Next-Door Excavation May Leave You in Hole

You can protect your house against fire, burglary, false title, earthquake, termites, windstorm and deterioration with insurance, inspections and maintenance. But if your house is damaged because your lot tumbles into an excavation next door, obsolete law will frustrate your recovery.

The California Excavation Code says you cannot recover damages for loss to your home if the excavator gave you 30-days notice before digging, violated no codes and used ordinary care and skill and reasonable precautions to sustain your land.

Zoning laws require above-ground structures to be set back from lot boundaries, whereas underground buildings may be dug out right up to the common property line. Since time is money, a builder may hastily hoe out excavations that may remove support from your lot, allow your land to sink and damage your house, unless the builder supports your lot either by building a temporary wall, leaving earth sloped at a 45-degree angle or “slot-cutting.”

Taking the following steps before they dig may improve your odds:

--Learn excavation law to amplify your conversations with attorneys and engineers. You can study it in law books in many public libraries.

The California Excavation Code says that before digging, the excavator must give you 30-days notice to allow you to try to protect your property by, for example, extending your foundation--at your own expense. The code also says the excavator is not liable for damage to your house unless he violates some other law or is negligent.

The Los Angeles Municipal Code covering temporary excavation and shoring requires a temporary earth support slope of less than a 45-degree angle measured from the edge of the adjacent property, and/or the bottom of the footing of your house. However, shoring (building a bulkhead) or the proposed building walls can be substituted for the earth support if the Department of Building and Safety approves the soils engineer’s plan.

--Take photographs. Before they dig, photograph interior and exterior walls, wood floors at baseboards, piers under the house and the builder’s lot to rebut the possible claims of the contractor’s in-house attorneys, subcontracting geologists and insurance carriers that the damage existed before the excavation.

--Get the plans: Before excavating, the builder’s registered soils engineer makes a site survey and laboratory tests, then submits a “geo/soils plan” and site layout blueprints to the grading division of the Department of Building and Safety for plan check, approval and grading permits.

While building plans are proprietary, the site blueprint and the geo/soils plan are public information. Understand the permitted dig location, depth and distance from your property and the temporary shoring plan--all facts missing from 30-day notification.

Here’s what to do while they dig:

If the excavation damages your house, to win compensatory damages (from which legal expenses are deducted), you must prove negligence, that is, carelessness. If you persuade the court that the damage was caused by the excavator’s reckless, willful or intentional actions or fraud, you may realize punitive damages. Negligence examples:

--No initial 30-day notification: If the excavator does not notify you 30 days before the dig of the depth and start date, he is absolutely liable for damage to your lot (but not your house) even if there is no other negligence. If the excavator later digs deeper and/or closer, he must issue a new 30-day notification and renew your 30 days’ grace.

--Exceeding the specifications. Without notifying you or the authorities, a builder may change plans or fudge when he encounters a problem to avoid the delay cost of a new permit, plus a 30-day hiatus. That’s illegal. The Department of Building and Safety can suspend licenses for false and misleading documents, which is fraud. Ask for punitive damages.

--Not providing temporary shoring. If the excavator does not buttress your lot between the time the hole is dug and permanent walls are erected, as specified in the building code, and damage results, seek punitive sanctions.

--Trespassing into your land. Excavators may negligently cut into your lot and set concrete into the invasion. That is trespass, a civil wrong called a tort.

--Allowing water to drench the soil. Any excavation over 200 cubic yards dug from Nov. 1 to April 15 requires an approved drainage control system. Look for the system in the geo/soils plan. Lacking adequate drainage control, rain-lubricated soils may slip many months after the inundation.

Here are some tips for after they dig:

One day you wake to a stilled cacophony and a cleaned-up wasteland next door. No damage visible? Don’t be so sure. Damage may show up years later, for example, during and after this year’s torrential rains. Save your photographs and documents. If you’re suspicious, get an inspection and report from a geologist or soils engineer.

If your property is damaged, who will help? Your homeowners insurance policy may specifically exclude “earth movement: sinking, rising, or shifting.”

And don’t immediately run to a lawyer; it’s a waste of time and money. Large firms, which work on million-dollar landslide suits, won’t take your penny-ante case. Few small firms know excavation law. Say your damage is $50,000, and your lawyer bills you $200 an hour for 200 hours, plus $10,000 expenses for geologists, etc., a total cost of $50,000--win or lose. In a contingency plan your attorney may take 40% off the top of a judgment. You pay expenses win or lose.

To interest an attorney in a contingency arrangement you must prove to him or her that an excavator’s negligence and/or code violation damaged your property, and the dollar value of the loss is worth the attorney’s time.

Your estimate of negligence and damage is not acceptable. You’ll need a geologist’s or earth engineer’s investigation and report. If the attorney can’t recommend geologists and earth engineers, look for a different attorney.

So consult an earth expert first. Ask him to recommend attorneys with whom they have worked and won.

Your lawyer will pit your expensive geologists and soils engineers against a cabal of wealthy developers, insurance carriers, in-house lawyers, and subcontracting geologists. The first to run out of money loses, and it’s your poke versus the casino.

Existing excavation codes are pick-and-shovel laws in a backhoe-and-bulldozer age. They leave uninformed homeowners defenseless against the greatest political lobbyists and money contributors--real estate developers, contractors and insurance companies.

The law should be modernized not just to improve the homeowner’s chances in court, but to reduce litigation by obliging the excavator to use extraordinary care. Sure it’s quixotic: Homeowners living next to excavations have no lobbyists. Perhaps trust deed lenders, awakened to loss potential when the cost of house repair exceeds the homeowner’s equity, will campaign for excavation law reform. Three suggestions for legislative action:

1--Homeowners adjacent to excavations need special protection greater than commercial property owners.

2--Lacking the excavations plans, the homeowner is in the dark. The excavator should be required to enclose with the 30-day notification a summary of the state and municipal codes and an offer to loan the excavation plans, plus naming the Building and Safety grading contact. A 10-cent pamphlet may save tens of thousands of dollars on litigation later.

3--Before the California Excavation Code was enacted in 1872, the courts followed common law--and in the United Kingdom they still do--which gave a homeowner the absolute right to lateral support in all circumstances, and the excavator was liable for damages to his neighbor’s land regardless of how carefully and skillfully the work was done.

The code should be returned to the common-law rule when the excavator was liable for damages to the homeowner’s land even if he was not negligent. This will induce the excavator to take extra ordinary care to protect his neighbors.