neighbor's fence partially on my property

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

...snip...

How about 127 posts in a.h.r?

It keeps people off the streets,... that's got to be a good thing....

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.

That's what minor variances and adjustments are for.

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

Good luck with that.

Which is exactly what a 1.5" mistake is.

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?"

Is a 1.5" mistake the same as a 1.5" I know its wrong but I'm doing it anyway? Intent may be a factor.

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.

Despite expressing opinions, you haven't even read the facts. As the facts are stated, it was most definitely

rote:

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.

OK, if we ignore the "who is they" issue, the key words from his "I th "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.

I recruited someone and with my new 30' tape measure I took two measurements. At one spot it is 2" over. At another spot it was 1-1/2" to

It appears to not be straight. In addition to the pole, they also had to clear a silver maple that is in their yard, but not behind my yard.

Don.

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.

Have you actually talked to the neighbor directly yet????????????

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....

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".