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.


What you keep missing is the law says you can't build something
on another man's property. The remedy for that is simple. The
fence gets moved. This isn't some innocent mistake. It's an overt
act of the neighbor or his workmen, not giving a damn and deliberately
putting a fence on another man's property, even after being told
by the owner not to. You want to now believe that a court is going
to get into what is "fair", to make the guy infringed prove that
he's really harmed. This is absurd. The court will order the fence
to be moved. And it's not that it's impossible to do, it's a tiny
backyard with what, 40ft of fence? Good grief.