CCRs

[sjeakins]

What is the name of your state (only U.S. law)? Virginia

I have owned a property for 10 years, but received a CO to occupy the home in 2007. While building the house we made regular visits but only lived there on a daily basis after 2007.

The CC&Rs preclude homeowners from felling trees greater than 6" in diameter at the base within 15' of a property line. Last Saturday I discovered quite coincidentally, by viewing previous captures of our home construction on Google Earth, that my neighbor cleared 10' of the 15' no-cut zone for a distance of 350' along the property line. From Google Earth it seems that they cleared this land between 2005 and 2006.

I do know that the statute of limitations begins from the point of discovery, but I'm worried about whether or not I will pass the "could have, should have" criteria. 200' of the infraction runs along a ROW, although the ingress and egress is over an 8' gravel road and there are 20' of trees and shrubbery between the road and the property line which blocks the view. 150' of the infraction runs along our private property line.

In addition, this particular neighbor has, on more than 13 different occasions, made a point of interfering with work to clear the ROW, citing the 15' no-cut zone, trespassed onto our private property to talk to workers about the provision. We actually had to get a court ruling that the CC&Rs did not override the deed to allow us to clear the ROW. In other words, these particular neighbors were so aggressive in protecting that barrier it instilled a sense of security in me that they would never breach the no-cut zone. Of all of my interests that I may look to protect, that seemed to be the last one I needed to worry about.

I was absolutely shocked to discover that they themselves had cleared 350' along our property line and the ROW.

Any advice about how to convince the Court that discovery actually happened 2 days ago?

Thanks

 

[NC Aggie]

You referenced this being an infraction of the CC&R, so I assume there is an active homeowner's association of some kind? So any violation of the CC&R would start with and be governed by whatever enforcement/violation mechanism outlined in the CC&R. I don't believe this would be a matter you could take to court without going through your association first.

 

[154NH773]

I do know that the statute of limitations begins from the point of discovery, but I'm worried about whether or not I will pass the "could have, should have" criteria.

I think that it will be difficult to prove to the court that you had no opportunity to discover the infraction.
The court in my case said that I should have discovered an infraction by examining the deeds of my neighbors (not even abutting neighbors) when there would have been no reason for me to do so, just because it was possible for me to do so.

So, to not notice major cutting of trees, or the result of the cutting, would be a stretch, considering the fact that you owned the property at the time.

 

[NC Aggie]

I think that it will be difficult to prove to the court that you had no opportunity to discover the infraction...

But again, this wouldn't be an issue to take before a court. It really would boil down to whether the administrative board to oversee violations of the CC&R chooses to act on this.

 

[Terminus]

Aerial images on Google earth

I get about 3-4 calls a year from a potential clients looking at google earth images proclaiming that "My neighbor's garage is over the line according to google earth!". The truth of the matter is that how the aerial images are placed into the database easily have an accuracy value of 15' +/-. The images you see are flat images of a curved planet....hence the issue and limited accuracy (you will also notice the disclaimer "This is not a survey") because the boundary lines are just a best guess approximation.

So pursuing something on approximations may not be your best bet......now if you get a survey and they locate recently cut tree's within 15' of the boundary, then you may have a case.

 

[NC Aggie]

I get about 3-4 calls a year from a potential clients looking at google earth images proclaiming that "My neighbor's garage is over the line according to google earth!". The truth of the matter is that how the aerial images are placed into the database easily have an accuracy value of 15' +/-. The images you see are flat images of a curved planet....hence the issue and limited accuracy (you will also notice the disclaimer "This is not a survey") because the boundary lines are just a best guess approximation.

So pursuing something on approximations may not be your best bet......now if you get a survey and they locate recently cut tree's within 15' of the boundary, then you may have a case.

That's a VERY good point and in the court of law and with most municipalities, you wou wouldn't even be able to use aerial photographs as your sole evidence to argue issues concerning survey boundaries.