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?
ears 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 verif 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.
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.
0 years of boundary surveys under my belt and have been retained as an expe rt witness over land issues. Consider the following:
he last property in the block and find that it is only 24 feet wide. We ve 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.
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.
and built the fence on Don's property anyway. Any monkey with a
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.
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.
and built the fence on Don's property anyway. Any monkey with a
Having been in court several times, I can say, "Not necessarily."
When the lease had the usual clause about tenant paying collection costs, lawyer fees, etc., The judge made them pay the skipped rent. interest and fees were omitted. Never got the rent either. Lawyer offered to go after that for MORE fees.
Even worse, a judge in a HOA dispute said that although he was "concerned about the clear violation of covenants" he was going to rule for the defendent because the paperwork ruling for the plaintiff would take too long.
I asked the plaintiff's lawyer, "Did he just say ON THE RECORD that he doesn't intend to do his job?"
Lawyer shrugged and said, "Yeah, but what can you do?"
I could answer that but it would just be my opinion and that's what's got this whole discussion in a tizzy. Combine that with the notion some people have that judges "just follow the law". Jeez, haven't you people ever been to traffic court? The lower you go in the court hierarchy the more the judges just do whatever the hell they feel like doing. Thinking "I'm right, therefore I'll win" is a fools game.
Yes, Intent could be a factor. But keep in mind that the parties to the suit will not necessarily be the guy with the intent/the guy that made the mistake. Are you going to sue the guy who owns the fence or the guy who built it?
My favorite was many years ago in Philadelphia. Must have been 150 of us in court that morning. Judge comes in and the Bailiff says "all rise". Judge walks to the bench and asks "how do you plead" Everyone (what a surprise) said NOT GULTY. Judge said "dismissed" He probably had an early Tee time.
d 40 years of boundary surveys under my belt and have been retained as an e xpert witness over land issues. Consider the following:
y the 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 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.
ahead and built the fence on Don's property anyway. Any monkey with a
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.
If I am understanding the situation correctly - based on what Don has writt en - it wasn't a mistake.
Let's recap:
From the first post in this thread:
"The back yard neighbor has put up a fence that is 1 1/2" on my property. They have a survey. I also have a survey from the same surveyor. I showed them where the line was. But they went ahead and did this in order to have the entire top fit behind a phone pole that is on their property."
Key point: Don said the neighbor did it, but later he "clarified" that and said he didn't talk to the neighbor, he talked to the contractor.
*Time out for some defense lawyer speak: If he started this thread with a f alse/unclear statement, can we really trust anything he says after that? He first said "The back yard neighbor..." followed immediately by "_They_ hav e a survey" and mentioned a pole "on their property". At that point in the thread it was not clear who "they" refered to, but we all assumed it was th e neighbor. Only later did he clarify that "they" meant the contractor. Tha t also mean that the statement about "on their property" was essentially fa lse.
OK, if we ignore the "who is they" issue, the key words from his "I think you would be on shaky legal grounds. From what you said you knew when it was being built that it was on your property yet you let them build it there"
Don replied:
"NO. I stopped them from putting it 2 3/4" over and told them to not put an y of it on my property. I showed them where the line is."
So, if we choose to believe what Don has posted, as soon as they (the contr actor) started to install the fence 2 3/4" over the property, he talked to the contractor and informed him as to where the property line was.
If, in fact, the contractor installed the fence 1 1/2" (later reduced, by D on, to 1 1/4") in order to clear the aforementioned pole, then there was no "mistake". The fence was intentionally installed on his property.
They have a survey. I also have a survey from the same surveyor. I showed t hem where the line was. But they went ahead and did this in order to have t he entire top fit behind a phone pole that is on their property. Had they n ot faced the good side towards themselves, it would not have been an issue. All that is on my property are the 4x4 posts and the top. Do I have the ri ght to slice the posts and top right at the line? The fence back is attache d to the fence sides, which would give it stability. The reason for doing t his is the properties are staggered. I'm adding a fence to the back where t his fence isn't, and it won't line up. I know I have the right to cut off t ree limbs that hang over. But do I also have the right to cut back a fence that is hanging over? Don.
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(e-mail link at home page bottom ).
Have you actually talked to the neighbor directly yet????????????
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.
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