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Remedies for Harms to Property

September 6, 2017

 

Encroachment onto Land

A party's trespassory use and possession of another's land by virtue of the building structure or other object, such as a tree, is an encroachment upon that land. In such an event, the plaintiff in the matter is entitled to damages stemming from the encroachment. When the encroachment is permanent, damages are measured by the reduction in value of the plaintiff's land. When the encroachment is temporary, damages include the cost to remove the encroachment and restore the land to its pre-encroachment condition and the rental value of the land subject to the encroachment.

 

Injunction

A plaintiff may be entitled to a mandatory injunction ordering the defendant to remove the encroachment. The legal remedy of damages is inadequate because land is unique.

 

Intentional Encroachment

If the defendant has notice that the structure will encroach upon the plaintiff's property, then the plaintiff is entitled to a mandatory injunction ordering removal of the structure.

 

Innocent Encroachment 

If the defendant does not have notice that a structure will encroach upon the plaintiff's property, then the plaintiff is entitled to a mandatory injunction unless, after weighing the equities, the court concludes that hardship on the defendant to remove the structure is significantly greater than the injury to the plaintiff from the denial of the injunction (burden test and balancing of the hardships). 

 

Self Help

Particularly in cases of plants, a plaintiff may be able to remove the encroachment without resorting to the legal process. 

 

Injury to Real Property

A defendant's liability to the plaintiff may stem from the defendant's injury to, or destruction of, the plaintiff's real property, including not only the land itself and structures, such as buildings, on the land, but also things attached to the plaintiff's land, such as trees and crops.

 

Damages

If the defendant injures or destroys the plaintiff's real property, then the plaintiff is entitled to money damages. The damages may be measured either by:

 

  • The cost to repair the injury or to replace the destroyed property plus any recovery for the loss of the use of the property, or, 

  • The diminution in the value of the property.

 

Injunction

The plaintiff may seek injunction to prevent the defendant from injuring or destroying the plaintiff's real property. Because land is considered unique, damages are not considered an adequate remedy. 

 

If you need assistance with determining real property remedies or have a disputed matter in this area, it is beneficial to retain experienced and professional attorneys to assist you with this matter. Please call Aziz Legal by phone at (408) 203-4627 or email us at abid@azizlegal.com.

 

This article is merely informational and is not intended to be used as legal advice. Use of any information from this article is for general information only and does not represent personal legal or tax advice, either express or implied. Readers are encouraged to consult Aziz Legal, or another attorney, for any specific legal matters. 

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