On Thu, 27 Jun 2013 06:13:28 -0700 (PDT), "
wrote:


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.


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
1.5 feet there would be something worth worrying about. Also, lets
say machinery needed to be moved in between that fence and the house
and losing 1.5" means the machinery no longer fits and the guy can't
run his business. In that case equity would be to move the fence.