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Sign Alleging Drainage Problem

01 May 2013

Thomas S. Tripodianos

Question. Can purchaser erect a sign on his property inviting prospective home buyers of adjacent property to examine drainage problem allegedly caused by builder at his house?

Answer. NO. The sign is an instrument and incident to primary motive of Purchaser to interfere with Builder\'s business and coerce settlement.

Purchaser has brought a claim against the Builder, a residential home builder, for damages resulting from improper grading of the Purchaser\'s lot and the lot to his rear.

After the commencement of the lawsuit, Purchaser erected on his lot a sign 30 inches wide and 4 feet high, saying: \'PROSPECTIVE HOME BUYERS! YOU ARE INVITED TO EXAMINE THE DRAINAGE PROBLEM ON THIS LOT, CAUSED BY [XYZ] HOMES, INC.\'

Builder owns other building lots in the same subdivision where the Purchaser\'s home is located and wants to prevent the Purchaser from the display of signs referring to the Builder and from any other acts which would harm the business reputation of the Builder.

The Builder argues that allowing the Purchaser to continue to display of the sign during the pendency of the action will produce irreparable injury to the Builder.

When the courts will and will not grant a temporary restraining order in these situations appears to be based upon certain criteria, as follows:

1. Are the signs being displayed at or near the property of the Builder and are they away from the property of the Purchaser?

2. Is the publication of the words merely an instrument and incident to wrongful acts intended to damage the business of the Builder?

In this case the sign in question is located upon the Purchaser\'s own property. It is also adjacent to the Builder\'s subdivision.

The Purchaser has done more than simply commence a lawsuit. He has erected a sign bearing a message which involves the very issue raised in his suit. This contemporaneous act would seem to indicate that the publication of the words is intended as an \'instrument and incident\' to the apparent primary motive of the Purchaser to interfere with the Builder\'s business and thereby coerce a settlement of the pending action. Were there not a lawsuit pending, the conclusion might well be different, but under the existing circumstances the Purchaser should be compelled to take down the sign.

In addition, the posting of the sign by the Purchaser may also violate deed restrictions and zoning ordinances.

If you would like more information regarding this topic please contact Thomas S. Tripodianos at ttripodianos@wbgllp.com or call (914) 607-6440