Right of way?

[jorton56]

Kansas

The owner of the house next door claims she has a foundation problem and wants to bring in a backhoe to dig down to find out if the problem lies there. Her property adjoins mine along my driveway which was newly poured last summer. Also, along my drive b/t her property and mine, is 12 flower boxes (3'x3') made of landscape timbers as well as an arbor with a 7 year old established vine. We just finished with this construction and it cost us over a $1,000. If she were to have someone come in, a lot of that would have to be torn out especially the arbor, vine and some of the boxes.
What are the laws governing this, our rights, as well has any possible rights she may have. Do I have a right to hire an inspector to show whether there is a problem with her foundation? I ask this because I see along her fireplace where it meets her soffit her gutter is running towards the fireplace and not toward the downspout so every time it rains it gushes down her fireplace right into the window well of her basement. The siding is coming away from her house and a hole has formed the size of a football at the corner of her soffit and fireplace.

[drewguy]

Please clarify a couple things:

1) If she needs to come onto your property or dig up your driveway on your property, she needs your permission. You may wish to give it on condition she repair any damage. If it's her property she's going on, then you have no say.

2) Is she alleging you created the problem? If so, I would be reluctant to give permission, but you might do so to remove doubt.

[jorton56]

Originally Posted by drewguy

Please clarify a couple things:

1) If she needs to come onto your property or dig up your driveway on your property, she needs your permission. You may wish to give it on condition she repair any damage. If it's her property she's going on, then you have no say.

She would have to come onto my driveway and flower bed with a backhoe to access the 4 ft strip of her property. That would mean that the backhoe would always be on my property, ie: driveway and flower bed while the dirt is dug away from her foundation [i]and [i] that would also mean that there may be a need for a dumptruck to put all the dirt in as there is no room except on my drive or flower bed. I could understand but it WILL require that my plants and heavy boxes be removed to grant that access and there is definite reason to believe the newly poured driveway would crack under such heavy equipment.

2) Is she alleging you created the problem? If so, I would be reluctant to give permission, but you might do so to remove doubt.

No, not at all

[FarmerJ]

If her home has a basement block wall that is failing, like bowing into her basement she does not need to have heavy equipment come onto your property, the bowed blocks can be dealt with from the inside of her basement, , meaning removed , and enough dirt removed to permit new block to be put in and back filled after the joints are cured and it all can be done with out a backhoe sitting on your property. Do not permit any work to be done from your side of the lot line with out WRITTEN agreement that spells out her obligation to pay for restoration of your property and take pics now of the area so you have photo proof to show what the area looks like Inc your new driveway.

[154NH773]

I believe you have received excellent suggestions from the others. You are under no obligation to allow equipment on your property. I would not allow it unless there is some ironclad guarantee that all damage would be corrected or paid for. I wouldn't simply depend on an agreement, written or otherwise. Have them place money in escrow or be bonded in some way.
There are other ways the job could be accomplished that would not require heavy equipment, but your neighbor has opted for the easiest way. They could hand dig and hand carry the dirt away, but it would be more expensive. That is not a reason to risk your property and expense.
Have you pointed out your observations to your neighbor? Farmer has suggested they address the problem from the basement, and you should make that suggestion to your neighbor.

[jorton56]

Thank you for all of your suggestions and yes, I have tried to point that out to her kindly, pointed out the huge hole where starlings as well as squirrels live. She knows about the water into her window well as she bought a plastic cover for it to stem it. My husband told her the foundation was really in great shape as there are no sags, cracks, bows or otherwise but her 'handy man' got very irate at him, told us we didn't know what we were talking about and to mind our own business even though my husband has built basements since the 1960s for the same reputable company. We have learned from a friend that she really wants to put in daylight windows and is using that as an excuse and that she intends to file something with the court granting her 'emergency access' (?).
I also agree that there are other ways such as a trencher that can take you down at least four feet but yes there would be some wheelbarrow filling to be sure.
There is no talking to either this woman or her handy man, kindly or otherwise. Actually, after this she went on that side of her house and sprayed brush-kill on her grass and waved the wand high when she got to my vine. She was caught by us but she said she "certainly didn't mean to". We know she is trying to kill the vine as well as our other plants so there won't be any excuse for us to not grant her access. Believe me, we are trying hard to save the beautiful vine that is now half dead. Just downright mean.
Sheesh! Sorry for the soap opera and thanks for your help once again.

[drewguy]

All the more reason to get the guarantees suggested above--bonds, photos, etc. Given the circumstances, I would be reluctant to be kind to her, and you might tell her that you can't seem to trust her to do the right thing re restoration given she appear to be trying to kill your plants. FWIW, she'd spend more money getting an "emergency order" than she would in the extra cost from doing things on the inside.

And I suspect the contractor smells a mark here who will pay him lots of money for unnecessary work and so is telling you to butt out because you might get her to think twice about the work.

BTW, I doubt the court would grant an "emergency order". In addition, you could go to court to oppose it, and explain that there's no emergency--she's been asking about access for weeks but has failed to give you any assurances about fixing damage.