Are you sure? Yes, the initial error was pointed out. Do we know that the guy who was party to the conversation was the actual guy digging the holes? We know he did move the first erroneous posts back. Not enough apparently. But can we be sure there was not a misunderstanding between the OP and the contractor as to what was to be moved back? The OP's intent was that NOTHING encroach but perhaps teh contractor thought the OP meant that he didn't want the face boards encroaching but didn't care if the posts did. Or maybe he intended that nothing encroach but he did the math wrong when he figured how far back he needed to move things. What do you suppose will be testified to in court? I have seen many instances of this kind of miscommunication and it's certainly within the realm of possibility here. So I again offer MY opinion that if this went to court the judge would say "You're here to complain about a 1.5" accouchement!!! Case Dismissed, or perhaps "I'll award you $150 for a counseling session".
Hopefully you read my immediately prior post of a minute ago. There is plenty of unknowns here in terms of what was said and more importantly, what was actually understood. In addition, we cannot rule out that the contractor intended to get it ALL on the right side of the "line" but made a calculation error.
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.
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
What you keep missing is the law says you can't build something on another man's property. The remedy for that is simple. The fence gets moved. This isn't some innocent mistake. It's an overt act of the neighbor or his workmen, not giving a damn and deliberately putting a fence on another man's property, even after being told by the owner not to. You want to now believe that a court is going to get into what is "fair", to make the guy infringed prove that he's really harmed. This is absurd. The court will order the fence to be moved. And it's not that it's impossible to do, it's a tiny backyard with what, 40ft of fence? Good grief.
had 40 years of boundary surveys under my belt and have been retained as a n expert witness over land issues. Consider the following:
rvey 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 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.
nt ahead and built the fence on Don's property anyway. Any monkey with a
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.
There's a huge, huge, huge (that's 3 x huge) difference between a dispute involving the incorrect placement of a fence by a contractor when the fence is entirely on the property of the individual that signed the contract and the incorrect placement of a fence onto the property of someone who is in no way involved in the contract.
I seriously doubt that even the same judge would consider an encroachment onto a third party's property equivalent to the fence between placed inside the property line of the land owner whocontracted the fence.
No argument from me, but just from a practical point of view, moving 40' of fence 1.5 *feet* would probably be easier to do than moving 40' of fence 1.5 inches.
If the post holes had the typical 80 lb bag of cement dumped into each hole, moving them 1.5" is going to be kind of hard - I agree: not impossible, but kind of hard.
An awful lot of bullshit over 1 1/2 inches of space which WILL NEVER BE USED BY ANYONE. This guy watches the contractor build the fence where it now is and THEN complains. Why didn't he say something BEFORE it was completed? He KNEW that it was going AROUND that power pole...by letting the building continue he was by his inaction OKAYING the whole shebang.
Hi, Also I am wondering what is surveyor's allowed margin of error? Making enemy of neighbor with 1.5" overlook or mistake or whatever. Is it worth it?
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.
Well, we have opposite viewpoints on what a judge will due. I'm sure this isn't the first time two people reach different views based on the same facts.
I'm not missing anything. It doesn't matter what the law says. What matters is what the judge says. And the law doesn't say you "can't build something on another man's property." At best it might say "you may not....". Obviously you CAN build something on another man's property, just as happened her. Once that happens the parties to the dispute must seek a remedy. If they cannot agree on a remedy between themselves then they must go to court. At that point you have no assurance of what could happen.
And to return to what's been said before, given that you CAN build on another property, and that people DO build on others property, the LAW even has provisions for those bad bad bad people who did that dastardly act to actually wind up OWNING the other person's property thru the LEGAL means of ADVERSE POSSESSION. So VERY clearly the LAW recognizes that people CAN and DO build on others property and has even made LEGAL provisions to ACCEPT the encroachment.
One thing I do agree with you on is that "the remedy is simple" in this case. If you can't show any actual damage other then your pride you will very likely have to live with it because quite frankly, moving a fence over 1.5" is just silly and stupid when it affects nothing of meaning. So the remedy is to get over it.
On Sat, 29 Jun 2013 16:36:31 -0400, Ed Pawlowski wrote:
I'll tell you what he should have done based on what I've seen happen OVER AND OVER again on major highway construction projects. IF it was all that important to him that it NOT encroach he should have sent an "inspector" out as the work was being done to protect his interests. In court it would go like this...
Defense Counsel to Plaintiff - So you knew the fence was in the wrong spot and told them not to put it there. Plaintiff: Yes Defense Counsel to Plaintiff - so it was of some importance to you? Plaintiff: Yes Defense Counsel to Plaintiff - Did you tell the contractor why it was important? Plaintiff - I just told him it was in the wrong place, that's all he needed to know. Defense Counsel to Plaintiff - And when the contractor started over building the fence at the second line, did you go check that line? Plaintiff - No. Defense Counsel to Plaintiff - Why not if the location was so important to you? Plaintiff - I didn't think it was my job to inspect his work. Defense Counsel to Plaintiff - So it was important enough to check on the first day, but not important enough to check on the second day when he started over? Plaintiff - no, it was still important. Defense Counsel to Plaintiff - yet you didn't check. Why was it important? Plaintiff - it's my property. Defense Counsel to Plaintiff - And how will the loss of that 1.5" affect your use of the property? Plaintiff - it will just irritate me. Defense Counsel to Plaintiff - - but will it affect where you can park your car or where you can grow flowers, or does it affect the drainage or what? Plaintiff - no, it doesn't affect any of those things, it just bothers me. Defense Counsel to Plaintiff - So except for your hurt feelings, this error has no actual impact to your continued use and enjoyment of your property? Plaintiff - That's right . . . Closing arguments by Defense Counsel - Your honor, plaintiff has admitted that this 1.5" error in no way affects his continued use and enjoyment of his property nor will it affect the value of the property. It may even raise the value since there is now a fence where there was none before. Inasmuch as the plaintiff has demonstrated no actual damages I move for dismissal.
Judge: There has been no evidence presented showing any actual damage to the plaintiff. Therefore I rule in favor of the defense and award them court costs and attorneys fees to be paid by the plaintiff. Perhaps that will send a message that the courts time should not be wasted on these trivial matters.
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