Author Topic: What's my liability here...  (Read 7378 times)

Spork

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What's my liability here...
« on: January 06, 2015, 08:58:48 AM »
TL;DR

I am wondering what my liability is for my neighbor's kid:  He has started riding his 4 wheeler on part of my property.

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The long version:

I live in the country in an area with mostly 5-10 acre lots and a few bigger plots sprinkled here and there.  My direct next door neighbor is on a very strange plot that looks like it was originally platted as a road.  It is 50ft wide by 1200 ft long -- mostly wooded.  They seem to have acquired a 4 wheeler over Christmas and ... they just don't have much place to ride it.  The result is the kid has started riding across a little area of my property down front.

A few random observations/facts, some of which are conflicting:
* these neighbors inherited grandpa's house (and have let it fall into pretty junky disrepair).  They've already had a property line/fence dispute with the neighbor on the other side.  They don't know where the property line is.
* I have a little bit of the "I was a dumb ass kid once... let them be... it will be fine" attitude.  Right now he doesn't seem to be harming much.  There is just a little dirt thrown around here and there.
* I'm not sure how to say this in a politically correct manner, but...  These neighbors are more than a little rough.  I hear drunken yelling arguments on a regular basis.  The sheriff has visited them a few times, etc.  (And when I say I hear them:  My house is 500 ft away from theirs.)  I have some worry that even "pleasant" confrontation might turn ugly.  I've had friends that started neighbor squabbles over pretty much nothing that eventually made life unpleasant for everyone involved.
* My worries are both him harming himself/others and harming plant life we are trying to start as a screening between us.  The prior worry is a bit exacerbated at the moment as my wife's friend's kid was killed in a 4 wheeler accident just a week ago.
* I do not have an umbrella insurance policy... and probably should have one.
* We've considered building a fence before to hold livestock and have never pursued it -- partly due to cost... partly due to an expectation that it will be a minor legal battle that could possibly lead to bad feelings/conflict.   
* I did say they were rough...  The neighbor they've already had a property dispute with had a large outbuilding burn down due to arson.  He is pretty convinced they did it, but there is no real evidence there.

edit: grammar
« Last Edit: January 06, 2015, 09:27:01 AM by Spork »

Jack

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Re: What's my liability here...
« Reply #1 on: January 06, 2015, 09:24:07 AM »
Q: "What's my liability?"
A: "Ask a lawyer"

That said, I have a gut feeling these sorts of people wouldn't respond well to "gentle suggestions." It sounds to me like you have two choices:
  • ignore it and hope you don't get sued when the kid hurts himself, or
  • full-blown attack: fully fence off your property (probably even including your front yard), post "no trespassing" signs, put up cameras to monitor for violations, get a gun and a big dog, etc.

GoldenStache

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Re: What's my liability here...
« Reply #2 on: January 06, 2015, 09:30:16 AM »
Can you buy them out?  They might be willing to make you a deal to get a nice check that they will quickly blow. 
If not I would get the city/county to come out and mark property lines and build a fence.  They will be heated (maybe get an umbrella policy in case you have any vandalism) but they will quickly destroy any and all plant life with their 4x4.     

I have seen some dumb kids do some dumb things on other peoples land that ended up costing the owners millions, (A drunk 17yo fell backwards off a wall and cracked his skull).   

pzxc

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Re: What's my liability here...
« Reply #3 on: January 06, 2015, 09:36:54 AM »
There's another choice:  Have their parents sign an indemnity agreement that gives their kid permission to ride in your yard but holds you harmless for any and all liability that might occur.

Have an attorney draft it, because there are complications from the fact that the agreement must be with the parents (can't enter into a contract with a minor) but it is the minor's actions/behavior that are being indemnified.

I am not an attorney, so I dunno whether this would really protect you, but having no contract at all definitely doesn't protect you whereas this might.
The alternative is to flat out tell them no, he can't do this, and call the cops with a complaint of trespassing every time you see the kid on your property.
If you tell them he can't do it, but then you look the other way, that's the same as giving permission.

This kind of thing is why I won't let a neighbor kid mow my lawn, even though I did that sort of thing when I was a kid too.  Modern society is much more litigious than when I was a kid. Some kid could "offer" to mow your lawn for a few bucks or even free, and then fall under their own lawnmower, and because it happened on your property, you get sued. Scary stuff.

Greg

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Re: What's my liability here...
« Reply #4 on: January 06, 2015, 09:47:45 AM »
Gas engines just don't run right with a little sugar mixed in.  Also, oil and sand don't mix.

JetsettingWelfareMom

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Re: What's my liability here...
« Reply #5 on: January 06, 2015, 09:51:40 AM »
I agree with the contract not holding you responsible...you have to do this in such a way that you're killing flies with honey not vinegar. Otherwise you'll get dragged down to their level instead of raising them up to yours.
Unless there's something specifically bothering you about the boy driving back there besides the risk of a lawsuit, try to address the specific concerns. I would not just put up a No Trespassing sign because I think it will cause simmering resentment. Find a way to approach this that is win-win--help them build a dirt road, offer to share vegetables from your new garden. I'm just suggesting...you have to be so careful with neighbors if you want peace!

JetsettingWelfareMom

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Re: What's my liability here...
« Reply #6 on: January 06, 2015, 09:58:59 AM »
Gas engines just don't run right with a little sugar mixed in.  Also, oil and sand don't mix.

That's true for all sides here...

GizmoTX

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Re: What's my liability here...
« Reply #7 on: January 06, 2015, 10:02:06 AM »
If you condone trespassing it will eventually be viewed legally as public access. I would not beg the neighbors to sign any hold harmless agreement. They can easily say no & trespass anyway.

Since you were planning it anyway, it's time for a sturdy fence to protect your property rights as well as your liability. Have your property line properly surveyed & documented first.

cynthia1848

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Re: What's my liability here...
« Reply #8 on: January 06, 2015, 10:51:20 AM »
You may need a fence, but I would ask a lawyer first.  Real estate lawyer who also does litigation (not just closings).  You may have to pay a little more.

Depending on your state laws, it may be sufficient to have the lot surveyed and then put POSTED signs, plus umbrella insurance.  You may also need a fence, but you need to do something to indicate the property line. 

I wouldn't mess around with trying to get the neighbors to sign a contract; unlikely to be successful and will probably just make them mad.

Cheddar Stacker

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Re: What's my liability here...
« Reply #9 on: January 06, 2015, 11:37:36 AM »
I would buy an umbrella policy for the duration of their stay, which likely won't be too long by the sounds of it. Anything else sounds like you're asking for trouble.

pzxc

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Re: What's my liability here...
« Reply #10 on: January 06, 2015, 11:52:27 AM »
I would not beg the neighbors to sign any hold harmless agreement.

There's no need to beg. You have all the power here. It's your property. You simply say to them, "I know little Johnny doesn't really have room to ride it on your property, and I'd like to help him out. Would you mind signing this agreement to release me from liability? Then he can have permission to ride on my property whenever he wants."

If they say no, then you say, "That's totally fine - I understand you being reluctant to sign a legal document.  Unfortunately, I have to tell you for the record that your son is not allowed on my property, if he comes on my property with the 4-wheeler it is trespassing and I will call the police immediately.  It's the only sure way to protect my family from liability -- I'm sure you wouldn't put your own family in a position where they are responsible if someone else gets injured."

pzxc

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Re: What's my liability here...
« Reply #11 on: January 06, 2015, 12:29:33 PM »
The police are not reluctant to enforce trespassing laws...  well depends upon what you expect them to do I guess.

Trespassing means being on your property without permission.  So first, you have to tell them to leave. Then when they don't do it, you call the police. The police will then tell them to leave. Usually they leave at this point. If they don't leave, the police absolutely will make them leave and/or arrest them for trespassing.

That is what I expect the police to do, and they are not reluctant to do it. They are very familiar with trespassing laws and how to enforce them.  Notice any businesses with "no loitering" signs?  That's because teenagers like to hang out there for no reason, not buying anything, just because it's a convenient place to hang out.  What happens if the kids don't leave when you ask?  The owner calls the police for trespassing, the police will come make them leave.  That's what they do. Happens all the time.

Now if you were expecting them to do anything more than that, yeah they are reluctant because there's not really much more they can do.  If the person who is trespassing actually leaves when the police show up and repeat the request to leave, they can't arrest them.

What's important is not keeping the kid off your property every second of every day. What is important is having documentation showing that they have been removed repeatedly for trespassing or asked to leave repeatedly.  Then when the kid breaks his leg, you have documentation showing they weren't allowed on your property in the first place, and thus you aren't liable for the medical bills because they were trespassing when the injury occurred.

Also, please don't give lawyers money unnecessarily. If you need a legal document drafted like an indemnification agreement, sure (though I would probably draft it myself, it doesn't have to be drafted by an attorney to be legally binding). If you need to sue someone or go to court, sure. If the lawyer is willing to give you advice for free (some are), sure.  But I certainly would not pay a lawyer to ask about injunction procedures when I hadn't yet taken the first steps of (1) telling them they are not allowed on your property, and (2) repeatedly involving the police when they ignore your instructions so there is documentation to back up the position that their presence is not allowed. I am not a lawyer, but I live in California, and I think if I asked a California attorney about getting an injunction he would say what I've already said, you have to first establish that something is occurring in violation of your rights and the offender is repeatedly showing disregard of your attempts to enforce your rights.

Or, you know, you could just put up a fence.
« Last Edit: January 06, 2015, 12:31:51 PM by pzxc »

Paul der Krake

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Re: What's my liability here...
« Reply #12 on: January 06, 2015, 12:39:14 PM »
I would not beg the neighbors to sign any hold harmless agreement.

There's no need to beg. You have all the power here. It's your property. You simply say to them, "I know little Johnny doesn't really have room to ride it on your property, and I'd like to help him out. Would you mind signing this agreement to release me from liability? Then he can have permission to ride on my property whenever he wants."

If they say no, then you say, "That's totally fine - I understand you being reluctant to sign a legal document.  Unfortunately, I have to tell you for the record that your son is not allowed on my property, if he comes on my property with the 4-wheeler it is trespassing and I will call the police immediately.  It's the only sure way to protect my family from liability -- I'm sure you wouldn't put your own family in a position where they are responsible if someone else gets injured."
Unfortunately, people who routinely fight strongly enough to warrant law enforcement visits are hardly the rational kind, and usually know how to make life very unpleasant for very little. Steering well clear of any behavior they may interpret as provocation (by their standards, not ours) is best.

pzxc

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Re: What's my liability here...
« Reply #13 on: January 06, 2015, 01:18:10 PM »
If they are not rational, then they are not predictable.  They may interpret asking them to sign a liability waiver as provocation, true.  However, they almost might interpret building a fence as provocation.  They may interpret ANYTHING other than "letting little Johnny ride his 4wheeler wherever he wants to" as provocation.

Given that they might interpret any action other than acquiescence as provocation, and given that you cannot predict their interpretation, and given that acquiescence is not acceptable (because it makes you liable if Johnny does something stupid and causes property damage or even personal injury to himself or others)...  I think the best course of action is to do what is necessary to protect your family and your assets.  Their interpretation of it be damned.

Are you actually advocating giving into them because they are irrational?  I assume I must be misunderstanding you.

EDIT:  Perhaps you just mean that you should not call the police to eject them from your property until after you have politely asked them to stay off your property. In that, I agree wholeheartedly. Definitely ask them before involving the police.
« Last Edit: January 06, 2015, 01:19:44 PM by pzxc »

Paul der Krake

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Re: What's my liability here...
« Reply #14 on: January 06, 2015, 01:34:37 PM »
OP has no easy way out of this. What I am trying to say is that he's going to have to tiptoe around the issue and be extremely careful if he decides to talk to them. Or be extremely careful if he decides to not talk to them and build a fence.

Either way, it sucks.

marty998

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Re: What's my liability here...
« Reply #15 on: January 06, 2015, 02:01:41 PM »
Is there really no concept of personal responsibility anymore?

That if you are an idiot who goes skylarking you can sue the person who you are trespassing against?

Only a lawyer could dream that up.

(I get some of the reasons for it, but really it has gone too far. Our local councils get around this law by putting up hundreds of signs saying "do not _______". If there's a sign, you can't sue. If not you could try your luck only if a "reasonable person" would expect there to be a warning).


Weedy Acres

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Re: What's my liability here...
« Reply #16 on: January 06, 2015, 02:10:59 PM »
You could try using your insurance company as an excuse to get them to sign a waiver of liability.  "I'm fine letting little Johnny ride his 4-wheeler on our lot, since yours is kind-of narrow, but my insurance company told me my rates would go up if I do.  There are 2 ways to keep my rates low: either you guys sign a waiver saying you won't hold me liable if he gets hurt, or I build a fence.  Which would you prefer?"

Capsu78

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Re: What's my liability here...
« Reply #17 on: January 06, 2015, 02:48:12 PM »
Weedy has a good script here:

"I'm fine letting little Johnny ride his 4-wheeler on our lot, since yours is kind-of narrow, but my insurance company told me my rates would go up if I do.  There are 2 ways to keep my rates low: either you guys sign a waiver saying you won't hold me liable if he gets hurt, or I build a fence.  Which would you prefer?"

I had MetLife send me a "notification of cancellation" of my homeowners policy when they spotted my daughters trampoline in the back yard.  I was shocked that they didn't even ask me to remedy the situation, or even buy a more expensive product.  They just flat out cancelled me with no follow up.

FYI-When I was a young knucklehead, the local farmer who didn't like us mini bikers used rocksalt in a shotgun shell to ward off the little buggers- but that is considered a little too Old School nowadays! 
« Last Edit: January 06, 2015, 02:49:48 PM by Capsu78 »

Roland of Gilead

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Re: What's my liability here...
« Reply #18 on: January 06, 2015, 03:35:49 PM »
The permanent solution would be a fence.

Another cheap solution would be to set up a sign saying "Caution, I accidentally spilled roofing nails all along my property border"  After all four of little Johnny's tires are flat, he will likely ride somewhere else.
« Last Edit: January 06, 2015, 03:38:25 PM by Roland of Gilead »

CDP45

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Re: What's my liability here...
« Reply #19 on: January 06, 2015, 11:45:28 PM »
At least get umbrella policy, it's like $200/yr, think of it as insurance against lawyers costs, you need a fence too.

MikeBear

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Re: What's my liability here...
« Reply #20 on: January 07, 2015, 12:00:52 AM »
If it's a Chinese ATV, it'll likely be broken in a couple more weeks, and your problem will then be solved.

DoubleDown

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Re: What's my liability here...
« Reply #21 on: January 07, 2015, 11:35:47 AM »
I would not say anything to the neighbors. The likelihood of a bad outcome is far greater than the chance there will be an accident. Since you're not being negligent or creating a dangerous situation on your property, you face no reasonable risk of liability. Someone trespassing on your property that hurts themselves in a dangerous activity, through no fault of your own, is not going to find a sympathetic jury -- and that's even if these people had a mind to sue you in such an event. You could just claim ignorance that he was even on your property -- after all, that property line is far away from your house and you aren't certain of its exact location anyway (you would say).

Homeowners really only have to be worried about liability if they are creating dangerous conditions that a  person entering onto the property could not have reasonably anticipated. So, if the gas meter reader comes onto the property (legal for them to do) and gets attacked by your vicious dog, they likely have a claim -- that's negligence and no one should expect getting mauled by a dog just by walking on the lawn. If someone slips on the ice on your front steps they may have a claim if you had ample opportunity to clear it up and failed to do so, and had good reason to know it was there and was dangerous (e.g., the mail man slipped on it just yesterday and you still didn't resolve it). Someone getting in an accident on an ATV (a dangerous activity) on some rural land that is not laced with barbed wire or other unreasonable dangers created by you would almost certainly not be a liability for you, the homeowner, any more than a drunk driver could successfully sue you for your house hurting you when they smashed into it.

If you don't like the trespassing or are worried about the kid coming on your property (both reasonable concerns), I'd put up a few "No Trespassing" signs around the property. Spread them around all sides, in plain view, so the neighbors don't think you're targeting the signs just at them. If they ever said anything to you about the signs, you could just make up a story that you put them up because you noticed someone loitering around your property on the other side (i.e., not the ATV-riding neighbor side), plus you're thinking of doing some planting soon and wanted to ensure the grounds wouldn't be screwed up while you're getting ready.

LadyStache

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Re: What's my liability here...
« Reply #22 on: January 07, 2015, 12:05:29 PM »
* We've considered building a fence before to hold livestock and have never pursued it -- partly due to cost... partly due to an expectation that it will be a minor legal battle that could possibly lead to bad feelings/conflict.   

Go through with the fence/livestock idea since it's something you had considered anyway. If they say anything to you about putting up the fence, you have the excuse that you need it to contain the livestock. Have a surveyor come in to ensure you don't cross over the property line. If they squabble with you over the property line, explain that you had a surveyor come in to determine the line because you didn't want to overstep the boundary. If the dispute is over a small amount of land that is insignificant to you, offer to sell it to them for a small amount (~$1) -- it's cheaper than dealing with arson or being liable for trespassing.

Spork

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Re: What's my liability here...
« Reply #23 on: January 07, 2015, 03:47:37 PM »

Thanks for all the suggestions...   
I've been chatting with the reasonable neighbor on the other side... and it seems like a buyout might actually be possible -- especially if we pool our resources.   He seems equally unhappy with them (probably more so, as his house is much closer to them than mine.) 

jba302

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Re: What's my liability here...
« Reply #24 on: January 07, 2015, 04:15:45 PM »
The general rule is that you are not liable for harm that befalls trespassers to your property, but there are many exceptions depending on the jurisdiction. Two of the most common exceptions that could be relevant to you are the following:

- If you are aware people commonly trespass on your property in a particular way and you do nothing to stop it, you may be liable if somebody is later hurt while trespassing in that way.

- If the trespasser is a child (you say it's a "kid") and there is something about your property that is attractive to children such that they couldn't be expected to realise trespassing is wrong, you may be liable if something happens to the child while trespassing on your property.


I agree that if you are concerned you should seek advice from local counsel, but also, you should take steps to make it explicit that you do not approve of the trespassing.

This is all sorts of true, and add "booby trapping" to another condition (which does happen!). Putting up no trespassing signs is sufficient in most jurisdictions to cover the first one. The second one... i dunno, i've never heard a convincing argument how to prevent against this.

GoldenStache

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Re: What's my liability here...
« Reply #25 on: January 08, 2015, 06:15:41 AM »
@Spork - If you do buy them out and burn it down please post a picture. :)

Rural

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Re: What's my liability here...
« Reply #26 on: January 08, 2015, 06:58:17 AM »
While you're working on the buyout, you might also talk to the sheriff or a deputy (or other relevant officer if you're in a municipal jurisdiction). They don't provide legal advice, of course, but they do often have good practical advice in situations like this. Plus it makes the local law enforcement aware that there's a potential situation, unofficially.


Oh, and pay attention to whether the taxes get paid.


Good luck. As I may have mentioned, we have (had?) a very similar set of neighbors, right down to grandad owning the place. Currently, our version is abandoned - most of the prior occupants are doing prison stints (meth lab), and with luck, the roofs will finish caving in before they get back.