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Demolition too strict for redress, judge rules

(ran HP HN editions)

Howard and Shirley own a home adjacent to a lot owned by William. The city issued a building permit to William, who built a house with windows looking directly into the home of Howard and Shirley.

They sued William and the city to have his new house demolished, because it violates the building code and deed restrictions, specifically the setback requirements. William argued that such an extreme solution is not necessary, because he is willing to build an attractive fence blocking the view from his house into the rooms of Howard and Shirley's house.

If you were the judge, would you order William to demolish his house because it violates the building code and deed restrictions? The judge said no.

A mandatory injunction requiring the removal of a house is an extreme legal remedy only to be used when the circumstances justify it, the judge explained. Each case must be evaluated on its own facts, because there is no hard and fast rule for such situations, he noted.

Although William violated the building code and setback requirements, the judge emphasized that the removal of the house is not required because the violations can be remedied by less extreme means. Therefore, a mandatory injunction shall be issued requiring William to construct a permanent structure to block the view from all windows in his house into the home of Howard and Shirley, the judge ruled.

Based on the 1992 Oregon Court of Appeals decision in Kilian vs. City of West Linn, 829 Pac.2d 1029.

Robert J. Bruss is a nationally syndicated columnist on real estate. Write to him in care of At Home, the Times, P.O. Box 1121, St. Petersburg, FL 33731-1121. Questions of general interest will be answered in the column.

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