65 Italian Cypress trees.  After three years, these trees had grown to perhaps four or five times the height of the original eucalyptus trees, and they had grown to the point where the uphill owners view was at least partially blocked.   The new trees were also dropping leaves and debris onto the uphill owners’ lot, which was staining their concrete and clogging their pool filter.

The uphill owners filed suit and asked the court to order the downhill neighbors to remove or at least trim back their trees. The case is reported as Vanderpol v. Starr (2011) 194 Cal. App. 4th 385.

A Row of Trees can be a Nuisance

            “Every body does not see alike . . . . The tree which moves some to tears of joy is in the Eyes of others only a Green thing that stands in the way.” (Blake, The Complete Writings of William Blake (1957) p. 793.)

This quote is the opening sentence in a California legal case known as Handley v. Wilson (2002) 97 Cal. App. 4th 1301.  By quoting William Blake, the Court of Appeal introduced an appellate opinion concerning a legal principle concerning something known as a  “spite fence.”

It seems that a property owner in Northern California began building a two-story log cabin on her property.  In response, a neighboring property owner planted a row of evergreen trees near the property line.  The owner of the log cabin became concerned that the newly planted trees would eventually block her view of Mount Shasta.  As a result, the owner of the log cabin filed a lawsuit in which she asked that the trees be removed.

A request made to a court that a property owner be ordered to remove trees planted on their own property is a significant thing.  Such a request asks a Court to order that a property owner change their use of their property solely because a neighbor doesn’t like it.  California law generally recognizes and upholds established property rights.  But this is something unusual, because in this case one neighbor was asking a court to order another neighbor to change something on their property that otherwise appeared to be a proper legal use of their own property.  The trees that were planted included spruce and Leland cypress trees, which are specifically designed to serve as screening barriers and windbreaks.  Some of the trees were planted within five feet of the property line, and some were within ten feet of the property line, but most of them were more than ten feet from the property line.  The court didn’t say how many trees were planted, but it’s clear from the court’s opinion that there were more than seventeen of them.

The legal point at issue in the appeal was whether or not a row of trees can constitute a “spite fence.”  This may not be widely know, but California law includes a statute that is commonly known as the “spite fence” statute.  It is codified at Civil Code section 841.4.  That section provides “Any fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance.”  The law further provides that if such a “nuisance” causes injury to the comfort or enjoyment of property, then in an appropriate case it may be stopped, or “abated.”

This is a significant legal point because it provides that in certain circumstances, one neighbor can bring a lawsuit to require another neighbor to discontinue using their own property for a use that may otherwise appear to be completely legal and proper.  If one neighbor builds either a “fence” or a “structure” on their own property that is “unnecessarily” over 10 feet high, and if the purpose of that fence or “structure” is to annoy a neighbor, then such a fence or structure may, in appropriate circumstances, be deemed to be a “spite fence” and the owner of it may be required to remove it or reduce its height.

An actual determination as to whether or not a fence, structure, row of trees or other barrier may constitute a “spite fence” involves legal analysis, and this series of articles is not an appropriate basis for making any decisions regarding nuisance or “spite fence” issues. In addition, certain building codes or ordinances may control the allowable height of certain structures, but those considerations are not included in this series of articles. Persons with specific situations that may involve a “spite fence” or other nuisance should consult competent legal counsel.

Trees as a Nuisance

California Civil Code section 841.4 concerns “spite fences.”  The statute provides, in part, that if a “fence” or other “structure” is unnecessarily over 10 feet high, then if the purpose of building or maintaining that “fence” or other “structure” is to annoy a neighbor, then a court may order that the “fence” or “structure” be removed, taken down, or lowered, or may order other appropriate relief.

In one case filed in Northern California, a property owner built a two-story log cabin on their property, and a neighboring property owner planted over 17 trees in a row that would eventually block the cabin owner’s view of Mount Shasta. The case is reported as Wilson v. Handley (2002) 97 Cal. App. 4th 1301.  The cabin owner filed a suit which claimed that the row of trees constituted a “spite fence.” This week’s article continues the discussion of the court’s opinion about whether or not a row of planted trees can constitute a “spite fence.”

In this legal case, the court noted that in an appropriate situation the owner of a “spite fence” could be required to remove or lower a “spite fence.”  A “spite fence” is a “fence” or other structure “in the nature of a fence” which is “unnecessarily” over 10 feet high and which was built or maintained for the purpose of annoying a neighbor.  The tree owner in this case argued that the statute didn’t apply because a tree is not a “fence” or another “structure” that is in the “nature” of a “fence.”

The court specifically addressed the argument about whether or not a “tree” can be a “structure” by referring to the famous poem “Trees” by the American poet Alfred Joyce Kilmer which states that only God can make a tree.  But after referring to this poem and noting that only God can construct a tree, the court notes that “any enterprising individual with a shovel and some saplings can construct a row of trees.”   The court concludes that a “row” of trees can be a structure, because according to Webster’s Collegiate Dictionary, a “structure” is “something arranged in a definite pattern of organization.”  The court observed that a “row of trees” could be a “structure” in the “nature of a fence” because according to Webster’s Collegiate Dictionary, a “fence” can consist of a “barrier intended . . . to mark a boundary.”  Even though the trees in this case were not planted directly on the property boundary line, the Court viewed a “row of trees” as something that is can be in the “nature” of a fence.

The Court reviewed the development of “spite fence” statutes in the United States.  The United States originally “borrowed” much of its real estate law from the law of England.  The Court noted that English law include the doctrine of “Ancient Lights” under which an English landowner could acquire an easement over neighboring property for the passage of light and air. However, such a doctrine didn’t fit well with the development of America, which was rapidly growing.  In its expansion period, America was interested in encouraging unrestricted land development.  Also, a landowner’s rights to use his land were virtually unlimited.  A landowner was considered to own his land to the “center of the earth and up to the heavens.”  Light had little social importance, and so American law generally rejected the English doctrine of “Ancient Lights” with the result that in contrast with their English counterparts, American landowners were not subject to this doctrine.

Next week’s article will discuss further issues between neighbors about the use of land.  Modern land use law incorporates many legal principles in addition to nuisance principles, and landowners or prospective landowners with any land use issues should consult competent legal counsel. Further, this series of articles is not a complete treatment of nuisance law and should not be relied on in any given situation.  In addition, certain building codes or ordinances may control the allowable height of certain structures, but those considerations are not included in this series of articles. Landowners or prospective landowners with potential nuisance issues should consult competent legal counsel.

Fences and Trees Can be Annoying

            California Civil Code section 841.4 concerns “spite fences.”  The statute provides, in part, that if a “fence” or other “structure” is unnecessarily over 10 feet high, then if the purpose of building or maintaining that “fence” or other “structure” is to annoy a neighbor, then a court may order that the “fence” or “structure” be removed, taken down, or lowered, or may order other appropriate relief.

In one case filed in Northern California a property owner built a two-story log cabin on their property, and a neighboring property owner planted over 17 trees in a row that would eventually block the cabin owner’s view of Mount Shasta. The case is reported as Wilson v. Handley (2002) 97 Cal. App. 4th 1301.  The cabin owner filed a suit which claimed that the row of trees constituted a “spite fence.” This article discusses the court’s opinion about whether or not a row of planted trees can constitute a “spite fence.”

In this legal case, the court noted that in an appropriate situation the owner of a “spite fence” could be required to remove or lower a “spite fence.”  A “spite fence” is a “fence” or other structure “in the nature of a fence” which is “unnecessarily” over 10 feet high and which was built or maintained for the purpose of annoying a neighbor.  The tree owner in this case argued that the statute didn’t apply because a tree is not a “fence” or another “structure” that is in the “nature” of a “fence.”

Under American law, it was said in a legal case decided in 1889 that “a man has a right to build a fence on his own land as high as he pleases, however much it may obstruct his neighbor’s light and air.”  Pursuant to this principle, Charles Crocker sought to purchase an entire block on San Francisco’s Nob Hill in the 1870’s on which to build a mansion. (Charles Crocker was a California railroad executive who played a key role, along with Mark Hopkins and others, in the development of the railroad in California and the western United States.) As noted by the Court, a local undertaker named Yung refused to sell his small lot on Nob Hill to Crocker, so Crocker bought the remainder of the block and built a fence 40 feet high on his property around Yung’s lot.  Yung thereafter sold his property and Crocker obtained the entire city block of land.

The Court noted that in the 1880’s, courts and legislatures began holding that excessively high fences which were built to annoy or spite a neighbor could be considered a private nuisance and could be “abated” (which meant that the Court could order the landowner to stop, or discontinue, these nuisances).  The Court ultimately concluded that if a fence, structure, or “row of trees” is unnecessarily over 10 feet high, and if the dominant purpose of such fence, structure, or trees is to annoy or spite a neighbor, then in an appropriate situation a court can order the fence, structure or trees to be modified or the “nuisance” to be  “abated.”

Following the decision in the case of Wilson v. Handley in 2002, a different California court also decided that a row of trees can constitute a “spite fence.”  However, this second court also noted that in order to be “abated,” a “spite fence” or a “row of trees” must also have injured the neighbor in his “comfort or the enjoyment” of his property.  This case is cited as  Vanderpol v. Starr (2011) 194 Cal. App. 4th 385.

An actual determination as to whether or not a fence, structure, row of trees or other barrier may constitute a “spite fence” involves analysis of legal considerations, and persons with specific situations that may involve a “spite fence” should consult competent legal counsel. Modern land use law incorporates many legal principles in addition to nuisance principles, and landowners or prospective landowners with any land use issues should consult competent legal counsel. Further, this series of articles is not a complete treatment of nuisance law and should not be relied on in any given situation. Landowners or prospective landowners with potential nuisance issues should consult competent legal counsel.

Questions About Minerals

            Most homeowners don’t spend much time looking at the deed to their home.  They might have seen it when they bought their home – and then it probably got filed away somewhere in a dark attic space, or an unused closet somewhere.  When the home is sold, such homeowners sign a new deed to the buyer, and that might be the only time these homeowners ever look at any deed – when the home is bought and later when it’s sold.

But if they had closely looked at their deed, then some of these homeowners might have found that the legal description excludes all or some of the “mineral rights” associated with the property.  It’s possible to sell the “mineral rights” separately from the surface rights.  This means there can be two (or more) different owners of the same property.  One owner might own the surface rights, and an entirely different person might own the subsurface mineral rights on the property.

At first glance, it doesn’t seem like there should be much difficulty in defining what is meant by “minerals.”  It seems clear that such things as gold or silver would be included in the definition of “minerals.”  Iron ore, precious metals, and precious gems such as diamonds all seem to fit comfortably within the meaning of “minerals.” But what about something like gravel? Is “gravel” a  mineral? The answer to that question is not immediately clear.  But whether or not gravel or similar materials is a “mineral” can make a real difference, in dollars and cents, in the right kind of situation.

When we think of extracting or digging for  “minerals,” we usually think of such “minerals” as coming from a “mine.” The word “mineral” actually means that which is taken from a “mine.”  When we think of a “mine,” we usually think of a mine-shaft, or a tunnel, which is bored into the earth in order to get to the “minerals.”  But a mine can actually exist where there is no mine-shaft or mine-tunnel. For example, Utah has an enormous “open pit” copper mine at Bingham Canyon near Salt Lake City, Utah.  An impressive photo of the mine can be seen on Wikipedia at    The operations there have been referred to as an “open pit mine” for many, many years.  So it’s clear that a mine doesn’t have to consist of shafts and tunnels.

So just what makes up a “Mine,” and exactly what are “Minerals?”  As far as California goes, it might seem like these questions would only have been important to the California gold-rush miners who were busy digging up gold and staking claims.  But a recent California law case was decided on the definition of “minerals.”