Neighbor Disputes Are Nothing New
Neighbors don’t always get along for a variety of reasons, including noise, exchange of debris of various kinds, noxious odors wafting across property lines, obstruction of views, damage to trees, altering water flow, encroachment onto the neighbors’ property and outright use of neighbors’ property. Some disputes, if not resolved, can quickly escalate to violence and/or litigation. So what steps can be taken to prevent such disputes from escalating to the historic proportions of the Hatfields versus the McCoys?
Some homeowners’ associations (“HOA”) have dispute resolution procedures, but most only enforce their own Bylaws, Covenants, Conditions and Restrictions (“CC&Rs”) and Rules for the benefit of the HOA and refer neighbor disputes to civil courts. The Arizona Department of Fire, Building and Life Safety has dispute resolution processes for disputes between homeowners and their HOA and mobile home residents and their landlords, but not between neighbors themselves.
If the McCoys believe that the Hatfields repeatedly throw nasty debris into the McCoys’ yard, blare their radio late at night and shine bright lights into the McCoys’ windows, rather than retaliating by such actions as blocking the Hatfield’s driveway and cutting down their trees, the McCoys can seek an injunction against harassment. The protective order forms can be obtained online from the Arizona Supreme Court website: https://www.azcourts.gov/domesticviolencelaw/Protective-Order-Forms
In Tucson, the plaintiff has the choice to file in Tucson City Court or Pima County Superior Court.
The injunction against harassment complaint requires at least two instances of acts that are not protected by law. While the McCoys may think the Hatfields harassed them by calling the police about loud music, the act of calling the police for assistance is not an act of harassment. Neither is filing a complaint with the HOA or the Hatfields filing for an injunction against harassment against the McCoys. All those are lawful activities for personal protection.
So the McCoys complete the injunction against harassment complaint and go before the judge, requesting their injunction be issued without notice to the Hatfields. They can do this themselves or with counsel. For purposes of the injunction, “harassment” means a series of acts over any period of time that is directed at a specific person and that would cause a reasonable person to be seriously alarmed, annoyed or harassed and the conduct, in fact, seriously alarms, annoys or harasses the person and serves no legitimate purpose. ARS §12-1809(s). The judge should verify that there are allegations of at least two acts of harassment by an individual before issuing the injunction, usually directing the Hatfields to stay at least 100 yards away from the McCoys (other than being on their own property) and cease the harassment. Depending on the extent of the harassment, the judge can order the Hatfields not to possess firearms or ammunition and to take domestic violence counseling – all without notice and a hearing! Then the McCoys take that, along with some physical description to the sheriff or process server to serve the injunction on the Hatfields.
When the Hatfields get served with the injunction, they have up to a year to request a hearing to set aside or modify the injunction and a hearing must be scheduled for them within ten days. At the hearing, the McCoys have the burden of proving that the Hatfields harassed them and that the extent of the injunction is necessary or else the injunction will be quashed (terminated). What frequently happens in these cases is that neighbors seek injunctions against each other. These are treated as two separate actions and heard separately by the court, often by different judges.
If the McCoys do resort to cutting down the Hatfields’ trees, damage their driveway or other property destruction and threats of violence, then it becomes a criminal matter, for which the Hatfields should call the police. In addition, the Hatfields can file a civil lawsuit for assault, battery and trespass, seeking damages and an injunction to prevent future such actions. This will require evidence of the actions, along with estimates or receipts for repairs. This can get expensive and become time-consuming. Rather than return at the end of the day to the peacefulness of home, it feels like returning to the battleground.
If the McCoys continue to be so difficult, the only resolution may be the Hatfields selling their house and moving. However, if the McCoys are really that difficult, particularly if it has risen to litigation, it may be a matter that the Hatfields need to disclose on the seller property disclosure statement.
In any case, if peace among neighbors is important to a home buyer, it may be something worth investigating during the due diligence period. Check online as to the neighbors’ litigation, inquire about HOA complaints and knock on the doors to say hello. You don’t need to be looking for your next best friend, but someone who will not be the source of aggravation for years to come!