QUESTION

Ohio: Builder is using our backyard for new construction without our permission and refuses to give us our final grading, is this legal?

Asked on Jun 20th, 2013 on Construction Law - Ohio
More details to this question:
We had a new home built in Summit County (City of Green), OH by Ryan Homes and we closed on March 28, 2013. Per our contract, they were supposed to give us a final grading by 30 June 2013, so we could get the home landscaped. They informed me on Monday (June 17th) that it was complete, and we could start landscaping, but my landscaper says that it is not. There are huge grooves chunked out from their machinery, piles of rocks, big boulders everywhere, piles of branches, and they are using our land to drive construction dirt away from an excavation of a new house they are starting to build two lots away. They used our land for easy access to our neighbors' lots so they could give them a final grading. They seeded and strawed their front and backyards. They did not ask our permission, they just did it. They never seeded and strawed our property. We would like to make full use of our property, for which we paid a premium. There are no easements excepted and reserved in the deeds.
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1 ANSWER

You have 2 primary issues, your contract and the trespass to your property. There are legal (court action) and practical remedies for your situation.  While a lawyer may be helpful to resolve your issues, I doubt that you will need to use a legal remedy.  Most often situations like this are resolved by a lawyer’s letter.  People are often persuaded by a lawyer’s letter, but not by a homeowner’s letter. First, the use of your yard;   Ryan may have reserved a "license" to use your property in your contract, check your contract.  More likely, they are just doing what is convenient and trespassing on your property (https://en.wikipedia.org/wiki/Trespass_to_land ).  Trespass by itself is a tort (a civil wrong resulting in legal liability).  It can be controlled by an injunction issued by a court or money damages for actual harm, such as damage to your grade, or loss of use because of their damage to your property to keep the landscaper from finishing the work, even the extra work/water to keep the soil moist enough for the grass seed to germinate and thrive. While they weren't promising to deliver a final grade until June 30, it seems unlikely that they delayed the delivery so long because they planned to continue using it, but more likely because they were reserving possible weather delays for their benefit.  It doesn't mean that you couldn't have done your work before that, but you would have had to do the final grade yourself and have it approved by the city. Your second issue, Ryan's failure to deliver a properly graded yard, will be covered by your contract and city building code.  The primary purpose of the final grade is to assure that surface drainage is directed away from the house and does not cause problems for or damage to neighbors' property.  Leaving ruts sounds like they haven’t completed a final grade.  Final grade may have been approved by the city, but later damaged.  The rocks, boulders and branches probably don't have anything to do with the final grade, but are likely controlled by your contract.  It sounds like they may have not completed the work in a "workmanlike" manner, which may give you rights under the statute http://codes.ohio.gov/orc/4722 .   Because you are running out of time to get your lawn planted (ask your landscaper), you should encourage Ryan to finish the work immediately (using a lawyer letter) and if they won't, check with the city, see if they have gotten approval on their final grade.  If there is a final approval, photo/video the problems, then get the work finished by your landscaper, having him or her document the charges for the additional work, then try to recover that from Ryan.  It's better than planting late, having a bad lawn merely because you waited for them to do the work. Contact your attorney now, have him or her review your contract and your photos/videos, then write a letter ASAP.  Then, with your attorney make a decision as to the next step if Ryan doesn't agree to resolve your issues immediately.
Answered on Jul 03rd, 2013 at 4:18 PM

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