Does “right-of-way” give my neighbor the right to tie their dog up on my property and change my property as they see fit?

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Does “right-of-way” give my neighbor the right to tie their dog up on my property and change my property as they see fit?

My neighbor is tying up their dog on my property between our houses. The area smells terrible. I can’t open my windows. Furthermore, they changed the shape or grade of the right of way (my property) to suit their construction project. I want the dog out of there and the slope returned to its original shape.

Asked on January 27, 2012 under Real Estate Law, Maryland

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

You can sue your neighbor for nuisance.  Nuisance is a serious and unreasonable interference with your use and enjoyment of your property. 

The odors from the dog's mess is one nuisance.  A separate nuisance is the construction project which has altered the shape or grade of your property. 

Your neighbor's "right-of-way" cannot overburden your property.

Damages (monetary compensation) would be an inadequate remedy in a case of nuisance for the following reasons: multiplicity of lawsuits; land is unique.  Multiplicity of lawsuits would apply to both the dog odors and the construction project altering the shape / grade of your property.  Land is unique would apply to the construction project altering your property.

Since damages are an inadequate remedy, your remedy is an injunction.  A court will balance the benefits and burdens of the parties in order to determine whether or not an injunction is granted.  The benefit to your neighbor of the construction project versus the burden to your property will be considered. The court might consider how far along the construction project is and its cost. The benefit of your neighbor to tying his dog in that area versus the burden to you of the odors will be considered.

The court might issue a temporary restraining order  until there is a hearing on a preliminary injunction.  If the court issues a preliminary injunction, it would be in effect until the court determines whether or not a permanent injunction should be ordered. 

Although you may be required to post an expensive bond to obtain an injunction, the court can waive the bond for financial hardship or other reasons.


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