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Question DetailsAsked on 6/3/2011

Has anyone pursued nuisance disclosure suit against a previous seller?

my new neighbor is repairing his roof on his SMOKEHOUSE building. I'll be smelling that awful smell (grease/lard, smoke) from his meat smoking (i think i saw a pig last time). because of this i have to close windows/cant do anything outside etc. I asked realtor whats neighbor like? he said he's older & likes to garden. i thought this dettached structure was like a in law suite. met some nighbors in spring, and they said strucuture was smokehouse! i call city hall & there is no ordinace against it. talked to ward coucilman & he said if we made an ordinance these probably would be grandfathered in. Has anyone done such a thing? is it worth it? does this/can this involve the real estate agent too?

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15 Answers

0
Votes

First of all - and I mean this in the kindest way - your posts would be a lot easier to read and you'd probably get more responses if you tried to construct full sentences and took some time to edit your posts for spelling, etc.

In regard to this situation, several things come to mind:

1. Yes, the previous owner knew about this nuisance and had a legal responsibility to disclose it, but - just as with the drainage issue - you'll have to take the former owner through civil court to get any satisfaction. In the drainage issue you will have real monetary damages, but in this issue you will not because you can't show a financial loss.

2. Despite there being no laws against this smokehouse operating (and I find it difficult to believe there are not any laws), you have a legal right to "quiet enjoyment" of your property, which you are being denied due to this situation. Again you would have to take the neighbor to court, but I'd start documenting the times when you wanted to sit outside, have the windows open, or have guests over and could not due to this situation. Also find out if other neighbors have an issue with this and if so whether they would be prepared to back you up on whatever action you take.

3. The only constructive advice I have at this moment in time is to write this person a certified letter stating that you find this smokehouse offensive, that you are prevented from enjoying your property by his actions, etc. That way there is a record of your objection should you decide to take further action down the road.

4. Here is a link to the State of Ohio EPA regulations about burning, which may or may not apply in this case. The State EPA would be a good source for information about the legality of what your neighbor is doing, in any case. http://www.epa.state.oh.us/pic/facts/openburn_letter.pdf


Answered 6 years ago by Commonsense

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Lucy, deep breath! Obviously you are overwhelmed and distraught: run on sentences and topics with no paragraphing is a rant. Your post is nearly impossible to read or understand, let alone answer. This may not be the right forum in which to seek help.

While I'd dislike like residing downwind from a smokehouse, is the smoker the same guy you refered to as Italian cement guy in a previous post??

Codes & laws vary by state, county & city. What seems odd annoyance to you might be "grandfathered in" for your smoker neighbor. Read your deed. Before grasping at cyber straws your best recourse may be to consult an attorney who is familar with your community & specializes in real estate law, in your state

Answered 6 years ago by tessa89

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Votes

The reason I suggested the OH EPA is that while city and county laws can be different from EPA regulations they cannot be less strict. And no matter where you live - renter or owner, and state of the country - you have a right to quiet enjoyment of the premises. "Quiet" in this case refers not only to noise but to peace in general. If a person is prevented by a neighbor's actions from doing the normal things any homeowner would expect to be able to do - hear his/her TV with the windows open, have guests over for a game of cards, or whatever "normal" people do these days - then the neighbor is infringing on that person's rights, and a pattern of such infringement is against the law.

I wouldn't recommend consulting an attorney at this point. Attorneys want to rack up billable hours, and no attorney is going to take this on a contingent basis because there is no significant financial loss. I've had great luck with my local EPA guy, specifically in regard to my neighbor's illegal burning. Many times the right grass roots person - and I admit I spent hours on the phone before I found this particular man, but it was my time and it was worth it - can do much more good than a court of law.

Answered 6 years ago by Commonsense

0
Votes

Lucy

On Mr. Bruss' web site, he lists some of his free articles (usually sells the reports because that is how he makes money).

The one you could be talking about is Nuisance Abatement.

Click on http://www.bobbruss.com/ Then click on Nuisance Abatement in the box on the right side of the page titled Free Bruss Articles.

Of course, you could just take the short cut and click on http://nuisanceabatement.bobbruss.com/nuisanceabatement/


Answered 6 years ago by Old Grouch

0
Votes

thanks commonsense for reply & suggestions.


1) I did go to the EPA link, but all it had was about "open burning" of animal carcasses, & that won't apply cuz his building has a chimney/smokestack and industrial-looking units that stick up from the roof -which "twirl" around . (Again, one of these units is also on his house too).

2) I also went to codes.ohio.gov/org/13 then to title 37 & then to chapters 3704, 3706 and 3767(nuisances). WOW-alot of stuff to try & understand. SEEMS like such a long legal battle.

3) I don't think talking to him about his smokehouse will do anything. He's from "old county" & has been doing this for years -PLUS, he just redid the smokehouse roof-so i dont think he plans on stopping.

4) FUNNY THING...i remember when i had the window company come out---(warrenty transferred over thank god, as 1 window upstairs "popped" & was all cracked the 3rd month here, along w/another window replaced & 2 screens)---the repairman commenting on how "clean the tracks" & "looks like they never opened their windows", as he showed me how to open them to clean....HMMMM,...I wonder why....ALSO, noticed the only neighbor i have next to me, always has A/C on. AND, neighbor next door to SMOKEHOUSE just put their house for sale, but dont think it blows smoke their way.

5) I love the location--this developement is the next cities dividing line from where other house is & only about 8 min's more for kids to school/work, & is where their late fathers 2 brothers (their uncles) & their families live. My immediate neighbors are about 20+ years older than me & occsionally have grandkids over AND all are NICE----including "SMOKEHOUSE".

6) AT this point, with all the continuing problems/costs with this house, all i want is outta here--that "RESCISSION of the SALE" --i read about in my local paper AND buy another house in this SAME development. I don't mind learning/doing all the homeowner things my husband did,--(i have learned & really love using a crowbar, its like therapy, LOL)-- BUT,, flooding/gutting basesments/windows bursting/stinky instant hot water tap/new paint bubbling off walls & new wallpaper coming off/full exterior house excavation/garage floor replacement & cementing front steps bricks cuz you can take some of them out from under the cement pad...list goes on......well, i think i've had enough..and, I'd rather move than start troubles w/neighbor & have the others be mad at me, for i am not a trouble maker.

7) click on Old Grouch Mikes link (to that Bob Bruss i referred to in my first nuisance post) . It's in Mikes reply to my post..BOB Bruss has all kinds of stuff he writes.

thanks again....Lucy

Answered 6 years ago by lucy

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The EPA site I sent you is HUGE. Here is the specific pamphlet on burning laws from the site, which might help you:

http://www.epa.state.oh.us/pic/facts/openburn_letter.pdf

In my experience, problems with other people can often - even usually - be worked out with calm rational communication. Most people are not evil and if they know they are causing issues it is distressing to them. Even if Mr. Smokehouse is most likely going to continue no matter what you do, is it right to contemplate action against him without giving him the opportunity to fix the situation? If you read Bob Bruss' article, then you will know that he recommends in each case that you speak to the person causing the nuisance, etc. before taking legal action which is costly, time consuming, and is likely to permanently damage your relationship with neighbors. This is excellent advice, IMO.

An example of this is that while doing some routine work for us on our new property, our arborist spotted a very large oak tree on the south property line that is nearly dead and in his opinion poses a hazard. We called the neighbor on the next property, whom we have not met. We left a message for him asking him to call us. He didn't respond to that message or to the next one, so we sent a certified letter. (This is over the span of about two weeks.) It would have been easy to start getting someone else involved in this issue and let it get nasty, but we didn't. We could have quite reasonably concluded that he didn't care about the tree or he would have returned our call or responded to the letter. Last night he called us and he was perfectly polite. Turns out he was out of town the whole time and had just gotten our messages and our letter. What could have become an ugly legal thing, or at the very least a nasty neighbor dispute with hard feelings on both sides, is most likely going to be resolved amicably.

In regard to recission of sale, this will not be easy for you if it is even possible, and it will take a lot of time and aggravation. In order to have any hope of being successful in this, you'll have to show that you took all reasonable care - with inspections, etc. - to determine the condition of the house before buying it. Be prepared to upset a lot of people in the process, and there will be court costs at the very least. In general, after buying a house and finding there are a lot of problems with it (even problems the former owner should have disclosed), a person cannot just decide they've "had enough" and move on, unless they can find someone else to buy the house. That's why inspections and buyer awareness are so very important.

Even with inspections, anyone who has ever bought a house will tell you there are bound to be some nasty surprises. Like you, we wondered why the former owners of our new house had not had window screens in the windows on the east side of the building. It turns out there was a downdraft that brought the smell of septic gases in from the roof vents at certain times of the day. Of course they should have disclosed this, but then who would have bought the property? I found some lovely charcoal filters that one of our workmen put on the vent pipes and the problem has been taken care of. We are amazed that the former owners lived with the smell of septic gas for 10 years without doing what we did within two weeks, but that's humans for you. We also had a couple of HVAC issues that the formers owners should have disclosed and our inspector should have found, and other things that on various occasions had me saying I wanted to move out. Nothing as major as what you've experienced, of course.

I am totally willing to believe you are not a person who wants to cause trouble, but in these cases the trouble is being caused by other people, and the only rational response is probably going to be one that upsets these other people in some way. That's too bad but it's unavoidable if you're going to be assertive and do the right thing here. Whether you talk to Mr. Smokehouse and/or the former owner of your house, send them letters, or go for a recission of sale, you are going to be the target of some unpleasant communication in the near future. Just be sure you behave correctly at each point and let the chips fall. That's all anyone can do, after all.

Answered 6 years ago by Commonsense

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THANKS OLD GROUCH for the link.!

1) I think others will find it interesting & we all may have to think about our disclosing stuff as sellers....I know that I will disclose my SMOKEHOUSE neighbor , IF it comes to this .

.2) Just FYI to all--- In my paper it was the BUYERS asking if SELLERS should've disclosed noisy neighbor-even though there was no noise ordinance re; loud music & they asked if they could file lawsuit against the SELLER.. BUT basically Mr. BRUSS's answer is the same. That's how i learned about a Nuisance disclosure & RESCISSION of the SALE AGAINST the SELLER.

3) HOW can i find the california case that mr. bruss cited, so i/anyone can read about it??


4) I see you live in Indiana---that's where supposedly my SELLERS moved to!!!!!



thanks again for your help----lucy

Answered 6 years ago by lucy

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"I know that I will disclose my SMOKEHOUSE neighbor , IF it comes to this ."

The best legal advice is to disclose everything. But in practice no one does this, because it would mean they would be unable to sell their house. If all issues regarding any house and property - even a relatively new one - were listed on paper no one would ever even consider buying it. And the way the law is written only serves to further this situation, because there is no easy or signficant remedy for nondisclosure.

The best advice I can give is to read the disclosure form very very carefully when you are preparing to sell your house and answer each question as honestly and concisely as possible. In that situation any seller will find that it is quite possible to fill the form out completely and without lying, and to come away with the feeling that the house will still be of interest to prospective buyers.

Answered 6 years ago by Commonsense

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Thank you tessa again for your reply & a "reality check".

1) .I joined ANGIES LIST & this MESSAGE BOARD cuz i needed help/advise of others, Just like everyone else does....I guess in my case, i did so at the "PEAK of DESPERATION" . SOOOO---my APOLOGIES to ALL, and MANY THANKS AGAIN to ALL who replied!!!!!!

2) Smoker guy & Italian cement co. owner are not the same person, but both are my neighbors. BOTH of them, as well as my immediate neighbors, are "originals" to the neighborhood (30+ years!!!). I believe they all have good relations w/each other from talking to them & i see it also.

3) Per CITY HALL--there are other SMOKERS in city i live. There's at least 1 more in neighborhood my brother-in-law told me. that one lives on the next street from him . I'm gonna have to remember to have him show me where its at ---i want to ":COMPARE STRUCTURES" & see if theirs is as big as mine. & or looks like my smokers, w/.all his smokestacks, etc. Dont know if my smoker had to have building permit, but it has to be "X" amount from property line i am told..I dont know what the "x" amount is, nor do i know my property lines (only on paper) cuz i cant find the "pins" in the ground--my brother-in-law & i tried finding them w/his metal detector w/out luck. City says to hire a ?surveyor? to come out & put the pins in----DOES this sound right? And i'm sure THAT I have to PAY for this tooo.

4) Per city hall & WARD COUNCILMAN---people HAVE called /complained about SMOKEHOUSES..i dont know if any complaints on my smoker when i called cuz i dont know his last name or house address. ALSO peoples are calling in & complaing about those outdoor fireplaces too. HHMMM--i think its time for some kinda ordinance for all this smoking going on.

5) Lawyer soon.? Today the "video " guy will be coming out again to to camcord w/voice over, my foundation/pipe problems for legal documentation for my other post. He knows a lawyer-although he's not specifically a real estate lawyer--and he told him about my basement/flooding issues.. i guess this lawyer just won a case for a buyer & buyer got $16,000 due to him..SO, i'll probably check this lawyer out BUT VIDEO guy & lawyer dont know about my SMOKER guy problem, because VIDEO guy is FRIENDS & often works w/ Italian guy ...WHEW....BUT then may be a problem if i use any lawyer & tell him about my smoker---even though i want to go after the seller---because then video gu;y will learn of this when called in for depositions and in the end my smoker & neighbors may find out ....

6) Possible case?--caught up on things w/my best friend yesterday. SHE came up with a thought to ponder. GOING BACK to the plan that i had when i bought this house, on building an addition for my dad....Her thought/opinion/question was this...that even though my SMOKER has a right to do this as there are no ordinances, the SELLER &/ or AGENT took away my/dads right &/or option to LIVE here, for health reasons, and with his only child, by not disclosing the smokehouse , PlUS denying me the right to enjoy homeownership...


.............lucy................


5)

Answered 6 years ago by lucy

0
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Lucy, I understand your distress and possible confusion about city codes. Surely your lawyer explained that when a community becomes a city and new building codes are established, usually existing homes & out buildings are "grandfathered in" to protect the orignal property owners.

For example: 40 yrs ago we piurchased a home in a new residental developement located in the county: original property owners were allowed to maintain domestic (large) livestock & we were not! eek, rooster crowing before dawn! Example #2, when I relocated to my current home, a differenty county that later became incorporated as a city: city codes do not apply in regards to existing structures or maintaining livestock. As lands are subdivided, no one maintains livestock although city code says we can have pot belly pigs, dogs, etc>- PETS not to exceed 4 critters. New neighbors BBQ stench often forces me to close windows to a cooling summer breeze.

Were it me, I think I'd ask the Serbian "smoker" to share some real bacon.... Sad when city dwellers and country folk butt heads

Answered 6 years ago by tessa89

0
Votes

"eek, rooster crowing before dawn!"

"New neighbors BBQ stench often forces me to close windows to a cooling summer breeze."

I don't know if I haven't said this in the right way before, but I need to say it again because I'd sure hate for someone to come along and read this post and end up believing that because neighbors are engaging in legal activities there is nothing that can be done about the nuisances they are causing.

A person may be allowed to keep livestock, but if those livestock interfere with a neighbor's enjoyment of his property then that neighbor has a legitimate complaint. LIkewise with smells from barbecuing, if they are persistent and frequent enough. You have a legal right to do the things any reasonable person would expect to do in your situation, such as not be awakened by a rooster every morning and have your windows open when you want to without being smoked out of your house. To put it another way, it is legal to have a motorcycle, but that doesn't give the owner of that motorcycle the right to sit on it at 3:00 a.m. every day and rev it repeatedly, waking up the neighborhood.

"Sad when city dwellers and country folk butt heads"

I don't see any of this as "city v. country dwellers." I see it as the issues faced by people who only want to live their lives in peace being assaulted on many sensory levels by those who don't give a monkey's hindquarters about other people. So many people just don't seem to know or care that anyone else exists.

[and for the record I am not arguing with you, just stating my opinion]


Answered 6 years ago by Commonsense

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"HHMMM--i think its time for some kinda ordinance for all this smoking going on." There ARE ordinances. There are many laws. I sent you the link to the Ohio EPA website, and on that website you can find the person who is in charge of your district.

" City says to hire a ?surveyor? to come out & put the pins in----DOES this sound right? And i'm sure THAT I have to PAY for this tooo." Yes, you have to pay to have your property surveyed.

"SO, i'll probably check this lawyer out " Why? Because even though he's not a real estate lawer someone him about your issues and he won a case for someone else? There are so many ways to find a qualified lawyer. . . . . .

" i dont know his last name or house address." You actually don't know the name or address of this person with whom you've been having so many problems? That sounds fishy.

"the SELLER &/ or AGENT took away my/dads right &/or option to LIVE here" Your dad never had a "right" to live there, and the seller didn't take away his option to live there anymore than they took away the option of everyone else who isn't the owner to live there.

I'm not suspicious by nature, but I'm seriously starting to think all of your messages are some kind of silly hoax, because they don't make sense on so many levels. Good luck with whatever is really going on in your life, but I'll leave the "solutions" to others from now on.

Answered 6 years ago by Commonsense

0
Votes

Lucy, obviously you are overwhelmed because of all the unanticipated issues: "I am a first time homebuyer w/children & an elderly father . I am a widow/mother/daughter. I have water & other problems w/ this house that have surfaced 2 months into owning it . I have a smokehouse neighbor i wasn't aware of. I have no knowledge or experience of homeownership:" Being a first time homeowner IS scarey; hindsight is often 20/20. IMHO if anyone claims to have never encountered an unanticipated problem they lucked out.

Although the troubles you have encountered appear to stem from purchasing this home & may seem to overlap, try compartmentalizing same or similar issues to better focus: sales contract & deed (realtor & title company); interior & exterior water damage & repairs; caring for your children & elderly Dad; family trust issues; unexpected noise & air quality issues. IMHO, I'd be less concerned about Serbian smokehouse and focus on possible recourse concerning structural problems due to water - real estate law; time may be of essence. For sure, I recommend you get all official statements in writing; also esimates for any necessary repairs. As a CYA, take photos too, even the little incidental things.

Re survey pins: unless cemented in the ground or embedded on a utility pole that hasn't been replaced, in time they disappear and new neighbors have unmet expectiations: 2 options: let it go, or enter into expensive litigation.

Answered 6 years ago by tessa89

0
Votes

Lucy, I understand your distress and possible confusion about building and use codes. Surely your lawyer explained that when a community becomes a city and new building codes are established, usually existing commercial properties, homes & out buildings are "grandfathered in" to protect the orignal property owners.

For example: 40 yrs ago we purchased a home in a new residental developement located in the county: original property owners were allowed to maintain domestic (large) livestock & we were not! Example #2, when I relocated to my current home, a different county that was later incorporated as a city: city codes do not apply in regards to existing structures or maintaining livestock. As lands are subdivided, no one maintains livestock although city code says we can have pot belly pigs, dogs, etc>- PETS not to exceed 4 critters.

Were it me, I think I'd ask the Serbian "smoker" to share....

Answered 6 years ago by tessa89

0
Votes

Hi Lucy. Sorry you've had such a hard time with your neighbors smokehouse.

I'm a real estate agent and have been licensed in a few different states. I have good news and bad news for you. The good news is, you have the right to enjoy your property any way you wish within the bounds of any covenants and restrictions of your community and city. More good news is that the house you bought seems to be something you are happy with and you have not discovered, after the purchase, that you are in the final approach course of a nearby runway, your news house isn't 500 feet away from a pig farm, there is no railroad track laid a block away with trains running every 15 minutes from 4am to 7am etc. etc.

The bad news is: 1) your neighbor also has the right to enjoy his property within the same bounds. 2) As a Realtor, knowing the private activities of neighbors is not a reasonable expectation for our clients to have. However, if a Realtor does become aware of something that we might reasonably expect would effect property value or use, we are required in all states to disclose this to you. Unfortunately, I think most rational people would not see a smokehouse as something that detracts from a neighboring property.

Of course, you always have the right to consult an attorney, or retain one to file a suit on your behalf. But, honestly, your best bet may be to juust sell the house and find a new locatio that you find more tolerable.

David
San Carlos CA Realtor

Source: http://www.BelmontAgent.com

Answered 5 years ago by DavidGowans




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