Excavations next door

by Lou
(West Virginia)

Visitor Question: We purchased our property and moved in one year ago. Although there is no active HOA, there are CCRs that do "run with the land." The next door property owner is violating many of these.

Most bothersome, however, is the use of a large tractor 3 days a week, about 6-7 hours per day. Apparently he has been doing this for the past 18 years, and none of the neighbors care because they can't hear it, as the properties are 5 acres each. The portion he excavates is right next to our house, so it's all we hear from about noon until 6 or 7 pm.

We asked that he reduce the use to one weekday, for five hours. He refuses, and further added an insulting letter. In this letter he claims that there was never an active HOA, that the HOA decided not to continue or enforce anything. I have bank statements showing there was an HOA, and I don't know how an HOA that doesn't exist meets to dissolve anyway.

When we purchased the property I saw none of the violations he is now committing occurring. For example, his RV was not there, or two trailers, a temporary shed, and the infamous tractor was being kept in a storage facility at the end of the road. That practice ended very soon after we moved in.

I feel as though he was hiding his violations from us, though I don't know if it was at the request of the people we bought our home from. I should also add, and this maybe the most frustrating part, that he is the only person who doesn't live on his property. He comes in from another nearby state to do his weekly excavation, and this is really the only activity that occurs on this property, except maybe as a parking lot for his RV for half the year. We specifically bought our home for peace and quiet for which we are at his mercy for.

He seems very confident he has every right to use this tractor whenever he wants, because he's been doing it so long, and because other neighbors are committing their own violations, like having a pull trailer in their yard or letting their kids use four wheelers. No one causes the noise he does with such regularity as him, yet he is the only one who doesn't even live here.

I've asked the neighbors to restart the HOA, but no one wants to be subject to the restrictions they all signed when they bought their property. He's an older gentleman who is not very nice, but all the other neighbors think he's great, and we're the new kids on the block.

I'm very afraid to get into a lawsuit for fear of losing. What should we do? We have retained a lawyer who said the restrictions exist on the deed and we have the right to enforce them.

Editors Reply: We are sorry you are having such a frustrating problem.

You have taken the best step we could advise, which is retaining an attorney. As you know if you have read our pages, the only way to enforce deed restrictions is for someone to sue.

In this case it sounds as though your neighbors would not support an HOA filing a lawsuit anyway, even if the HOA were active. So put the HOA matter out of your minds, and concentrate on whether you want to sue by yourselves.

Perhaps you can coax your attorney to give you a candid assessment of whether you are likely to win or lose, should you file a suit. It sounds as though the restrictions that you are aware of are valid. But each state and even each jurisdiction within a state may have a different probability of success. Also ask about the likelihood of recovering your legal fees.

Other than that, you are left with personal persuasion of your neighbor. Since you are new there, he may have just decided he doesn't like you and is having fun bothering you. Perhaps time and more of a personal relationship will help resolve this problem. In this regard try to reduce your resentment of the fact that he doesn't live there, which is not relevant to how you solve this problem.

Lastly, just know that you are not alone in having a shadowy or non-existent HOA that will not take action. Indeed, this is common enough we had to change the title you gave your deed restriction question so as not to be too repetitive. Good luck to you.

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