neighbor's fence partially on my property

Page 6 of 12  


Correct.

I stopped them when they tried to put it 2 3/4" over. I showed them where the line is. I assumed that they then did it right. Only now have I discovered that they didn't. And the discovery was made when my fence guy put in the side fence and it didn't line up with this fence. So we measured to see what was going on.
Don. www.donwiss.com (e-mail link at home page bottom).
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
wrote:

That would slightly change my prior response since you did raise the issue with them. That said, I think you would still lose if this goes to court. There is only the most trivial of harm to you from what's happened and it seems like the issue with your fence could have been easily fixed at the time it was built had the contractor cared how it was going to line up - apparently he didn't or he would have spotted it before putting up your fence. In this kind of civil dispute there's a good chance the court is not going to focus on technicalities of the law, otherwise they would order a fence moved even if encroached even a sixteenth of an inch over the property line. The court is more likely to look at what an equitably/fair solution would be after hearing from all parties. If I were the judge knowing what I know at this point I'd not be likely to order the fence moved. But another person as judge, god only knows what someone else might decide. I'm having a hard time picturing how/why your fence was not able to line up with this one.
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
On Monday, June 24, 2013 12:30:18 PM UTC-7, Ashton Crusher wrote:

Everybody is having a cow over inches. It seems to me that the real issue is that the "good" side is facing the ne ighbor. How complicated would it be to have the fence re-finished such tha t both sides are "good". That was done without my asking many years ago; t he contractor put up a double-sided fence.
Could you look into this, friendly-like, with the neighbor, and if absolute ly necessary, put up a share of the cost?
None of this is to denigrate the usefulness of having a correct survey, cop y in the bank.
HTH
HB
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
On Monday, June 24, 2013 3:30:18 PM UTC-4, Ashton Crusher wrote:

You're misinformed as to what courts and judges do. They aren't there to figure out what is fair. They are there to apply the rule of law. And I think you will find plenty of case law that says you can't build something on another person's property. 1.5" isn't much, but it's also clear why they did it. By doing it, they got their fence around a telephone poll. IMO, this would be a slam dunk win, and the fence would have to be moved. To follow your reasoning, a neighbor could build his house where it's not supposed to be, then because it's an inconvenience to redo it, he gets away with it.
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
On Mon, 24 Jun 2013 17:24:34 -0700 (PDT), " snipped-for-privacy@optonline.net"

I think you are misinformed on what courts and judges do. Particularly the "little courts" like the JPs. You perhaps are also failing to make the distinction between civil actions and criminal actions as well as the differences between courts of "law" and courts of "equity".
http://templeterrace.patch.com/groups/opinion/p/court-of-law-vs-court-of-equity-why-it-matters-to-you-9
http://www.lawyers.com.au/legal-articles/difference-between-law-and-equity/
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
On Monday, June 24, 2013 5:24:34 PM UTC-7, snipped-for-privacy@optonline.net wrote:

Judges do consider equity, not just the letter of the law. I've had 40 yea rs of boundary surveys under my belt and have been retained as an expert wi tness over land issues. Consider the following: 300 foot long block with 12 each 25 foot wide properties. We survey the la st property in the block and find that it is only 24 feet wide. We verify that the block is 300 feet in total and find that the first property is sit ting on 26 feet width and everyone in between has exactly 25 feet. Subdivi sion is about 90 years old. All houses are about the same age. A judge wo uld find it very inequitable to have every one of the owners mover their im provements by one (1) foot. All 10 of the interior lots are encroaching on their neighbor by one foot. Fairness and equity are a big part of the law . Ivan Vegvary
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
On Wed, 26 Jun 2013 21:09:07 -0700 (PDT), Ivan Vegvary

of boundary surveys under my belt and have been retained as an expert witness over land issues. Consider the following:

property in the block and find that it is only 24 feet wide. We verify that the block is 300 feet in total and find that the first property is sitting on 26 feet width and everyone in between has exactly 25 feet. Subdivision is about 90 years old. All houses are about the same age. A judge would find it very inequitable to have every one of the owners mover their improvements by one (1) foot. All 10 of the interior lots are encroaching on their neighbor by one foot. Fairness and equity are a big part of the law.

So then the first guy benefits while the last guy loses. In a case like that will he be able to use the 1 foot at the first house? If, say, he has a family picnic, could he set up the food tables on the 1 foot of the first guys yard? Could he set up a narrow tennis court in his yard?
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
On Thursday, June 27, 2013 12:09:07 AM UTC-4, Ivan Vegvary wrote:

witness over land issues. Consider the following:

y that the block is 300 feet in total and find that the first property is s itting on 26 feet width and everyone in between has exactly 25 feet. Subdi vision is about 90 years old. All houses are about the same age. A judge would find it very inequitable to have every one of the owners mover their improvements by one (1) foot. All 10 of the interior lots are encroaching on their neighbor by one foot. Fairness and equity are a big part of the l aw.

So, I sign a contract for you to survey my land for $2000. You perform the work, there is no dispute that it's correct. I later find that 8 other surveyors are only charging $800 to $1200. I send you a check for $1000, because that's a fair price. So, is a judge going to decide that $1000 is a fair price and that's all I have to pay, or is the judge going to enforce contract law and make me pay you the $2000?
I agree you can come up with extreme cases, like the one you cite. But even in that example, it isn't even clear to me who is at fault, how the problem came to be, and that it can't be solved by straightforward application of the law. For example, the application of adverse possession. The last lot is 24ft, it's been that way long enough to satisfy adverse possession. That could be the end of story without any need for "fairness". If the 24 ft means that it doesn't meet the minimums to build some new structure, put up a new fence, etc, then that's what zoning variances are for.
And this case thread of someone putting up a fence on your property 2 months ago is very different. If judges started allowing a fence to stay based on "fairness", it sets a very bad precedence. It encourages everyone else to do the same thing and then sue for "fairness" instead of property rights. In this thread case, there is no dispute as to where the property boundary was. The neighbor's workmen were informed of it. The survey of both neighbors show it to be in the same place.
My main point is that many people think a judge is there with fairness and equity as the main concern. If that were the case, the judge in my surveying work example would say all you get is $1000, because that is a fair price for the work. But the judge is going to enforce contract law and you would get your $2000.
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
On Thu, 27 Jun 2013 06:13:28 -0700 (PDT), " snipped-for-privacy@optonline.net"

of boundary surveys under my belt and have been retained as an expert witness over land issues. Consider the following:

property in the block and find that it is only 24 feet wide. We verify that the block is 300 feet in total and find that the first property is sitting on 26 feet width and everyone in between has exactly 25 feet. Subdivision is about 90 years old. All houses are about the same age. A judge would find it very inequitable to have every one of the owners mover their improvements by one (1) foot. All 10 of the interior lots are encroaching on their neighbor by one foot. Fairness and equity are a big part of the law.

You presented a clear contract law issue which is easily resolved based on past precedent. The 1.5" property line issue is not the same.
The use of the equity law is often for cases when the award of money makes no sense. Show any real harm from the fence being 1.5" off. Is that costing you money? No. Just because someone wants to be a dick (and I'm not saying the OP is in this case) doesn't mean he will be allowed to. This is a residential house and it's value is not diminished because of the loss of 1.5" of property. If the error was 1.5 feet there would be something worth worrying about. Also, lets say machinery needed to be moved in between that fence and the house and losing 1.5" means the machinery no longer fits and the guy can't run his business. In that case equity would be to move the fence.
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
On Thursday, June 27, 2013 3:02:17 PM UTC-4, Ashton Crusher wrote:
...snip...

How about 127 posts in a.h.r?

Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
On Thu, 27 Jun 2013 12:16:39 -0700 (PDT), DerbyDad03

It keeps people off the streets,... that's got to be a good thing....
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
On Thursday, June 27, 2013 3:02:17 PM UTC-4, Ashton Crusher wrote:

rt witness over land issues. Consider the following:

rify that the block is 300 feet in total and find that the first property i s sitting on 26 feet width and everyone in between has exactly 25 feet. Su bdivision is about 90 years old. All houses are about the same age. A jud ge would find it very inequitable to have every one of the owners mover the ir improvements by one (1) foot. All 10 of the interior lots are encroachi ng on their neighbor by one foot. Fairness and equity are a big part of th e law.

Why isn't it the same? As the facts are presented here, there is no disagr eement over the survey, no issue of accuracy. The neighbor's contractor was even informed by Don where the property line is located and that where they were first going to put the fence was 3" on his side. The property line is not disputed. Then the contractor and/or neighbor went ahe ad and built the fence on Don's property anyway. Any monkey with a transit would know the fence was on the wrong property.

Don doesn't want an award. He wants the fence off his property.
Show any real harm from the fence being 1.5" off. Is

The "dick" is the neighbor and/or his contractor, who built a fence on property they don't own. Why would a court reward this behavior? If they let this guy do it, then why wouldn't anyone violate any neighbor's property rights, and then leave it up to the property owner to prove "real harm"?

Again, as the facts are presented here, it was *not* a mistake. And even if it is, what I own is mine. If you come along and build something on it, it's YOUR problem, not mine. And it's not up to me to prove that it harms me. Nor is it up to me to prove that there is loss in my property value. It's up to the neighbor to show that the fence is on his property, where it belongs.
Also, lets

BS. The property line is clear. The neighbor chose to violate it, even after being told. The law says you can't build something on you neighbors property. Judges follow the law.
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
On Thu, 27 Jun 2013 13:34:37 -0700 (PDT), " snipped-for-privacy@optonline.net"

years of boundary surveys under my belt and have been retained as an expert witness over land issues. Consider the following:

last property in the block and find that it is only 24 feet wide. We verify that the block is 300 feet in total and find that the first property is sitting on 26 feet width and everyone in between has exactly 25 feet. Subdivision is about 90 years old. All houses are about the same age. A judge would find it very inequitable to have every one of the owners mover their improvements by one (1) foot. All 10 of the interior lots are encroaching on their neighbor by one foot. Fairness and equity are a big part of the law.

The thing you keep missing is that this is NOT a contract dispute. The guy who built the fence did NOT have a contract with the OP, he had a contract with the owner of the house who had the fence built. If the court ruled that the fence had to be moved, THEN that homeowner would have a contract dispute with the contractor who failed to build it on the property and HE could sue for performance if teh contractor refused to move the fence. The OP has no standing to sue based on the contract, he's not a party to it.
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
On Thursday, June 27, 2013 9:42:38 PM UTC-4, Ashton Crusher wrote:

xpert witness over land issues. Consider the following:

verify that the block is 300 feet in total and find that the first propert y is sitting on 26 feet width and everyone in between has exactly 25 feet. Subdivision is about 90 years old. All houses are about the same age. A judge would find it very inequitable to have every one of the owners mover their improvements by one (1) foot. All 10 of the interior lots are encroa ching on their neighbor by one foot. Fairness and equity are a big part of the law.

I never said it was a contracts case. I only used that as a simple example of where the court enforces LAW, not what the judge thinks is fair. And what you keep missing is that the law says you can't build something on another man's property. That is what the neigbor did, in flaggerant violation of the law. His contractor and architect were explicitly told that where they were putting the fence was illegal. They went ahead and did it anyway. Now, you want to pretend that the property owner now has to prove that it actually harmed him, by how much, etc. The court will have none of that. The remedy is simple, move the fence. And the stinking fence is what 50 ft long?
And finally, you keep missing that courts don't want to reward and encourage bad behavior. If the law worked like you think, every asshole would build a fence onto someone else's property because the court would then say "Well, it's only 2", 6", 12" over on somebody else property, the lot is 1/2 acre, so unless you can prove it actually harms you, the fence stays. Some world that would be.
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
On Fri, 28 Jun 2013 05:41:23 -0700 (PDT), " snipped-for-privacy@optonline.net"

So simple that it is WRONG.
of where the court enforces LAW, not what the judge thinks is

What law says that? People build stuff on other peoples property all the time. Usually they have an easement. Sometimes they don't. If the property owner fails to object the guy doing the building may wind up with ownership thru adverse possession. The possession has to be notorious and adverse and typically for a certain period of time.
That is what the neighbor did,

Sorry but that's how the real world works. Sometimes it sucks. He may not win in court, it's far from a slam dunk.

Most people would not be willing to take the chance. If a judge only sees one case like this a year and it's over 1.5" of encroachment that does not real harm he is unlikely to rule that the fence must be moved. If he sees one a week things might well be different. Most judges aren't going to operate on the silly thinking about what might happen if things were vastly different then they are.
Just out of curiosity, what do you think would happen if this case was slightly different... lets say that the contractor built the fence 1.5 inches away from the property line. Now that owner sees this and tells teh contractor to move the fence over 1.5". The contractor refuses. This would actually be a case in contract law. What do you think the judge would say? Would he tell the contractor he must move teh fence so it is EXAXCTLY on the line but not over? Or would he listen to the contractor say "I always build a little short of the line to be sure I don't put the homeowner in jeopardy should it turn out there is a slight survey error. In 20 years of building fences no one has ever complained before. I don't think it makes sense to move the fence and create the possibility of encroachment." and after listening to the contractor the judge might say "You re right, this is an insignificant deviation that creates no actual harm to the homeowner. Case dismissed.
Just as would happen for the case in question....
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload

Actually last Summer the contractor told he built them 1" inside the line to be safe. But there are two brothers. It was the older one that told me that. The younger one may have been the one overseeing the fence construction.
Don. www.donwiss.com (e-mail link at home page bottom).
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload

I have been trying to visit him. I left a message on the old phone number he had back a year ago when he lived in Manhattan. I went over two evenings this past week, but he was not home. I guess with his wife away he found something else to do in the evenings. I could see that he was there today. On my second trip around the block I got him.
As expected he was not aware of the problem. Neither the architect or contractor told him that I was complaining. He is going to ask his contractor to look into it.
Don. www.donwiss.com (e-mail link at home page bottom).
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
On Friday, June 28, 2013 6:00:11 PM UTC-4, Ashton Crusher wrote:

n expert witness over land issues. Consider the following:

We verify that the block is 300 feet in total and find that the first prop erty is sitting on 26 feet width and everyone in between has exactly 25 fee t. Subdivision is about 90 years old. All houses are about the same age. A judge would find it very inequitable to have every one of the owners mov er their improvements by one (1) foot. All 10 of the interior lots are enc roaching on their neighbor by one foot. Fairness and equity are a big part of the law.

Good grief! Do I have to spell out everything for you? He has NO EASEMENT. HE had no PERMISSION. In fact, his architect and contractor were specifically told that where they were about to install the fence was on the wrong property. And in the cases where you build something on someone else property WITHOUT permission, it is in clear violation of the law.
If

Yeah, like 20 years. It's been two months. And the party also has to pay the real estate taxes on the property for those 20 years. The neighbor isn't paying the taxes, Don is.

I disagree. It'a about as clear a case as exists, about who is right, who is wrong, who owns the property. If courts like shysters get away with this, chaos would soon take over.

BS. Again, you think courts just start out with some concept of "fairness". That the judge is going to think "Gee, it really ain't that bad, it would be an inconvenience for the bad guy to move it, etc. That is precisely my point. Judges don't go there, unless it's some issue that isn't readily covered and solved by existing law and case law. And when you deliberately build a fence on another person't property, it's simple. You can't. The fence goes.
If he sees one a week things might well be different. Most

The silly thinking here is that it's OK for some skunk to violate a person's property rights and build a fence on someone else's property.

Very likely the contractor would lose. The contractor is the professional. If the contractor was unwilling to build the fence where the owner wanted it, he should have told him so. He should not have entered into a contract and then disregard the contract and do what he pleases. The contractor kept hidden what he was really going to do. If he had been honest, the owner could have called other contractors to find one that would do what he wanted.

Good grief! Now you're trying to conflate a hypothetical case where a contractor builds a fence 1.5" over on property the guy owns, with one where the fence is built on SOMEONE ELSES PROPERTY.
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
snipped-for-privacy@optonline.net wrote:

If it was 1 and half foot over I'd do something but mere 1.5"?, Hmmm...
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload
wrote:

Have you ever thought of doing something courteous like snipping 900 lines of the previous message?
Add pictures here
<% if( /^image/.test(type) ){ %>
<% } %>
<%-name%>
Add image file
Upload

Site Timeline

HomeOwnersHub.com is a website for homeowners and building and maintenance pros. It is not affiliated with any of the manufacturers or service providers discussed here. All logos and trade names are the property of their respective owners.