On 06-27-2013 16:34, firstname.lastname@example.org wrote:
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.
On Fri, 28 Jun 2013 05:42:54 -0700 (PDT), " email@example.com"
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
On Thursday, June 27, 2013 10:28:18 PM UTC-4, Ashton Crusher wrote:
If I am understanding the situation correctly - based on what Don has writt
en - it wasn't a mistake.
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
OK, if we ignore the "who is they" issue, the key words from his OP are "I
showed them where the line was. But they went ahead and did this..."
Later, when you (Ashton) said:
"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
"NO. I stopped them from putting it 2 3/4" over and told them to not put an
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
1-3/4" over. If there is a bow in the tape you can't get an accurate
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. www.donwiss.com (e-mail link at home page bottom).
On Fri, 28 Jun 2013 06:57:10 -0700 (PDT), DerbyDad03
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.
On Mon, 24 Jun 2013 17:24:34 -0700 (PDT), " firstname.lastname@example.org"
De minimus, non curat lex. The law does not cure minimal
[problems]. This is a recognized principle in the law.
What is too small to cure is a topic of its own. Lots of factors
make a difference. I this were the Ponderosa ranch with 50,000 acres,
an inch and a half would mean nothing.
I don't know if I posted this or not. When the guy put the fence
around my backyard, to avoid the downspout, he put ONE post an inch or
two onto my townhouse neighbor's property. He put the next post and
all the others right where they should be, and so the 8 feet from one
post to the other is at an angle, In our case, it's a corner of the
yard between the deck, the house wall, and the fence, where no one
goes except to connect the garden hose. No one has complained. I
wouldn't complain either if I had the house next door.
in this litigious age, I would ask your insurance agent if there are any
legal ramifications to this encroachment. ie, someone hurts themselves
on the neighbors fence, but it's in your yard, who is responsible?
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. A court could rule that you effectively gave
them an easement by doing nothing to stop it when you could have. Not
knowing how the court might rule I'd not be cutting up someone's
fence. Why can't you just line your extension up with their fence? Is
it a concern that part will be on their property? If so, you and your
neighbor can just give each other a written easement for the others
fence. I don't recall the specifics but I'm pretty sure I've seen
something in the legal documents when I bought my house and it was
about how the fence was built straddling the property lines of
something or other about it to cover this issue.
Is this fence a one sided fence with posts on one side and finished surface
on the other? In many regions one is required to place the posts on the
owners property and have the finished side facing the neighbor's side on the
property line. If a dispute is involved the person with the posts is deemed
the owner. Two sided fences where both sides are finished are often built
straddling on the property line and the costs shared by both property
owners. If one builds a fence at his own cost it is normally built on their
own land, that way they have full control over it. My fences are built about
2" inside my property line so I own them fully.
You may want to contact your local authorities as fencing is a constant
source of disputes that they have to police, they will provide the rules and
regulations that cover fencing in your area. You may find that you own the
fence your neighbor built, but get a ruling first.
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