By Harvey S. Jacobs April 23, 2015
I am a Realtor and recently sold a townhome to a nice young family. They have learned that there is a very abusive neighbor who has made their lives a living hell. He shows up at their door with his German shepherd dog and yells at them for no apparent reason. He is loud, boisterous and very intimidating.
Police have been called several times. Peace orders have been obtained, but the behavior continues. Now they are thinking about just selling and moving elsewhere. We have a few questions. First, can they sue the neighbor for their damages if they sell at a loss and/or for moving and other expenses? Second, can they sue the previous owner/seller for failing to disclose this well-known abusive neighbor?
Finally, if they do list their home for sale, do they have to disclose this abusive neighbor? -JW
It appears that your client may be able to sue his neighbor for causing a private nuisance, trespass and possibly assault.
Nuisance, as a legal theory, has been recognized since 1066. In its present evolution, the courts define private nuisance as: unreasonable or intentional conduct that causes substantial and unreasonable injury or interference with another ‘s use and enjoyment of his real property.
A court will decide if the nasty neighbor ‘s actions are reasonable. For example, courts have found that regularly playing a radio so loud that it could be heard in the house next door was unreasonable. If the nasty neighbor regularly appears at your client ‘s front door with his German shepherd in tow and intimidates your client without provocation, this conduct could easily be ruled unreasonable and certainly intentional.
That this intimidation takes place on your client ‘s property could support a trespass claim. Trespass occurs when, without consent, one enters onto another ‘s property in an unlawful manner. Unlawful manner means the trespasser has no legal right to be on the property. To establish no consent, the police often advise homeowners to post the property with a No Trespassing sign.
The courts will next examine whether the nasty neighbor ‘s unreasonable conduct has caused your clients substantial and unreasonable injury. If the court finds that because of the aggressive neighbor your client reasonably fears coming and going through his own front door then it could establish substantial injury.
In addition, if your client believed that he was in imminent risk of bodily injury from his neighbor and/or his dog and believed that the neighbor possessed the ability to make good on that threat, then it is a civil assault.
Once your client proves he is the victim of a private nuisance, trespass and/or assault, he can ask the court to prohibit the nasty neighbor from continuing his behavior. He can also request monetary damages for all losses caused by the nuisance, including the diminution in the property value and for any physical or mental injury. Assuming the nasty neighbor ‘s conduct is found to be outrageous or malicious, punitive damages are also available.
Whether your client can sue his seller for failing to disclose this nasty neighbor is a gray area. Many sales contracts have adopted a caveat emptor (let the buyer beware) approach. In those cases, the courts may rule that it was up to the buyer to knock on the neighbor ‘s doors to investigate. Depending upon the contract language, and the seller ‘s actual knowledge, the seller may not have had a duty to disclose. Unlike the failure to disclose a known but latent property defect, the existence of a nasty neighbor is not a property defect.
The Realtor ‘s Code of Ethics provides that Realtors shall avoid exaggeration, misrepresentation, or concealment of pertinent facts relating to the property or the transaction. Realtors shall not, however, be obligated to discover latent defects in the property, or to advise on matters outside the scope of their real estate license.
But if your client decides to sell, the safest approach is to disclose. By disclosing, he cannot later be accused of hiding the nasty neighbor from his own buyer. If that disclosure causes him monetary damage, then he can sue the neighbor to recover those damages.
He will have to prove that the decrease in property value is directly related to the nasty neighbor – a difficult but not impossible burden of proof.
Harvey S. Jacobs is a real estate lawyer with Jacobs & Associates Attorneys at Law in Rockville. He is an active real estate investor, developer, landlord, settlement attorney, lender and Realtor. This column is not legal advice and should not be acted upon without obtaining your own legal counsel. Contact Jacobs at (301) 417-4144, jacobs@jacobs-associates.com or ask@thehouselawyer.com.