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Ashton Crusher[_2_] Ashton Crusher[_2_] is offline
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Default neighbor's fence partially on my property

On Thu, 27 Jun 2013 13:34:37 -0700 (PDT), "
wrote:

On Thursday, June 27, 2013 3:02:17 PM UTC-4, Ashton Crusher wrote:
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.



Why isn't it the same? As the facts are presented here, there is no disagreement
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 ahead and built the fence on Don's property anyway. Any monkey with a
transit would know the fence was on the wrong property.




The use of the equity law is often for cases when the award of money

makes no sense.



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

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.


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"?



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.


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

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.


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.



Good luck with that.