On Fri, 28 Jun 2013 05:41:23 -0700 (PDT), "
wrote:

On Thursday, June 27, 2013 9:42:38 PM UTC-4, Ashton Crusher wrote:
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.



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.

I never said it was a contracts case. I only used that as a simple
example

So simple that it is WRONG.

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.

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,
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?


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.


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.


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....