On Saturday, June 29, 2013 9:14:28 AM UTC-4, 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.





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.

I agree, if it is 1 in or 3 feet, to me they are the same. why you build on other people property? and he has told them not to and showed them why. I have exactly same situation, the previous neighbor built it on my property. My current neighbor and I inherited this problem that is why we are ok with it even it is not fair; but his case is totally different, they could have avoided building that