I'm named in a law suit.

[Gregorian]

I entered into a real estate contract where the seller retained timber rights. And instructions were also agreed upon by which I was to follow. It's kind of a long story. But the penalty for breaking the instructions is $150,000. The contract states-

If buyer fails to co-operate with Seller's permit application or if buyer interferes with the sellers permit or logging operations, the penalty shall be $150,000.

Now one neighbor has fought off the cutting of these trees for thirty years. And has spent a lot of time and money doing so. He called me when the logging notice went out to the adjacent properties. When I returned his call I told him how upset I was that these trees were being cut. I guess I have to tell a portion of the story to make sense of things. This is a timber ranch. And in order to build a house in this zoning, I have to submit a permit for a California Department of Forestry conversion exemption. This allows me to clear up to a 3 acre area to call a homesite, or many other things that are examples of bona fide intent. The bona fide intent is something they require now since so many homeowners were simply submitting permits in order to just log three acres. Now the timber right owner knew that he would not be able to cut the trees if he were to submit a permit application for a timber harvest plan, since that is disgressionary, and would allow for input from the general public. So what he did was he piggybacked his logging operations onto my three acre conversion. This left me with about an acre and a half in which to plan my homesite. That sounds like a lot, but it's like he took valuable useability from my property. And I left a message on my neighbor's answering machine telling him that I was distraught over that, as well as that I was essentially doing the conversion of the trees adjacent to his house in order to facilitate the cutting of the trees. He says he's going to use this tape in court to prove that I do not have bona fide intent.

I'm concerned that if I have given this neighbor that ability to stop the logging, then it can be construed that I have interfered with logging operations.

I'm posting what I've written because I have just been approached by some of the people as I'm typing. But I think what I've written is sufficient for someone here to help advise me on where I stand with this thing.

THANKS!

[gristy]

1. One suggestion - when one may be sued or is being sued...

Don't leave messages on answering machines or post on public blogs!

[patrice]

2. Yes, please take this down. I'm worried for you.

:hi:

[melm00se]

3. ditto post #1

and you will want to consult your attorney, don't trust the court to dismiss you from the suit without a motion filing asking to be done so.

[wrando]

4. don't fool around

get a lawyer
I've been involved in similar right of way lawsuits and it cost me big bucks.
If you talk to a lawyer I think it could be repaired easily if it needed, some of these rights of land use laws are pretty black and white.
Not to scare you, but for your own peace of mind have a good lawyer take a look at your contracts.
You should be fine

good luck

bill from ct

[sharesunited]

5. That is a bad attempt at a liquidated damages clause.

Liquidated damages should bear some resemblance to what the actual injury would be from breach of the covenant.

If the language of the contract actually calls it a "penalty" that makes it even less reasonable on its face as damages and confesses to its character as punishment. Punishment is not a contract remedy.

You didn't mention whether you have closed on your purchase yet, or whether the seller would be asserting the breach as a reason not to close.

[Gregorian]

7. We closed the sale in November of last year.

Thanks for looking at this, by the way.


I own the land. The seller is now the timber owner. They have an approved CDF conversion exemption, and have already logged about a third of what they intended to log. But there was a restraining order a week ago, and operations stopped. That order was at the request of the neighbor. Next there will be a followup to see if it should be upheld, or something. I'm not sure. I haven't been subpoenaed for anything, yet.

I brought up the communication with the seller, and he said he did not construe what I had done as interfering with logging operations. But when he hears the recording, he may feel a bit differently. I'd prefer he didn't cut the trees, and I feel his contract has impinged upon my ownership in an unreasonable manner, and I communicated that with the neighbor.

My real question is- what is a "logging operation". Operation, to me, is less vague than it seems. I'm thinking it literally means operations as in, physical operations. But maybe a good lawyer could turn this thing around.

I don't think I can even take the fifth amendment. If my tape is damning, I may need to fight it.

My opinion is that he's not going to prevail. This whole argument is in the event that the neighbor prevails, and logging is indeed stopped, and it was aided by my conversation. Something tells me I haven't interfered with operations. But then again...

[sharesunited]

9. Don't worry about a thing.

Expressing unhappiness is not a breach. Your covenant was limited to opposition or interference, and the active opposition engaged in by your neighbor cannot be charged to you, even if you were openly sympathetic toward it or offered to join him in his opposition.

Moreover, your seller has assured you that he does not consider your sympathetic expression communicated to your neighbor to be interference. That is what we call an "admission against interest." Such an admission normally makes it legally impossible for him to later complain about any such supposed breach.

I say to you with confidence, sleep well and soundly.

[Gregorian]

10. I appreciate your help on this.

I mean it. This is my first brush with the judicial system. And I've spent a lot of time thinking about where this might go.

So may good things come your way.

Gregg

[HysteryDiagnosis]

6. Hoped you were GWB..... pity. Sorry for your troubles though. n/t

[Gregorian]

8. Haha.

That's coming, hopefully.

God, I find it hard to imagine how I can be worried about what I've done in comparison to what these criminals in the administration think they're getting away with.

Phew, I haven't posted on this forum since the day Kucinich withdrew from the race. It feels good. But I'm no longer optimistic about the prognosis for America, I'm sorry to say.