If someone trespasses and causes property damage, the owner of the property is entitled to compensation for that damage. However, property owners should be careful to prove damages accurately to maximize recovery. Relying on the wrong damages model could mean losing a case, and retrials are rare and costly. See Tex. R. App. P. 44.1(b); Tex. R. Civ. P. 320; Iley v. Hughes, 311 S.W.2d 648 (Tex. 1958).
Permanent or Temporary Loss
When assessing damages in a trespass action, litigants can either rely on decreased market value or the cost of repairs for those damages. Knowing which option to choose depends on whether the damage is temporary or permanent. If the damage is temporary, The Texas Supreme Court has ruled that the litigant can sue for the cost to restore or repair property as well as the loss of use. However, even if the damage can be repaired, the damage is considered permanent if is likely to happen again or reparation is so costly that it is not financially practical. If the damage is permanent, damages are determined by how much the fair market value of the property decreases as a result of the damage. For example, in a recent case, a pipeline company mistakenly removed several hundred feet of trees, breaching an agreement with the property owners. Since the company had promised that the pipe would be underground and the trees protected, the landowners sued for damages. Although new trees could be planted, the court decided that the loss of trees was a type of permanent damage, regardless of the impact on property value. Therefore, the property owners were able to recover “the ornamental utilitarian value of the trees.” Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Texas), L.P., 449 S.W.3d 474 (Tex. 2014).
Presenting objective evidence of damages caused by trespassing in Texas is also an important component of being compensated for those damages. Speculation about damages is difficult to prove. If the claims seem too subjective or exaggerated, those claims likely will be denied. In contrast, assessing damages reasonably while also providing evidence to substantiate damage claims will likely lead to greater success for a litigant. Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699 (Tex. 2016).
Calculating damages in a trespass action is not easy, and the cost of legal missteps can be high. A lawyer knowledgeable in real estate law can help a litigant navigate legal complexities and receive fair compensation for the damages to real estate in a trespass action.
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