Can I get a permanent and mandatory injunction againsta joint co-owner for removal of obstructions on a common passage?

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Can I get a permanent and mandatory injunction againsta joint co-owner for removal of obstructions on a common passage?

I am a joint co-owner of a residential house which is undivided. The house was built by my late father. Another co-owner, who is also my brother, is deliberately placing various objects like chairs, bicycles, motorbikes and ladders, etc on the common passage which leads to the entrance and staircase of the house. This he is doing to indirectly evict me from my possession. This is causing obstruction for my easy ingress and egress from the house. What can I do legally so that he is forced to remove the obstructions? If I lodge a court case and he removes the obstruction during inspection by a court, and then puts them back when the inspectors leaves, then what? Can I get a permanent and mandatory injunction from court against the joint co-owner for removal of obstruction on common passage?

Asked on August 18, 2010 under Real Estate Law, Alaska

Answers:

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

Answered 10 years ago | Contributor

You could sue the co-owner for nuisance.  Nuisance is a serious and unreasonable interference with your use and enjoyment of the property.  Obstructing the entrance and staircase would constitute a nuisance as it unreasonably interferes with your use and enjoyment of the property.  You could take photos of the obstructing objects which would provide evidence in case they are temporarily removed.

In order to get an injunction, you would have to show that damages are inadequate.  Damages are the amount of monetary compensation you are seeking.  Damages are inadequate due to multiplicity of lawsuits for repeated incidents of obstructing the path.  Damages are also inadequate because land is unique.

Prior to issuing an injunction, a court will balance the competing interests of the parties.  The competing interests would be your right of access to the property versus the reason your brother claims for obstructing the entrance.  The court may issue a temporary restraining order to prevent obstruction of the entrance until a hearing at which time the court will determine whether or not to issue a preliminary injunction.  If a preliminary injunction is issued, then the court will subsequently determine whether or not to issue a permanent injunction.   It is at the court's discretion whether or not to issue the injunction based on balancing the competing interests of the parties.  A court has the discretion to require posting a bond to obtain an injunction.  However, that can be waived due to economic hardship or other issues. 


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