DIYbanter - View Single Post - neighbor's fence partially on my property

Tony Hwang

wrote:
On Friday, June 28, 2013 6:00:11 PM UTC-4, Ashton Crusher wrote:
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.

Good grief! Do I have to spell out everything
for you? He has NO EASEMENT. HE had no PERMISSION. In fact,
his architect and contractor were specifically told
that where they were about to install the fence was on the wrong
property. And in the cases where you build something on someone
else property WITHOUT permission, it is in clear violation of the law.

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.

Yeah, like 20 years. It's been two months. And the party also has
to pay the real estate taxes on the property for those 20 years.
The neighbor isn't paying the taxes, Don is.

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.

I disagree. It'a about as clear a case as exists, about
who is right, who is wrong, who owns the property. If
courts like shysters get away with this, chaos would soon
take over.

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.

BS. Again, you think courts just start out with some concept
of "fairness". That the judge is going to think "Gee, it really
ain't that bad, it would be an inconvenience for the bad guy
to move it, etc. That is precisely my point. Judges don't go
there, unless it's some issue that isn't readily covered and
solved by existing law and case law. And when you deliberately
build a fence on another person't property, it's simple. You
can't. The fence goes.

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.

The silly thinking here is that it's OK for some skunk
to violate a person's property rights and build a fence
on someone else's property.

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?

Very likely the contractor would lose. The contractor is the
professional. If the contractor was unwilling to build the
fence where the owner wanted it, he should have told him so.
He should not have entered into a contract and then disregard
the contract and do what he pleases. The contractor kept
hidden what he was really going to do. If he had been honest,
the owner could have called other contractors to find one
that would do what he wanted.

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....

Good grief! Now you're trying to conflate a hypothetical
case where a contractor builds a fence 1.5" over on property the
guy owns, with one where the fence is built on SOMEONE ELSES
PROPERTY.

Hi,
If it was 1 and half foot over I'd do something but mere 1.5"?, Hmmm...