neighbor's fence partially on my property

[Don Wiss]

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. Had they not 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 right to slice the posts and top right at the line? The fence back is attached to the fence sides, which would give it stability. The reason for doing this is the properties are staggered. I'm adding a fence to the back where this fence isn't, and it won't line up.

I know I have the right to cut off tree limbs that hang over. But do I also have the right to cut back a fence that is hanging over?

Don.

(e-mail link at home page bottom).

[Doug Miller]

Don Wiss wrote in news: [e-mail]:

One and a half **INCHES** ? Really? You're making a fuss about one and a half

**INCHES** ?

You'd better be damn sure that the survey is dead-nuts accurate, before doing anything at all. And your next step after that should be to talk to your neighbor.

[The Daring Dufas]

Did you ask your local inspection department? Or confer with a real estate specialist? o_O

TDD

[DerbyDad03]

Well for one thing, I don't believe that your neighbor is allowed to install the fence with the bad side facing your property. Unless you've got some strange fence ordinances where you live, the standard rules call for the good side to face the neighbors.

Seems to me that while they are "turning the fence around" they should reposition it to be totally on their property. It could cause serious issues later on if you or they decide to sell.

Second, are you sure that your local ordinances don't require a set back for fences? My town allows the fence to be right on the property line, but many municipalities don't.

Do you and your neighbor not get along? It seems wierd that you pointed pointed out the property line and they still encroached upon your property, apparently without any further discussion. How did the property line discussion go when you brought it up?

[nestork]

I would bring the discrepancy to the attention of the surveyor and have him ammend his most recent survey or otherwise address the problem.

If it's only 1 1/2 inches, perhaps all that's needed is something in writing from your neighbor acknowledging that his fence encroaches that distance onto your property. Put that in your safety deposit box in case it ever becomes an issue.

[Ken]

I agree with most of the others, you should talk with your neighbor first. As for me, if the issue was 1 1/2 inches, I would tell him about it and ignore it for now if it was established as a fact. You are not forfeiting your property to him, just not objecting to a miniscule issue.

Finally, I am not so sure you have the right to cut off tree limbs that hang over your property line. Most cities say you have that right if they prevent you from using your property, but not for a simple overhang. Can you imagine what most trees would look like if everyone did what you proposed??

[David L. Martel]

Don,

Destroying your neighbor's property is not legal. It's not clear in your posting why you and the neighbor aren't resolving these issues though it sounds like you see mountains where others see mole-hills. Here are some options. You may write to your neighbor giving your permission for his encroaching fence. This may prevent "adverse possession" of the property and may help heal whatever ill feelings exist. You may complain to various municipal inspectors about the fence. There may be a need for a building permit. There may be a need for a setback. There may be a requirement that the "good" side of the fence face outward. This shouldn't be expensive. You may sue in civil court (this is not a small claims case}to get an order to fix the fence. You'll probably need a lawyer to do this.

Dave M.

[gfretwell]

There is no such thing. We like to think surveys are some kind of exact science but when they actually started looking they find +/- a foot is about as good as they get. I have 3 survey stakes in the North West corner of my lot from 3 surveyors over the years that you could not cover with a drywall bucket.

If you are not close to a section monument, where they start is arbitrary, usually aligning to the centerline of a road ... that is usually not actually in the right place. That is particularly true in developments where the developer built the road and ceded it to the county.

They are even finding out the section monuments are frequently misplaced.

I just watched a survey of the lot around the corner from me. This guy just used a metal detector to find old stakes and they took them as gospel. Unfortunately one was not really a survey marker so they just put a dog leg in the property line that does not exist on the plat.

[DerbyDad03]

Are you sure that most cities have a "right to use" language in their ordinances? That is not how I have always understood it.

I have always thought that it worked like the first question at this site:

Just how would "right to use" be defined? If a neighbor's limb was scraping my roof, it wouldn't prevent me from using my roof or any other part of my property. Does that mean I can't cut it to protect my investment?

If the limb overhung my driveway and dripped sap and bird droppings on my vehicles, it wouldn't prevent me from using them or my driveway. Does that mean I can't cut them back so that I can enjoy my vehicles, not just use them?

[Don Wiss]

Back yards aren't very big here in Brooklyn. And as I wrote, his fence won't line up with the fence I'm putting across the back for the part that does not overlap.

anything at

I am absolutely sure. I have at this point only told his architect. He did not respond. I'm doubt the owner had anything to do with it. It was most likely the contractor's fault.

The fellow is new to the neighborhood. He still hasn't finished the now three year renovation project that he undertook when he bought the house.

Don.

(e-mail link at home page bottom).

[Don Wiss]

What does the surveyor have to do with this. We both used the same surveyor. There can be no dispute over the surveyor's accuracy.

Maybe.

Don.

(e-mail link at home page bottom).

[Don Wiss]

That is a good point. Though it wouldn't exactly be destroying.

One of the problems is the neighbor cannot move the fence. After he put it up he piled over two feet of soil on his side. It is a cedar fence. I gather at some point it will rot and the soil dump onto my yard.

Possibly. But I still have a mismatch between the part of my back yard with this fence and the rest of my back property line.

There is no need for a permit for a fence 6' or less. This is 7'. The height is illegal, as he did not file for a permit. There is no need for a setback. With backyards that are 20' x 29 5-3/4" a setback wouldn't make sense. There is a setback for a/c condensers that no one follows. There is no requirement that the good side face the neighbor. It is only fence etiquette.

But far simpler than all of this is to simply slice off the part that is in my yard. Very simple to do.

Don.

(e-mail link at home page bottom).

[Don Wiss]

anything at

You are thinking of a survey in the countryside. This is in the city. They are accurate to 1/4". The surveyor spent quite a bit of time finding the four corners of the backyard. He had already done the survey for this back neighbor. The back neighbor's survey also appears on my survey.

He had to get a survey as he built an extension out the back. When doing my survey the surveyor looked at the new extension with his instrument and said he had put it exactly at the property line. And let me look in and see.

Don.

(e-mail link at home page bottom).

[dadiOH]

Surely you jest. I did fractions of an inch over 40 acres with a plane table and alelaide. I got within 6" over 250 yards on my property with a

1x2 with two nails in the end. __________________

Nevertheless, that is still the reference point.

[gfretwell]

Talk to the neighbor, express your concerns. If he tells you to go f*ck yourself, call code enforcement and ask them to enforce the code. They have the power to make him move the fence or face fines.

[DerbyDad03]

doing anything at

About 25 years ago, I had to include a copy of an offcial survey map of my property when I submitted the plans to build my deck. They wanted a survey map with the deck drawn on it, to scale.

I was as careful as I could be, drawing the deck on the map and then, just to be sure, I measured the "scaled setback" on the map and then went out ba ck and measured the actual setback based on where I would be setting my pos ts.

To my surprise, I physically had about 10 more feet of actual setback than the map showed. How the heck could I have screwed up drawing the deck on th e map that badly? I check my drawing and everything was fine.

Then I went out front and measured from the property line to the front of t he house and found that I had 10 less feet of actual lawn than the map show ed. It turned out that they had drawn the house on the map 10 feet further back than is actually was.

The survey had been done about 6 months earlier when I bought the house, so I called the survey company and explained the issue. A few days later one of my stay-at-home neighbors said that they had a crew of 4 guys walking ar ound the neighborhood, climbing fences and looking under bushes for stakes and markers.

It seems that I shook 'em up pretty good! I later found out that they event ually found a "permanent" survey marker about a block from my house and red rew my map based on that. When I got the new map, it measured to within inc hes of where my house physically sat.

[dadiOH]

Both surveys show the line in the same place, right? And despite that, they encroached on your property, right? Question: why did you not stop them?

I have no idea what the law is relative to this but law is usually rational and follows common sense. Those lead me to two beliefs:

1. You can't just chop away
2. You can force them to move the fence and reimburse you for any expenses you may incur in doing so.

What they *should* have done is set the fence into *their* property to bypass the pole. That or get the utility company to move the pole sufficiently onto their lot so they could put the fence on the line and clear the pole.

If you haven't already done so, sending them a registered letter with return receipt might be in order; just state that their recent construction has encroached on your property and tell them to rectify it within x days/weeks.

After that, lawyer time, good luck.

[Don Wiss]

There is no question that I can have him get in trouble for having the fence too high. But I am not aware of any building code that says the city will step in if the fence if over the line. But maybe there is.

I just e-mailed the contractor. I had been trying to not rub him the wrong way. He has some capabilities that not all contractors have. I have been hoping to hire him for projects at my house. This e-mail may burn my bridges with him.

Don.

(e-mail link at home page bottom). Don. (e-mail link at home page bottom).

[Don Wiss]

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.

(e-mail link at home page bottom).

[chaniarts]

perhaps. will parts of the fence fail because you sliced off 1.5" of a

3.5" post, and will you have to pay to make your neighbor "whole"?