February 28, 2017
Little Love Lost in Sedimental Affair
A lawsuit for damage to property must be timely filed to prevail in court. In Virginia, the statute of limitations for property damage is five years from accrual of the claim. When an owner suffers damage caused by a neighboring owner, when does this five year time-period start running towards its expiration date? Does the clock start ticking at the time the trespass or nuisance began or some other moment? On February 16, 2017, the Supreme Court of Virginia issued a new decision finding that when the effect of the offending structure is continuous, the claim accrues when damage began. The distinction between “temporary” and “continuous” is potentially confusing and the stakes are high in real property damage cases. Understanding how Virginia courts apply these rules is essential whenever owners and their attorneys discover what is happening.
Forest Lakes Community Ass’n v. United Land Corp. of America involved property that I have driven by numerous times. I grew up in Orange and Culpeper Counties in Virginia. My family would drive down Route 29 to shop or attend sporting events in Charlottesville. The Charlottesville area prides itself as the home of President Thomas Jefferson and the University of Virginia. Along Route 29 is Hollymead, an artificial lake built from a sediment basin. A sediment basin removes silt or other particles from muddied waterways. Two HOAs, Forest Lake Community Association, Inc. and Hollymead Citizens Association, Inc. jointly own Lake Hollymead.
The defendants included United Land Corp. and other owners and builders of the Hollymead Town Center (“HTC”) upstream from the Plaintiff HOAs’ lake. In 2003-2004, defendant developers constructed three new settlement basins along Powell Creek, the tributary to Lake Hollymead. Owners in the HOAs complained about excessive influx of sediment from the HTC construction into Lake Hollymead. If I bought a home with lake views, I wouldn’t like looking at muddied waters either. The HOAs complained that the defendants caused excessive sedimentation by improperly removing vegetation within the Powell Creek watershed.
If this was a serious problem, how did it get through the county’s permitting process? According to the case opinion, the development complied with state and local regulations regarding retainage of sediment within the three new basins. The county rejected suggestions from downstream owners that upgraded sediment filtration systems be required of HTC. The case doesn’t discuss whether the county’s standards did, or should set a benchmark for the reasonableness of the defendants’ control of sediment. Owners may have a right to sue even when the city or county refuses to intervene in a property damage dispute.
Discussions continued within these HOAs for years. In 2011 they finally filed suit, alleging nuisance and trespass. The HOAs asked for the court to award them money damages and an injunction requiring the defendants to stop the excessive drain of sediment. The HOAs enjoyed standing because they jointly owned Lake Hollymead as a common area. Incursion of sediment into Lake Hollymead began during HTC’s construction. The HOAs argued that intermittent storms caused subsequent separate and distinct sediment incursions, each triggering new causes of action that restarted the five year statute of limitation. This was contradicted by the HOAs’ expert who acknowledged that at least a little sediment incurred continuously. The HOAs also argued that the defendants’ sediment currently sits in Lake Hollymead and will continue to trespass until someone digs it out.
When a case comes to a lawyer for the first time, her initial assessment considers statutes of limitation. Legal claims have a corresponding statute of limitation setting a deadline by which the claim must be brought. Even if the claim is one day late it can be dismissed as time-barred. The HTC defendants sought to have the HOAs’ claims dismissed because they waited over five years after the sediment problem began in the 2003-2004 timeframe. After a day of testimony, Judge Paul M. Peatross found that the statute of limitations barred the claims because they accrued in 2003 and sediment incurred continuously thereafter.
The HOAs sought review by the Supreme Court of Virginia. Their appeal focused on Judge Peatross’ ruling that the claim was barred by the five-year statute of limitation because the continuous damage accrued at construction.
Justice D. Arthur Kelsey explained in the opinion that under Virginia law, a claim for an injury to property accrues when the first measurable damage occurs. Subsequent, compounding or aggravating damage attributable to the original problem does not restart a new limitations period. The court acknowledged that plaintiffs might need to seek a claim for an award for past, present and future damages. This accrual principle applies where the permanent structure causing the injury could be expected to continue indefinitely. I find this confusing, because drainage systems and sediment basins have lifespans. After a number of years, they fail or require repairs. Anything that comes into contact with water is under tremendous pressure. Perhaps what the court means is that the structure causing the injury is “permanent” if it would continue to cause the damage if maintained to continue to function as it did originally. This concept of “permanent structure” implies that its owner will maintain the nuisancing or trespassing feature as it presently exists.
Alternatively, in the facts of a case, a later cause of action might accrue that looks and acts like the earlier one but is a “stand alone” claim that starts a new five year limitations period. This can happen where the structure causes separate, temporary property damage. For example, some dams can be opened or closed. This exception can apply even when the physical structure causing the damage is a permanent fixture.
Justice Kelsey acknowledged the challenges applying these principles to particular cases:
Though easy to restate, these concepts defy any attempts at formulatic applications. Because the underlying issue – determining the boundaries of a cause of action – depends to heaving on the factual context of each case, our jurisprudence has tailored these principles to analogous fact patterns and rights of action.
To resolve these issues, the Supreme Court relied upon the factual finding of the Circuit Court that the three HTC sediment basins discharged into Lake Hollymead on a continuous basis and that the five year statute was not revived by a later, discrete discharge episode.
Ordinarily, on these motions to dismiss a lawsuit, the courts tend to give plaintiffs a benefit of the doubt. Often judges will look to see if the facts are contested so as to warrant a trial. Here, Judge Peatross took a day’s worth of testimony in a pretrial hearing. The HOAs may have appealed on the hope that the Circuit Court short-circuited the case too early and the Supreme Court would rule that they deserved another chance to have their case heard on its merits. This case may embolden more defendants to put on expert testimony in support of a plea of a statute of limitations in the hopes that their cases could be brought to a quick end.
The easiest way to avoid these kinds of statute of limitation problems is to file suit early enough so that either way the court looks at it, it would be deemed timely. Plaintiffs and their lawyers should file early to avoid the necessity of having to litigate such issues in day long evidentiary hearings and on appeal.
Case Citation:
October 26, 2015
Are Dinosaurs a Nuisance or Merely Provocative?
My 4-year-old nephew loves dinosaurs. His favorite is the Triceratops. Before my sister gave birth to her second son, their family discussed names for the new baby. My nephew wanted to name his little brother “Brachiosaurus.” Needless to say, his parents outvoted him on that! He would love to live in the New Territory Residential Community Association in Fort Bend, Texas.In New Territory, Nancy Hentschel pastured two large dinosaur sculptures in her front yard. The Tyrannosaurus Rex and Velociraptor caught the attention of her neighbors and news organizations. The response was overwhelmingly positive. Hentschel reported that, “I’ve never had so many people knock on my door, say hello, tell me they love the dinosaurs, and as if they can take pictures.” The “dino duo” received hundreds of likes on social media. Her HOA sent a disapproving notice stating that she violated the rules by erecting an unauthorized “addition” to her home. Are dinosaurs a nuisance? Hentschel admitted that she knew that the HOA would object to the statues when she bought them. “This is a form of art but it is also a form of protest.” In a September 12, 2015 interview with Shu Bartholomew on the radio show, “On the Commons,” Hentschel described an earlier dispute she had with her Board of Directors. The HOA’s leadership cited her for having a 
crack on the surface of her own driveway. The board members went so far as to come to her property and get down on their hands and knees to measure the crack for purposes of issuing the violation. Hentschel protests the use of HOA authority to create fear in her community. In her interview, she remarked about how it’s not conformity and uniformity that create property values or a sense of community.
My wife and I have cracks in our own driveway. They were there when we purchased the property. They didn’t factor much in our decision to buy the house. I’m sure that other prospective purchasers didn’t care much about the driveway cracks either. Sometimes I think that I’m the only person who ever notices them. Although we live on a busy street, I’ve never had a neighbor or visitor complain about them. When I applied crack filler a year ago, the compound cracked when it dried. Once a concrete or asphalt surface has cracks, winter ice can freeze in it, causing the surface to progressively deteriorate. As someone who drives into the District of Columbia regularly, I am stridently anti-pothole in my political outlook. Somehow, I suspect that the motivation of Ms. Hentchel’s board was not a paternalistic effort to save her family from future potholes in her driveway.
Hentschel is not the first homeowner to violate a HOA rule in intentional protest or knowing indifference to HOA rules. Sometimes homeowners deliberately paint their house in an unsanctioned color. Others erect American flags or religious symbols in attempts to exercise freedom of speech. Hentschel’s dinosaur display is different. Her “civil disobedience” is not manifested in mundane details like trash can storage or serious concerns about expression of core personal commitments. Instead, she her display is humorous and fun.
When I first heard about the Texas Dinosaur controversy, it reminded me of Dinosaur Land here in Virginia. The Shenandoah Valley is a tourism hot-spot. Dinosaur Land is a roadside attraction near Winchester, Virginia. For around $5 a person, tourists can tour a private park with dozens of large dinosaur statues. It’s been in business for decades (statues are easier to care for than live creatures). You can imagine the kid appeal. After a day of following one’s parents around civil war battlefields and nature sites, the novelty of dinosaurs is irresistible. People are willing to pay to take their children to see this, at least once. In Texas, Ms. Hentschel has created a small-scale Dinosaur Land in her front yard. She isn’t charging anyone any fees. In fact, as of September 12th she had a waiting list of neighbors who want to borrow the dinosaurs to graze on their own lawns. She only asks them to make a $50.00 donation to a charity of their choice. In my opinion, by keeping the dinosaur statues as livestock, Nancy Hentschel made her community more desirable, at least for now. This makes her dispute with her HOA interesting from a property rights perspective. What she’s doing looks like a lot of fun, although she must be prepared to pay the price if her HOA decides that they don’t care about public perceptions and decides to go full force in litigation. That’s something one has to be ready for when breaking the rules to prove a point. Don’t try this at home, kids.
Hentschel’s dinosaurs are a fun twist on the “spite fence” phenomenon. Periodically neighbors end up in litigation because one or both of them set up a fence or other structure for the purpose of harassing, intimidating or displeasing their neighbor. In 2007, one of these went up to the Supreme Court of Virginia. Thomas and Teresa Cline lived in Augusta, a rural county in Virginia. The Clines had a history of disagreements with their neighbor Roy Berg. Berg decided to construct an 11 foot tall tripod with motion sensors and floodlights pointing at the Clines’ windows. To make things even creepier, Berg installed surveillance cameras to watch the Clines on his television. After Berg refused to take down the floodlights and cameras, the Clines constructed a 32 foot high fence made of 20 utility poles. They attached plastic sheeting to the poles to block the intrusive lights and cameras. Berg sued the Clines, alleging that the fence was a nuisance to the community. The Clines asserted an “unclean hands” defense. They argued that the surveillance and floodlight apparatus disqualified Berg from asserting the nuisance claim. The county court found in favor of Berg and ordered the Clines to remove the fence because it was an eyesore. The Supreme Court of Virginia reversed, finding that the judge should have applied the doctrine of “unclean hands” to dismiss Berg’s suit. Cline v. Berg illustrates the difficulties inherent in these intractable neighbor disputes. In efforts to get it right, Courts can struggle with the question of who to punish and how. If Berg’s case is dismissed, then both of the spite structures would remain. No problems are solved. If the Court orders the Clines to remove the fence, then they are punished for their “eye for an eye, tooth for tooth” reaction. However, the lights and cameras would remain a problem.
Contrast the structures in Cline v. Berg with Ms. Hentschel’s dinosaur display. Kids love walking past dinosaurs and taking selfies in front of them. They distinguish Hentschel’s property. In the Cline case, the tripod and fence served no beneficial purpose outside of the neighbor conflict. In one case, there is fun and an increased sense of community, and in the other a scorched earth war. They are two ways to blowing off steam, with different effects on the community.
Property owners finding themselves in a dispute with a neighbor or community association, where rational discourse isn’t working may struggle with what to do next. Do I continue to suffer the indignity without complaint? Lash out by erecting a fence or other structure that serves no positive value? Bring a lawsuit? In a continuing education course I once attended, an experienced attorney explained that when these kinds of disputes arise, he asks the client if they have considered erecting a reasonable fence along the boundary of the property, as shown by the surveyor. Fences and walls define relationship boundaries in a physical way. When someone erects a fence, if their neighbor doesn’t like it, the burden is on them to bring suit requesting that the fence come down. Ms. Hentschel’s dinosaurs illustrate yet another alternative. I don’t know whether the dinosaurs violate her HOA covenants or not. If she broke the rules, at least she did it with something of popular value. In Virginia and other states, courts construe HOA covenants according to contract law. Where little damages are provable, potential court remedies may be limited. The outcome of particular cases will vary according to the facts and circumstances. If your neighbor or community association are interfering with your rights to use your own property, don’t give them the pleasure of responding to the provocation with an attack, escalating the conflict in a risky way. Contact qualified legal counsel to explore alternatives to protecting your rights. In many cases, review of a land records search and updated boundary survey may reveal overlooked possibilities for a favorable solution.
For More Information:
Cline v. Berg, 273 Va. 142 (2007)
September 12, 2015 Podcast, On the Commons
Barot, “HOA, Homeowner at Odds over Dinosaur Display,” Fort Bend Star, Sept. 17, 2015
Photo Credit (Dinosaur Land Photo):
