Utah Property Law- What to Do About Annoying Neighbors

IMG_4011Do you have a neighbor whose conduct is reducing or barring you from enjoying your own property? A nuisance claim may be the answer to your problem.

Nuisance law is alive and well in Utah and modern courts. The problem, however, is its relative complexity.

“There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.’ ” W. Page Keeton et al., Prosser and Keeton on the Law of Torts (Prosser on Torts ) § 86, at 616 (5th ed.1984).

There are two kinds of nuisance, public (see Utah Code Ann. § 76–10–803) and private (see Utah Code Ann. § 78B-6-1101). Bear with me for a moment while I give you the gist of these claims. I am not trying to provide a treatise on nuisance but to give you enough information to determine whether you should look into it further if you believe it applies to your circumstances. Once you see the elements of the claims, I will show you the claims in action.

Public Nuisance

“A public nuisance is a crime against the order and economy of the state….” Utah Code Ann. § 76–10–803. Here are the four elements to prove a public nuisance:

  1. “Unlawfully doing any act or omitting to perform any duty,”
  2. The “act or omission … in any way render[ed] three or more persons insecure in life or the use of property,”
  3. You “suffered damages different from those of society at large,”
  4. Your neighbor caused or is responsible for the nuisance complained of; and
  5. Your neighbor’s conduct was unreasonable.

Note: ‘your neighbor’ could be a person, business, or government entity.

Private Nuisance

“The essence of a private nuisance is an interference with [an individual’s] use and enjoyment of land.” W. Page Keeton et al., Prosser on Torts § 87, at 619 (5th ed.1984). (On a side-note, if you are at all interested in wrongs or torts, find a copy of Prosser on Torts. It’s the bible of torts). Here are your three elements to prove a private nuisance claim:

  1. A substantial invasion in the private use and enjoyment of land
  2. caused by your neighbor or for which your neighbor is responsible, and
  3. the invasion is either (a) intentional and unreasonable, or (b) unintentional and otherwise actionable.”

Simply, a private nuisance focuses on whether you have suffered an ‘unreasonable injury.’ Meaning, is your injury of the kind that a person would not be reasonably expected to endure (making it ‘otherwise actionable’)?

Nuisance Applied

A few early cases provide great examples of how nuisance can be used to curtail problematic neighbors:

Right to clean air: Walter v. Selfe (1851), 29 L.J.R. (20 N.S.) 433 (Ch.) Selfe manufactured bricks on his property in the English countryside. His neighbor, sued to stop the brick manufacture and objected to the smoke, vapor, and “floating substances.”

The judge found that the brick burning was a legal nuisance. He enjoined further brick burning, finding that the neighbor was entitled to “unpolluted and untainted air” which he described as “air not rendered to an important degree less compatible, or at least not rendered incompatible, with the physical comfort of human existence – a phrase to be understood of course with reference to the climate and habits of England.”

Inappropriate residential use: William Drysdale v. C.A. Dugas (1896), 26 S.C.R. 20: In Montreal, Drysdale constructed a livery stable 25 feet away from Dugas’s home. Of course, the stable stank and its 30 noisy horses disturbed Dugas. Dugas’s nuisance action prevailed and proved damages for discomfort and reductions in tenant rents.

Trees may or may not be a nuisance: Cannon v. Neuberger, 268 P.2d 425, 427 (Utah 1954). Cannon sued Neuberger, his neighbor, to require him to remove trees to “control their growth as to keep their branches from overspreading, or the roots from permeating, or the leaves, twigs and branches from falling or being blown upon his lot…” Neuberger was ordered to cut 20 feet off the top and remove dead wood from his trees to reduce the risk of wind-blown and broken branches. Cannon wanted more and the Utah Supreme Court denied further relief stating:

To hold trees to be nuisances . . . merely because leaves or twigs or even branches in the ordinary course of affairs may be blown from them onto neighbors’ lots, would be to condemn to abolition all shade trees in communities sufficiently settled to have perils of such experiences. Cannon.

So, trees are a question mark. They are desirable and somewhat protected but also must be reasonably controlled.

Appropriate use of property: Hatch v. W.S. Hatch Co., 283 P.2d 217 (Utah 1955). Hatch sued his brother and neighbor W.S. Hatch for using his property as base of operations for his road-building business, vehicle garage, and maintenance facility. This was held not a nuisance because the ‘neighborhood’ was more like an industrial park that included: the main line of the Union Pacific Railroad (42 trains passing 195 feet from Hatch’s house every 24 hours) with flashing lights and signals; a petroleum plant, refinery, and a catalyst cracker; two racks for loading tank trucks with oils; and two other semi-truck service garages. Not a nuisance because his use fit the neighborhood- even though it was loud, dirty, and obnoxious.

A nuisance claim may be your friend if your neighbor is making your life difficult. Take a look at the elements of a nuisance claim and the examples above. Nuisance claims can require a complex bit of legal wrangling. I do not recommend attempting it on your own. If you have questions, you should ask them- contact me, Utah attorney Ken Reich. I regularly represent companies and the individuals and families that own them. My job is to know and understand my clients and their goals. Together with the right legal experts, I can help you get the result you want.

Utah Property Rights: Tips for Claiming Adverse Possession

20150501_143806What is adverse possession you ask? Good question. It’s when a possessor of land claims ownership of land when title is held in the name of someone else. It can make a claimant into the legit title owner of real property. It applies to raw land as well as the all structures on the land. The laws governing adverse possession are found at Sections 78B-2-208 to -219 of the Utah Code.

Let me give an example: You and your neighbor own adjacent real property. Over the generations that your family has owned the land, you and your family have believed and acted like you owned a bigger tract of land than what your record title shows. It happens all the time. You have used the land for grazing, maintained fences, used portions for hunting pheasants, posted ‘no trespassing’ signs, and let your friends ride dirt bikes on parts of it. You also have paid taxes on the entire portion that you used. One day your neighbor dies and his heirs have a survey done that shows that you have been trespassing on a substantial portion of the neighbors land all these years. The neighbor politely asks you to stop using the land and starts moving fences. You politely tell him you own it by adverse possession and commence a quiet title action to get the title changed into your name.

Here’s what you need to prove adverse possession in Utah:

  1. Show that your use of property is actual use. This means it cannot be ‘in theory’ but requires you to do something. In the example, this would be actually grazing your animals or giving permission for someone else to do it. People get in trouble when they get cute and try to claim they ‘intended’ to develop the land or had plans. Intentions or plans are not actual use, even if you spend money on your plans. Adverse possession is all about putting land to good use.
  2. Show that your use was open and notorious. This means you do it in such a way that someone looking at the property would know that you are using it. Fence the land. Build something. Enforce rights against others (keep them out or let someone in to use the land). If asked, tell others that its yours and you claim ownership.
  3. Show that your use was exclusive. You must act like an owner and not share your use with others or the record owner. Do what an owner would do.
  4. Show that your use was hostile. Do not let anyone, especially the record owner, exert control over the land you claim as owner. If you do, then you are not acting like a true owner but are acquiescing to others as an acceptance that you do not own the property.
  5. Your use must use the land continuously for seven consecutive years.
  6. You must pay all taxes levied on the property for the seven years.

See Allred v. Allred, 2008 UT 22, ¶17. I was extensively involved in the Allred case with my partner Mike Carlston. It was a hard-fought family dispute. In Allred, a son (an attorney) obtained legal title to his parents’ commercial property by disputed means. Over the course of many years, the parents continued to act like they still owned the property (because they believed they did) by collecting all rents, paying taxes (triple net lease), and signing new leases and amendments. When the son tried to take over the property, the parents were able to successfully have title returned to them via adverse possession.

Here are some other things to consider in adverse possession claims:

  • If it is open, unimproved land, a few other rules apply:
    • If you claim title based on a written document that unfortunately fails to give you title, then you must do one of the following three things:
      • (1) cultivate crops or install an improvement,
      • (2) enclose the claimed property with a fence; or
      • (3) use the property for agricultural uses, pasture, or to harvest fuel or fencing timber.

Any one of the these activities may constitute possession and you may acquire entire parcels described in the written claim even if only a portion is actually used or cultivated.  See § 78B-2-211.

  • If the claim is not based on a written document, but on some other claim to title, then possession is established by performing all of the following:
    • (1) a substantial enclosure;
    • (2) cultivation or other improvement; and
    • (3) at least $5/acre expended on irrigation improvements.

All three criteria must be satisfied, and only the land actually occupied may be acquired through adverse possession.  See §§ 78B-2-212 and 78B-2-213.

  • If you fulfill each element for adverse possession, you still only have a claim. In order to turn your claim into title, you must either obtain an agreement with the record owner or bring legal action (quiet title, trespass, eviction, etc.). Once successful, you then take your judge’s order and have it recorded with the county in which the property is located.
  • You cannot adversely possess any land owned or held by a government entity and designated for public use or lands owned or controlled by the state or federal government.  See § 78B-2-216.
  • Water rights may not be acquired by adverse possession unless the seven-year possession period was completed prior to 1939. See Otter Creek Reservoir Co. v. New Escalante Irrigation Co.
  • Do not ever accept ‘permission’ from the record title owner. If you claim to own the property, you must act independent of everyone, especially the record title owner. Permission, if accepted, breaks your hostile possession.

Adverse possession can require a complex bit of legal wrangling. I do not recommend attempting it on your own. If you have questions, you should ask them. If you would like more information about adverse possession, contact me, Utah attorney Ken Reich. I regularly represent companies and the individuals and families that own them. My job is to know and understand my clients and their goals. Together with the right legal experts, I can help you get the result you want.

 

 

You Want to Appraise Real Property in Utah? Here Are Some Pointers

faceThe Utah courts of appeal recently are breaking out the creative stick. Here’s the most recent literary opening gambit: “The best-laid schemes o’ mice an’ men gang aft agley an lea’s us nought but grief an’ pain for promis’d joy.” Robert Burns, Tae a Moose, in The Best Laid Schemes: Selected Poetry & Prose of Robert Burns 48 (Robert Crawford & Christopher MacLachlan eds., 2009). The court used Burns to gild a rather dull decision, AmericanWest Bank v. Kellin, that gives us a few pointers about appraising, foreclosure valuation, and litigating in Utah.

Kellin and her partner bought two fancy Deer Valley condos for more than a million dollars each with plans to sell one-eighth shares in each. They sold one share of the sixteen. The real property market promptly collapsed. Hence, the “best laid plans of mice and men” quip. In an action to recover the difference between the bank’s loans and the now depressed value, the court provided these nuggets:

  • If you want to establish how much you are owed after foreclosing on real property, you, the lender, have the burden to establish 1) the amount you are owed and  2) the fair market value of the property at the time of the foreclosure. The difference is the ‘deficiency judgment’ you get from the debtor.
  • Your appraiser had better comply with the Uniform Standards of Professional Appraisal Practice (USPAP) standards. Utah has adopted the standards by statute. See Utah Code Ann. § 61-2g-403(1).
  • An appraisal in Utah cannot value “the whole [of a property] solely by adding together the individual values of its various estates or component parts.” (quoting USPAP Standards Rule 1-4(e) (2014–2015 ed.), http://www.uspap.org/#2. Kellin tried this and failed.
  • The lender has the burden to prove any offsets to fair market value. If the lender fails to prove entitlement to the offset, it is lost. AmWest Bank tried to prove an offset for the one 1/8th share that was sold but failed to do so. The failure led to the denial of an offset in an amount of around $77k.
  • Finally, if your contract includes attorney fees, the prevailing party will normally be awarded attorney fees and costs up through trial and then again on appeal. In many cases, attorney fees can turn into the tail that wags the dog. In small cases, attorney fees can quickly make an insubstantial case into a substantial one.

When you foreclose on property, get your ducks in a row and you will recover max value. It often takes careful planning and always requires good legal advice. If you have questions, you should ask them. If you would like more information about foreclosure and recovery of your assets, contact me, Utah attorney Ken Reich. I do not claim to be a foreclosure guru but I have fantastic partners who are. I regularly represent companies and the individuals and families that own them. My job is to know and understand my clients and their goals. Together with the right legal experts, I can help you get the result you want.