Q: I live on the west side of Fairfield and recently our neighbor behind us decided to put in a swimming pool that is currently under construction. If you know anything about the soil over where we live, it’s pretty sandy. You can’t just dig a hole because it’s a little like digging at the beach. The more you dig, the more the sides fall in. In our case, the pool looks like it’s supposed to be pretty close to the fence between our lots. Their digging has already caused a portion of our fence to fall over on his side and now our landscaping and sprinkler lines are getting drawn into his hole. I’ve tried talking to the guy and all he says is that he’ll pay his half to replace the fence once the pool is done. But we’re losing our backyard. Another 2 feet and our stamped concrete patio will be at risk of cracking and moving. What is the law is our situation?
A: To the best of my recollection, in 25 years of writing this weekly column (you can do the math) that’s a first. Congratulations.
There are no specific laws in California concerning pool construction, but the issue is known in the real estate world as the right to lateral or subjacent support. That’s probably because I can charge more for using terms nobody can decipher.
If you’re interested in reading the law itself you can do a search on Google for California Civil Code 832. That code section is pretty long but in relatively plain English. I’ll summarize here.
In short, anybody who digs a hole is responsible for any damage the digging, or the hole itself, causes to anyone else’s property.
The idea between lateral and subjacent support is simply you have a right to keep in place whatever was holding your dirt up when you bought the property. Or at least to have the other owner make a good substitution.
In this case, your neighbor’s dirt was holding yours in place. Once he removed his dirt, yours started deserting you.
Under the law, your neighbor was required to give you notice of his intent to excavate. The notice had to include how deep the excavation was going to be and when the work was scheduled to begin. The digger must then take “reasonable precautions” to protect the soil of the neighboring property. Typically, that means using temporary retaining walls to keep the dirt from moving.
If your neighbor is having a professional company dig his hole, I’m surprised you’re having this problem in the first place.
So legally you’re in good shape, but what do you do about it?
As is usually the case, if reasonable people can’t work this out (or if you’re short one reasonable person), the court is the only real enforcement mechanism. In that case you have two choices.
The first is to just live with the problem until the pool is done and then sue for the cost of fixing everything. If the cost is less than $10,000 you can go to small claims court. Otherwise a more traditional lawsuit is necessary.
The second is a more unusual procedure but may be worth it if your estimate of the damages is going to be high. In that case, you can go to court now and ask for an injunction ordering the digging to stop. That can be done relatively quickly.
An injunction is simply an order from the court that someone do, or in this case stop doing, something. They’re issued when the court is convinced the harm being caused is unreasonable and, from a practical perspective, irreparable.
You’re losing the enjoyment of your backyard. Even if that’s a temporary problem, you theoretically can’t get back the time you’ve lost and so you’re eligible to ask for an injunction.
I’d start by waiving the civil code in your neighbor’s face. If that doesn’t work, you’ll have to choose Option A or Option B.
Tim Jones is a real estate attorney in Fairfield. If you have any real estate questions you would like to have answered in this column you can contact him at [email protected].