My Property Is Sinking: What do I do?
If your property is sinking or threatened by nearby land movement, this article is for you. Soil subsidence and landslides are devastating and often times not covered by homeowners insurance. Thus, if you are damaged by soil subsidence or landslide, you may be facing significant personal and financial loss. Time is of the essence! This article will walk you through what you need to do if you are dealing with a soil subsidence or landslide problem.
You need to recognize the signs of soil subsidence or landslide movement. The most obvious signs of soil subsidence or landslide movement are a sinking or tilting of your property. However, there are often times early and subtle warning signs, such as a sudden progression of concrete cracks, stucco cracks, or drywall cracks.
If you suspect soil movement, you need to contact a qualified soil engineer or contractor right away. A good source to find a qualified professional is to simply perform a Google search for "soil engineer" or "soil contractor" in your area. A manometer survey is fairly inexpensive and will show whether your home is sinking or tilting. A manometer survey coupled with a visual inspection should enable a soil professional to advise you on whether you have an immediate problem.
The next step is to contact a qualified attorney. Many attorneys practicing in construction defect and soil subsidence law will provide you with a free consultation. The involvement of an attorney at the onset of the problem is crucial for several reasons: 1) preservation of evidence, 2) coordination of qualified soil experts, 3) dealing with your insurance company, and 4) determining whether someone's negligence caused your loss (overwatering, pipe break, pool leak, improper excavation, etc.). The preservation of evidence factor is most important. Often times, soil movement and landslides are caused by water. The presence of water must be investigated immediately. The source and quantity of water should be determined right away. Depending on how porous the soil is, this water evidence could disappear within hours or days. You must act quickly or you may find yourself unable to prove a case against the responsible party in Court, due to lack of evidence.
The next step is to determine who caused your loss. If it is a government (City, County, State,) construction project or pipe leak that is the suspected cause, you will need to file a claim with the appropriate governmental entity. Failure to file a claim, may result in a waiver of important legal claims, such as negligence or nuisance. Depending on the type of injury, a claim may need to be filed within as little as 6 months from the date of loss. Failure to timely file the claim, may result in a waiver of your claim altogether.
If the soil movement or landslide is caused by the inferior construction of your developer or general contractor, there is another route that must be pursued. For newer homes, Senate Bill 800 requires the developer or general contractor to be given a chance to investigate and repair. This is a tricky process that involves filing a claim, allowing the developer or contractor to investigate, propose a repair plan, and mediation (settlement negotiation process). If this fails to resolve the matter, it will proceed to arbitration or trial, depending on whether your purchase contract has an arbitration clause.
If the soil movement or landslide is caused by a neighboring property owners negligence, this may trigger an entirely different set of laws, such as Civil Code 832. Civil Code 832 states that neighboring property owners owe one another lateral and subjacent land support. Civil Code 832 requires neighboring property owners to take great care not to undermine one anothers lateral and subjacent support. A comprehensive analysis will be required to determine whether one neighbor did in fact cause the soil subsidence or landslide loss and violate Civil Code 832.
A landslide or soil subsidence loss is typically deemed a "complex" case by most Courts. As a result, it will move slower through the Court calendar. A typical landslide or soil subsidence case may take up to 3 years to complete at the trial Court level.
Due to the fact that the process will take a while before a resolution is reached, you should give some serious thought to alternative living arrangements if your house is uninhabitable or dangerous to live in. Also, you should consider negotiations with your bank to freeze the loan payments while the lawsuit or claim is pending against the party responsible for your loss. An attorney should be capable of handling the loan freeze for you or making some other suitable accommodation with your bank.
If you suspect your property is being damaged or threatened by soil subsidence or landslide, do not hesitate to take action. As you can see, there are a lot of issues that will require your prompt attention and consideration. I hope this helps shed some light on a difficult situation.
ABOUT THE AUTHOR: Robert A. Von Esch IV
Rob comes from a long line of attorneys. In total, there are eight attorneys in his family. To say the least, he was born to be a lawyer. Rob thoroughly enjoys helping people, which is why he is an attorney.
Rob has tried numerous cases in most jurisdictions throughout Southern California. He has obtained several multi-million dollar awards for his clients and argued successfully before the California Court of Appeals.
He is a trial attorney at heart. However, Rob recognizes that Court is not always the best place for his clients. Rob's firm but, fair approach to litigation often opens the door for favorable settlement negotiations.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.