6/19/2007

An update on trespassing...

Literally, just one minute after I read this comment from Lisa, an inspector from the Department of Public Health arrived (several minutes late) to document the nuisance and threat to public health that is my neighbor's backyard. We made a formal complaint about rats and mosquitos a month ago, and today an inspector came to investigate.

I took her back and she quickly agreed with us (well, with everyone [who isn't headless]) that the situation requires action, and she took a few pictures to support her report.

So what would you suppose "requires action" means in San Francisco?

Well, as I understand what the inspector explained to me, the Department of Public Health will immediately notify the property owner that he's in violation of certain health and safety codes and must take certain actions to remedy the situation within two weeks (a period that must, by law, include two weekends, according to the inspector). The property owner also has some two-week period to request a hearing (which I assume may result in extensions). This is all to ensure the owner's right to due process. (No complaints from us about due process; we've lived next to this mess since October 2003.) Anyhow, this gives the owner a total of four weeks to do something.

The inspector tells me the time-lines are very strict and rigidly enforced. She said Mayor Gavin Newsom instituted the time-lines, and what comes next, as part of his program to improve responsiveness and accountability in San Francisco city government...

So, if the two two-week periods toll, and no hearing is requested, and no suitably corrective action is taken, the matter is forwarded to the city attorney's office. There, a committee is formed with representatives from various city departments who come to the property and inspect it for all code violations, including those happening inside the house!

The property owner is expected to correct every violation they find, or the City will do it for him and put a lien on his property to guarantee payment for services rendered.

The inspector said she'd call in 30 days with an update...

***

And what about my trespassing? What's the legal status of that? I did a little research...

I don't see anything in California state or San Francisco municipal codes that governs my particular transgression. (Apparently, it really is necessary to have "No trespassing" signs posted at regular intervals to trigger criminal jurisdiction.) So that leaves common law.

What I did was tortious. Well, I knew that. Trespassing is a tort with absolute liability, so I may be found liable for nominal damages just for hopping the fence. (A tort has four elements: duty, breach, cause, harm. The trespassing act itself is the harm, so I'm liable just for that even though I didn't damage his property during the trespass, etc.)

But to get those nominal damages, my neighbor would have to sue me. Which means he would have to pay the court costs to get that suit rolling.

And then I could counter-sue him for trespass because his wisteria vines climb on my house, and his Tecomaria capensis is bowing our fence into my yard. These things interfere with my right to the free ownership of my property. These are harms on top of trespass for which I might seek compensatory damages which can be far more than the nominal damages for which I might be liable.

I might even be able to argue for a reduction in the nominal damages for the cost of the mosquito dunks I dropped in his standing water since they arguably represent an improvement to his property, and those things aren't cheap.

Anyhow, I'm not a lawyer. The above does not constitute legal advice.

I'm just blogging...

ADDED: I get relief!

4 comments:

JvA said...

Hmm. What you said sounds about right, except this: "And then I could counter-sue him for trespass because his wisteria vines climb on my house, and his Tecomaria capensis is bowing our fence into my yard." You might need to dig into the code a little further to see if there's an exception for vegetation.

Crazy that they get the city attorney's office involved when there isn't even an appeal! And that they're going to search his house as part of a complaint of a yard issue.

It sounds like you'll prevail -- you just need to wait it out.

If he files an appeal, be sure to request a copy of it (even if you have to file a public disclosure request, or FOIA request, or whatever it takes). Because you'll want to rebut his appeal and get your rebuttal in the file ASAP.

Good luck, Chuck!

chuck b. said...

His opportunity to demand a hearing before the DPH is his chance to appeal the notice. If he wants to get a lawyer, I assume he can appeal any action by the city atty.

And they're not going to search his house...their going to inspect it for code violations! :)

It's illegal to maintain a house below code in San Francisco. From the outside, the inspectors will see the wisteria vines bowing the 1/4" water pipe running running along his house. They can see the They can see the wisteria taking up his roof in the corner and along the back, letting water in and breeding mold. These things all threaten the structural integrity of the house and make it a nuisance. They have probable cause to believe the situation is worse inside.

That would be my argument.

Carol said...

I hope this all works out and the property gets cleaned up. Keep us posted!

lisa said...

Wow....what a deal! At least you may have your curiosity satisfied about what the neighbor's "deal" is if he lets them inspect the inside, but I doubt it. If he's interesting enough to have anything exciting to hide, then he'll want this to go away, pronto!
BTW-be sure you get dibs on that cool statue and those pots! ;-)