On Thursday, June 27, 2013 12:09:07 AM UTC-4, Ivan Vegvary wrote:
On Monday, June 24, 2013 5:24:34 PM UTC-7, wrote:
On Monday, June 24, 2013 3:30:18 PM UTC-4, Ashton Crusher wrote:
On Mon, 24 Jun 2013 13:32:55 -0400, Don Wiss
wrote:
On Mon, 24 Jun 2013 13:24:14 -0400, "dadiOH" wrote:
Both surveys show the line in the same place, right?
Correct.
And despite that, they
encroached on your property, right? Question: why did you not stop them?
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. www.donwiss.com (e-mail link at home page bottom).
That would slightly change my prior response since you did raise the
issue with them. That said, I think you would still lose if this goes
to court. There is only the most trivial of harm to you from what's
happened and it seems like the issue with your fence could have been
easily fixed at the time it was built had the contractor cared how it
was going to line up - apparently he didn't or he would have spotted
it before putting up your fence. In this kind of civil dispute
there's a good chance the court is not going to focus on
technicalities of the law, otherwise they would order a fence moved
even if encroached even a sixteenth of an inch over the property line..
The court is more likely to look at what an equitably/fair solution
would be after hearing from all parties. If I were the judge knowing
what I know at this point I'd not be likely to order the fence moved.
But another person as judge, god only knows what someone else might
decide. I'm having a hard time picturing how/why your fence was not
able to line up with this one.
You're misinformed as to what courts and judges do. They aren't
there to figure out what is fair.
They are there to apply the rule of law. And I think you will find
plenty of case law that says you can't build something on another
person's property. 1.5" isn't much, but it's also clear why they did
it. By doing it, they got their fence around a telephone poll.
IMO, this would be a slam dunk win, and the fence would have to be
moved. To follow your reasoning, a neighbor could build his house
where it's not supposed to be, then because it's an inconvenience to
redo it, he gets away with it.
Judges do consider equity, not just the letter of the law. I've had 40 years of boundary surveys under my belt and have been retained as an expert witness over land issues. Consider the following:
300 foot long block with 12 each 25 foot wide properties. We survey 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 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.
Ivan Vegvary
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.