Which lawyer to choose for a neighborhood problem?
Between the neighbors who vacuum at 7 a.m. on Sunday mornings, those whose dog barks all day and the hard rock drummer on the third floor… War seems to have been declared! If disputes between neighbors can often be settled with a few compromises, some have a tougher skin than others. So to avoid ruining your life, find out which lawyer to choose for a neighborhood problem.
Other neighborhood problems that may arise. How can a lawyer intervene in neighborhood problems? Which lawyer to choose?
Neighborhood disturbances cover very diverse situations. Some examples and the effects to be expected from a legal action.
What is a neighborhood disturbance in the legal sense of the term?
To be constituted, the person who is the victim of a neighborhood disturbance must prove excessive harm or an abnormal disturbance.
It is the judges who assess the abnormality or the excessive character, so it is case by case. They look, for example, at whether the disturbance is persistent, repetitive or regular. In short, if it goes beyond the ordinary measure of neighborhood relations and the obligations of living together. Some examples of neighbourhood disturbances identified by case law:
– Disturbing odours: manure, decomposing waste in the garden, etc.
– Continuous noise: music, drills, firecrackers, animals, etc.
– Loss of sunlight: thick and cumbersome vegetation, etc.
– Aesthetic nuisance: dumping of garbage, scrap metal, etc.
To remember: the 2 necessary elements:
– The repetitive and lasting nature of the disturbance– The intensity of the disorder
More simply, the disturbance can also result from the non-respect of a legal or regulatory obligation.
For example, a neighbor who decides to open a restaurant in his apartment in a co-ownership for exclusive residential use does not respect the co-ownership rules. Or a neighbor who plays loud music after 10 p.m. at night. This person could be fined for nightly disturbance because it is prohibited by law. Contact the police so that they can come and note the infraction and write the ticket.
Theliability action The troublemaker must be your neighbor, regardless of whether he is a tenant or owner. It is against him that your neighborhood problem lawyer will act on the basis of neighborhood disturbances.
Liability can be waived in a special case called the “theory of concern”. To be able to get rid of its liability, the activity causing the disturbance must be characterized by 4 elements:
– It is a commercial, industrial, craft, aeronautical, etc.
– It must comply with the law or regulations
– Prior to the installation of the applicant in the premises
– Example: this is typically the case for people living next to an airport, a pig farm, etc. The facility in question was there when they bought and the nuisance was known. As long as they don’t get worse, there is nothing they can do about it!
What are the penalties for liability for neighborhood disturbance?
The troublemaker may be ordered to repair the disturbance caused (damages). The penalty mainly involves the obligation to stop the disturbance.
Other neighborhood problems that may arise
Many disputes can arise between neighbors. This is particularly the case because the right of ownership is an absolute, exclusive and perpetual right.
– The right of ownership
The right of ownership thus gives the owner the right to enjoy his thing, to use and abuse it as he wishes. The owner is also protected against attacks on his property by third parties.
In theory, although the owner can do as he pleases with his property (use it, earn income from it, sell it, etc.), not everything is so simple. The right of ownership also has its limits. And the first of these is the freedom of others to enjoy their own property rights.
Some concrete examples of other neighbourhood problems
An easement is an accessory to the right of ownership. In most cases, it is a right of way that is granted to us on our property or that of another person. For example, it is the case of the owner who cannot access his land without passing through that of another. He cannot therefore fully exercise his right of ownership. In order for this to be possible, he has the right to obtain “an easement”, in other words a passageway on another’s land to access his property, which you cannot refuse him.
– Abuse of right
The abuse of right aims to prevent all acts whose purpose is to harm another person. It was made famous by the Clément Bayard decision (1915): a landowner had erected fences with steel spikes to pierce the airships coming out of his neighbor’s hangar… This was an act of no interest whatsoever for him, which was just intended to harm his neighbor. He was condemned on the basis of the abuse of right, a legal concept a bit of a catch-all that allows to sanction harmful behaviors.
The encroachment consists in overflowing on the neighbor’s land, for example by carrying out works which bite the delimitation of the bottom of the neighbor’s land. The jurisprudence has moreover decreed a heavy sanction for the encroachment recognized by the courts: it will be necessary to destroy the incriminated work, even if this one exceeds by only a few centimeters!
– Joint ownership
A source of recurrent conflict, joint ownership consists in owning two contiguous elements, such as a wall. The law thus requires the joint owners to make joint repairs. For example, if the wall in question is in danger of falling into disrepair, you must act together. You can force your neighbor to pay if he does not want to.
How can a neighbourhood lawyer help?
A neighbourhood lawyer will be able to guide you on the right way to act in a neighbourhood dispute. Since these are often small disputes with minor financial implications, a lawyer can help you resolve the problem between you and your neighbor without having to go to court. Your lawyer can advise you on your rights. He or she can tell you if you are at fault or if it is your neighbor who is not following the law. Thus, the lawyer can intervene to enlighten you on the different solutions to the neighborhood problem that are available to you.Did you know? 1 Canadian out of 2 has already been confronted with a neighborhood disturbance according to the AXA legal protection barometer. Approximately 65% of disputes are settled out of court.
From amicable settlement to legal proceedings
Once you know your rights, you can take action in 3 steps.
– Contact your neighbor: The first thing to do is to warn your neighbor that he is not respecting the law. He may not even be aware of it! You can already take action by sending him a registered letter with return receipt or by going directly to his house to inform him. You can also contact the syndic if you are in a condominium or the landlord if it is a rental. If this is not enough, a letter from a lawyer could perhaps encourage him to be more discreet..
– Call on a legal conciliator: The second thing to do is to consider that neighbourhood problems are the best place to settle disputes amicably. You can therefore attempt a free conciliation by making a request by letter to the court. You will meet with your neighbor to try to find a solution with the help ofa conciliator of justice. You can come alone even if it is obviously better if both parties are present because there is a better chance to settle the dispute..
– Go to the court of first instance: Finally, if the dispute gets worse and neither party wants to give up, you may have to resort to a more serious solution. You can go before the district court. However, you should know that it is better to avoid the procedure which can last a long time and be costly for little result and financial stakes, if not a deterioration of the relations with your neighbor..
Which lawyer to choose ?
For a neighborhood problem, you should first choose a lawyer specialized in civil law or property law, real estate law or in co-ownership law. Droit Justice can put you in touch with such a professional if you do not know one. Even if these disputes are rather frequent and without great legal difficulty, it is better to choose a specialized lawyer who will surely know the most effective solutions to your problem as well as the regulations in force in this style of litigation.
A lawyer specialized in real estate law will charge around $200 per hour. This rate varies according to several factors but it is generally the price to pay to obtain an initial legal consultation on your problem and then to advise on what to do.
In short, if your peaceful demands remain without effect, do not hesitate to meet with a lawyer who can advise you on how to resolve your neighborhood problems as quickly as possible and regain some peace of mind!