How to Stop a Nuisance or Trespass

Posted almost 5 years ago. Applies to Georgia, 2 helpful votes

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1

Determine where the problem is originating.

A nuisance is anything that causes a person annoyance or inconvenience in the use of their property. A trespass is a physical invasion of your property. Often, both will be present where conditions on a nearby property are spilling over to your land in an offensive way. Determine the origin of the problem. Most of the time, the origin will be readily observable. For instance, a detention pond on an adjacent tract that a developer constructed to comply with the local development code may not be working and may be flooding your tract. Or, you may see the chicken coops where the fighting roosters are creating the noise. (Yes; I have dealt with a myriad of different problems, including this one.) Sometimes, the problem originates on a government owned right of way or street. However, in some instances you may not be able to see into the property causing the problem and you may have to proceed to the next step of determining who owns the property in order to obtain access.

2

Determine who owns the property where the problem is originating.

In Georgia where I practice, the person who controls the solution to the nuisance or continuing trespass is the person who is responsible for stopping it. After you have an idea of the origin of the property, determine who owns it. This can be as simple as looking at the name on the mailbox, or talking to other neighbors. If the owner cannot be located this way, look at the city or county tax records, which are publicly available.

3

Call the person you believe is causing the problem.

Initiate a courteous telephone call to the owner. Be polite and try to work with the neighbor. Often, the neighbor will not be aware their property or its use is causing a problem. In fact, the smart property owner will eagerly engage you in trying to solve the problem. Believe it or not, the law does not generally reward rudeness by any party. The initial contact can lay the framework for everything that happens next. Whatever you do, do not concede or admit that you have any blame or responsibility on your part when dealing with anyone. Let an attorney determine your responsibility, which is an issue of law that a lay person generally cannot determine on their own. Of course, there are circumstances where you may have created or added to the problem yourself, but do not be so genial as to admit this until it is clear.

4

Call the engnieering department or code enforcement division for the local government where you are located.

If these previous steps do not work or if the person in control of the solution to the problem is rude or will not address your concerns, call the engineering department for the city or county where you live. Explain your problem to them. If the problem is originating on the public right of way or street, they may be the one that created it. Many times, the condition that is creating the problem will violate some land development code or ordinance. For example, detention ponds are created in order to comply with local, state and federal laws, such as the Clean Water Act of 1972 or the Georgia Water Quality Control Act. The local jurisdiction should have enforcement powers and may step in to assist you.

5

Call the State Department of Natural Resources or Environmental Protection Division or the Federal EPA or U.S. Army Corps of Engineers.

Jurisdiction over many types of nuisances and trespasses may not end with the local government. If the conditions are related to erosion or sedimentation on your site, or if the problem pollutes a nearby stream or river, the state or federal government may have the authority to help you. Call them.

6

Send a written request to the person you believe that is causing the problem.

Once your calls to the neighbor have not worked, go ahead and send a short, one paragraph letter to the neighbor repeating the contact made in person or by telephone. State that the neighbor's use of condition of their property is creating a problem. Ask them politely to help stop the problem. Do not put anything in writing that you may reasonably regret later. For this reason, the written request should be no more than two to five polite sentences and should not admit any responsibility on your part.

7

Call a lawyer that has specific experience in real estate and land use matters.

This step is self explanatory. If everyone did what they should do in our world, we would not need lawyers. Unfortunately, governmental departments do not help solve these types of problems in the majority of cases. You may have your own political perspective to explain this, but whether it is because government environmental compliance divisions are understaffed, or they are bureaucratic and uncaring, they often cannot, or will not, help you. Give it a try though. Also, unfortunately, the person that is in control of the problem may not be as nice or helpful as you thought they should be. They may even retaliate against you. People can be unreasonable. The initial steps are important because they show you are a reasonable person trying to solve your own problems in a neighborly way. Moreover, your case will be better if you have followed them, and by following them, you will help generate a history for your lawyer if you have to proceed to this step.

Additional Resources

Forsyth County, Georgia website

Web site of the Environmental Protection Division (EPD) of the Georgia Department of Natural Resources

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