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HELP! - Tenant built unauthorized deck

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Oct 19, 2013, 01:50 PM
HELP! - Tenant built unauthorized deck
It's unbelievable to me that a tenant would built a wrap around deck and gazebo without permission. I don't live on the premises to see what he was doing. He layed the crosspieces without any footers, right on the ground, and I don't believe he used flashing. It's against code as it's not the proper distance from property lines. He won't tell me what it's made of, and if it's fire resistant, or treated fire resistant or pressure treated wood. I also think the boards are too far apart. The other problem is that's it's right up against the brick of my house and I'm afraid of termite or water damage to the foundation.

I see some numbers of the edge of some boards. Doesn't pressure treated wood have the numbers on the face or bottom of the board or a label on the end? I'm posting a photo of the raw deck. If not pressure treated with no footers, it will be a feast for termites! It will be removed ASAP.

Also, what is that pipe like thing protruding from the deck?

Would appreciate any feedback. Thanks much!

This message has been edited. Last edited by: designrrr,

Deck wood

Oct 19, 2013, 02:03 PM
First, as the owner of the house, what are your intentions for this deck?

Second, I assume you required the tenant to execute a lease? What provisions address unauthorized construction? If you want it removed and the lease contains a preclusion for such additions, your tenant is in breach of the lease. If you want to take legal action to evict him, you might want to speak with a real estate attorney versed in landlord-tenant law before serving him with an eviction notice.

Third, and OTOH, do you want the tenant to stay but either make the deck code compliant or remove it?

Fourth, what is your tenant's position on all this, and have you raised the issue with him?

Fifth, has anyone from your city/township addressed the issue of setback violations, and if not, do you plan to involve them?

Sixth, document any and all conversations with your tenant on this issue.

As to your technical questions, I'll leave those to the posters here with construction knowledge; I only speak to the legal issues.

However, I can certainly understand your outrage at what your tenant has done and I think you're well justified.

This message has been edited. Last edited by: GardenSprite,
Oct 19, 2013, 04:24 PM
the photo is not clear enough (it's time for the close-up) as to what that pipe is. might be an old chunk of BX cable. might be a piece of old "tarball" interior wire, cloth and bitumen, which is not anywhere near code for new work, inside or out. hope to God it's not some junkyard piece of gas flex.

most cookie-cutter leases have a damage clause, in which you fix damages, and bill for it. your deposit is nowhere near going to cover remediation, which is bulldozer-grade here. this level of unauthorized work is quite enough to get an eviction from any court.

the wood looks to be PT, but whether the stuff in contact with ground is rated, I have no idea. my bet is... not.

Assuming your lawyer agrees, I would get the inspector out there, and get it written up. it's probably not enough to get the house red-tagged, but if so, you have a de facto eviction right there at the drop of a hat. get estimates first. get into court and get the character's pay attached, and get a formal eviction and small (or large) claims action started. if they're not working, get belongings attached for a sheriff's sale to cover your costs.

hardball is called for, I'm thinking. I assume you do not want to be a doormat.

you need to make an interior inspection of the place, because if the tenant did this, no telling what he/she/it stole out of the back of the lumberyard and slapped up with finish nails inside.

sig: if this is a new economy, how come they still want my old-fashioned money?
Oct 19, 2013, 05:59 PM
Further thoughts after reading Swschrad's comments...

The tenant's refusal to reveal the type of wood used suggests that he's not going to be very cooperative. Be sure to document any further instances of this nature.

Leases typically have inspection clauses allowing you to enter the premises. As Swschrad suggests, you don't know what you'll find, and you may find additional unauthorized changes (or worse) that would also require correction. I assume you have duplicate keys. Take a contractor with you for estimates and go when the tenant is out of the house.

I suggested getting local landlord-tenant advice because procedures can differ in various jurisdictions. I haven't done this work for decades but in Michigan the first step would have been to give notice of default, pursuant to statutorily specified methods of service (i.e., certified mail, personal service, publication in legal newspaper for specified time).

Cite the causal conditions and provide remedial options. It used to be that 45 days was required for remediation, but again, that may vary by jurisdiction.

Absent correction, an eviction order would be issued by the court. It may be served by a court officer or a private process server, again, depending on statutes and local court rules. You should not, nor do I believe it's legal for you to serve the eviction order. And you most likely wouldn't want to anyway for personal safety reasons.

How refusal to leave would be handled is also locally dependent, but it may be that the sheriff's office would handle the removal, not only of the tenant but of his property as well. In some areas here, the property would be moved out to the street and left there. Locks would be changed.

This is when you also need to be more concerned about retaliatory damage by the tenant.

Swschrad raises an interesting point about garnishment. Again, seek legal advice. In Michigan, generally a judgment must be issued before garnishment or attachment can be authorized by the court of jurisdiction, unless your lease specifies otherwise.

And you will have to have info on his financial situation so you know what to garnish or attach. If you obtained a credit report before leasing to him, at least you have something to go on. Get an updated report if you can.

I wasn't aware that sheriff's sales could be a means of recovering damages, but that's something else to explore. Sheriff's sales in Michigan are held for foreclosures, but that's an entirely different story. Again, these things vary by state and jurisdiction.

Good luck; sounds like this is going to be a tough situation.

If it's any consolation, I'll share a few horror stories from when my parents rented out a cottage after Dad remodeled, expanded and fixed it up.

A good tenant had a child who had somehow gotten ahold of matches and set the bunk bed on fire. My father had to replace and repair several parts of the cottage, the whole of which obviously reeked of smoke.

Another tenant called me while my parents were in Texas for the winter, said the furnace was out, he had left the water on and went up north for the weekend. I had to take time off work, get a furnace contractor and go out to get it fixed that day. No long term damage though.

After that I suggested we sell the cottage.

This message has been edited. Last edited by: GardenSprite,
Oct 19, 2013, 07:54 PM
basically, all tort law (stuff) is local. your first step, as GardenSprite has indicated, is sit down with your lawyer.

sig: if this is a new economy, how come they still want my old-fashioned money?
Oct 19, 2013, 08:11 PM
GardenSprite, thanks so much for taking so much time to help me. I do have an attorney and we issued a notice to cure and we were just going to serve him with a lease termination when his attorney issued an temporary restraining order, saying he didn't breach the lease which is nonsense. He basically took over my house and made changes to my electrical and plumbing without permission, or permits, and used unlicensed trades people. I'm hiring master plumbers and electricians to check everything. This was an apt. renovation that he paid for in exchange for reduced rent, but he's trying to customize my whole house when he was just rented an apartment. He will allow access, but says he won't let me take photos, as the work is so badly done, he's afraid I will use it againt him. He also placed security cameras all over my house with no permission too. He's being dealt with, but I was just curious about the deck. If I get a city inspector I will get a violation as it's against code, and then he has to take it down. He never checked building codes before he built it, spending thousands, and now he will spend as much to take it down. The strange part is that he doesn't even have use of my backyard in the lease.

Are you an attorney? Thanks again for all your kind help. And thanks Swschrad for trying to help. Your help is much appreciated.
Oct 19, 2013, 08:17 PM
Just looks like pressure treated wood to me.

Oct 20, 2013, 10:41 AM
Designrr, thanks for the explanations. This situation involves a lot more than I realized.

I'm not an attorney but have been a transactional paralegal (commercial real estate financing and development), contract administrator (large public works infrastructure project), and (somewhat unrelated) a court reporter. The kinds of legal issues you raised are ones which really intrigue me.

I'm glad you have an attorney who's on top of the situation.

Thinking all this over, I think that the crux of the issues is what you authorized the tenant to do and what he actually did. There could be breach of contract issues inherent as well since he exceeded the scope of the work.

In addition, the shoddy work didn't improve the value of your property/investment, but I think would rather have caused it to decline, unless remediated.

I also assume that your attorney is addressing injunctive relief to prevent him from doing anything more to the apartment and house, as well as
the potential construction lien exposure? And that he'll request documentation for all the work done? You could have a lot of exposure in this area if the tenant hasn't paid the contractors because of what he admits is shoddy work.

Since the tenant is "being dealt with", I assume your attorney has also outlined what has to happen in order to resolve the situation, but if you want any suggestions, I'd be glad to offer some.

Just another thought - getting the building inspection folks on your side by pre-emtping the violations issue could help you in your legal battles against this tenant.

If the tenant admits the work is shoddy, he's reflecting knowledge of this situation, yet apparently he allowed it to continue or hasn't taken remedial action.

Their reports of violations could be used in your pleadings, documenting the defects, as well as helping to outline the potential monetary exposure for correction.
Oct 20, 2013, 03:11 PM
Thanks again Gardensprite. What I really need to ask you is about court procedure. I have read the complaint they used to get the injunction and it's all lies. I can counter each and every lie with hard evidence. Can I take the number of each clause and right my response next to it, and then reference an exhibit such as (See exhibit A) and then write Exhibit A on my evidence? Is that form used in an answer to an injunction complaint? Would a judge take the time to read all that? Do they do so before the start of the hearing. Is the plaintif provided with my response before court. Of course it would be the lawyers response, but I'm doing all the work for him :-). Please let me know if that form is used in this context. Please let me know ASAP. Thanks again for all your help. I will reply further soon, but I want to address the complaint now.
Oct 20, 2013, 03:24 PM
Why would you not be asking your attorney these questions?
I would think he should know the local laws and how things work in your case.

Oct 20, 2013, 03:31 PM
Joe, I can answer that question. She's probably paying at least $250 up to $500 per hour for a NYC attorney, if not more. Her attorney would likely either call or have her come in to provide answers to the Complaint, so her doing it on her own first,and doing as much as she can, saves her money.

Given the discovery that's going to be required, saving probably $1K just on answering the Complaint will be money she can allocate later for legal work which only the attorney can do.

I do the same thing for my father's estate planning, researching and drafting terms, then meeting with our attorney to ensure that what I've done is compliant with estate planning laws and actually accomplishes what we want. Did the same thing when I handled 2 family Trusts. I figured I saved Dad several hundred dollars and saved even more for the Trusts.
Oct 20, 2013, 04:07 PM
I would if I can get a hold of him. It is the weekend you know! I would much rather someone tell me what that pipe thingy is. There's one on both sides of the house, between my house and the deck.
Oct 20, 2013, 04:13 PM

First, and very importantly, there is a time limit to answer a Complaint. It should be stated on the Summons with which I assume you were served. If you can't file an answer within that time, it's typically common courtesy for attorneys to agree to a 30 day extension. But this should be done between your attorney and the tenant's attorney, not between you and the Plaintiff's attorney or the tenant.

Just make sure you comply because otherwise a default judgment can be entered if you don't meet the time frame.

Second, Complaints are in fact answered clause (or paragraph) by paragraph. There used to be standard language for admissions, denials, or neither. Some jurisdictions have moved toward more understandable legal language.

You might ask your attorney's secretary about this, and to provide you with sample language, if you want to draft your Answer yourself. Alternately, you can write your answers separately, send/e-mail it to your attorney for final finessing (as to the "prayer" or relief requested), then his secretary can type it up and file it. Typically any pleading that's filed is accompanied by a Proof of Service, but there have been a lot of changes since e-filing has been made mandatory, and I'm not up to date on those. Your attorney's secretary would be though. The P/S is generally signed by the secretary who processes the transmittals.

This is typical phraseology for Answers:

"In answer to Plaintiff's Complaint, Defendant

(a) neither admits nor denies the same, but leaves Plaintiff to his proofs.

(b) admits the allegations contained therein.

(c) denies the allegations contained therein."

Choose which is most appropriate for each answer. Sometimes, if attorneys play games, they admit only jursidction and deny everything else.

On your copy that you send to your attorney, just write "neither admit nor deny.", "admit", or "deny." He'll know what you mean.

Exhibits are commonly referenced to support arguments.

However, at the Answer stage, strategy might be involved in providing Exhibits before you have documentation from the tenant. This is a question I would definitely ask your attorney. You may want to just attach exhibits that counter the answers and don't go any farther (i.e., as to the issues of what the tenant's scope of authority is, etc.).

Your attorney would want copies of all documentation at some time though, so you could provide it to him/her now for future use.

If you do include exhibits, standard language is to state your position, then something to the effect "See Exhibit A attached hereto and made a part hereof" or "incorporated herein by reference") - making the Exhibit part of the Answer.

Depending on how much data is needed, your attorney may want to file a Motion for Production of Documents, demanding that the tenant provide contracts, subcontracts, etc. He/she may also file an Affirmative Defense, although I'm not truly sure if this is done in suits for injunctive relief. It will depend on what relief you're requesting in your Answer (a legal strategy decision by your attorney).

Is that form used in an answer to an injunction complaint?

I honestly have only dealt with injunctive relief in connection with getting a PPO. BUT, generally and to the best of my knowledge, the allegation and answer response is standard for civil pleadings (including complaints, answers, motions, etc.)

Would a judge take the time to read all that? Do they do so before the start of the hearing.

He or she should, but honestly there are good and bad judges. Has a hearing been scheduled on the issues raised in the Complaint? Typically an answer is filed, then the attorneys file discovery pleadings (interrogatories or motions) in the data collection process, or what are known as dispositive motions for quick disposition, all dependent on the facts of the case. But because the issue is quitting the premises, it wouldn't surprise me if the issuing judge did schedule a hearing. Sometimes the judges have their clerks read the pleadings and advise them on the issues, their options, etc. So, yes the judge should be prepared and knowledgeable on the issues before the hearing.

But truthfully, I'm not that knowledgable about hearings on injunctions.

You could do some research on your own, by getting a copy of the court rules for the court in which the complaint was filed. Your attorney's secretary, or the Clerk for the court could tell you the name of the rules, you could either search online or go to the local county bar association and ask to see them (I've done that frequently). Or just call the county bar association library and ask which court rules apply for the jurisdiction of the court in question.

I'm sorry I can't be much help here, but if you tell me the caption I could help direct you. The caption would include be something like State of New York, In the (Circuit)/(District) Court for the County of ....., or it might be a different level court. Each state can be different. It could even be a specific Landlord/Tenant Court.

Is the plaintif provided with my response before court.

Your attorney is obligated to provide a copy of your Answer within the time allowed for response and would do so either by snail or e-mail. Offhand, I can't think of any venue in which pleadings wouldn't have to be provided prior to any hearings.

Of course it would be the lawyers response, but I'm doing all the work for him :-). Please let me know if that form is used in this context.

And you would definitely want, and your attorney would be required, to sign the Answer unless you decide to represent yourself, which I wouldn't recommend doing.

As I wrote above, I have little experience with injunctions other than PPOs, but if a Complaint was filed to get relief, it typically must be answered to avoid default, and to counter the tenant's position.

Have you had any strategy sessions with your attorney to determine how much you want to reveal now and how much later during discovery? Is your goal not only to answer but to lift the injunction? ARe you in turn seeking to enjoy the tenant from making any further unauthorized changes?

I hope this helps; if not, let me know.

This message has been edited. Last edited by: GardenSprite,
Oct 20, 2013, 04:17 PM
Hard to tell what it is in that picture, to fuzzy.
Flexible gas line for a grill?

Oct 20, 2013, 04:22 PM

I'm P'M'ing you right now.
Oct 20, 2013, 04:46 PM
joe, looks to me like a piece of scrapyard BX cable. not weatherproof, of course.

sig: if this is a new economy, how come they still want my old-fashioned money?