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[email protected][_2_] trader4@optonline.net[_2_] is offline
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Default neighbor's fence partially on my property

On Monday, July 8, 2013 2:24:47 AM UTC-4, Ashton Crusher wrote:
On Sun, 7 Jul 2013 22:32:16 +0000 (UTC), DerbyDad03

wrote:



Take a deep breath before reading the next sentence because it's a long


one...




So, IYHO, if Homeowner A says to Homeowner B's contractor, within earshot


of a co-worker of said contractor, "Please make sure that you do not


install that fence on my side of the line", but does not obtain a signed


document from the contractor attesting to what was said, and the contractor


and said co-worker in fact do install the fence on Homeowner A's property,


the judge may take the word of the contractor and his crew over the word of


Homeowner A, whose property was encroached upon.






All I'm saying is that the judge can ONLY go by what is testified

to/produced as evidence in court. Combine that with a 1.5" error.


There you go again. From all that's been stated, it's *not* likely
an error.


As

has been said before, if this was a 1.5 FOOT error it would be

something clearly amiss. As one of the other posters mentioned, there

is some legal saying about disputes that are so trivial as to not be

court-worthy. IMHO this is in that general area. Not sure if it was

you or someone else but the question has been asked before, at what

point is an error so meaningless and trivial that you wouldn't argue

about it... 1/32", 1/16", 1/8", half inch, inch, 1.5" or ????



All indications are that it's *not* an error. 1.5" of land use loss
on a tiny NYC backyard is *not* insignificant. A judge is also going
to apply any de minimus concepts differently when the neighbor's workers
were specifically told not to put the fence on the man's property. And
good grief, any halfway competent worker can place a string line and
easily tell that they are encroaching 1.5" on a 20 ft long backyard fence.

Now, you then think it's up to the rightful property owner to then
prove that he's somehow harmed in a significant way for the judge to
do the most simple, direct thing, which is to order the little 20 ft
fence moved. You seem to want to apply some strange, reverse criminal
level of proof standard. It's not enough that the fence is obviously on
the wrong property. The rightful property owner, according to you, must
mount every hurdle, every presumption in favor of the illegal fence,
every excuse, beyond a reasonable doubt, to get that fence removed.

Seems everyone else here thinks it shouldn't and doesn't usually work
that way.









If that was actually the case, then I guess any contractor could do


whatever they wanted and then lie to the judge about having a conversation.


What's the difference between the contractor and crew lying about what was


said in an conversation that actually happened vs. simply making up a


conversation that never occurred? As long as the homeowner can't prove that


he never had the conversation, he would lose right?






It's going to depend on the facts of the case. Yes, they could lie

about having teh conversation but that wasn't what was discussed in

this case - I don't think anyone said anyone else was going to be

lying about whether an actual conversation took place. You have

introduced a new issue, the issue of "WAS" there a conversation. So

if the contractor says there was, and the owner says there wasn't you

have a different circumstance then when both agree there WAS a

conversation but disagree on what they believed was agreed to.



IMHO, if there was a case of Homeowner A said-Homeowner B's contractor


said, and Homeowner A was the one whose property was encroached upon by


Homeowner B's contractor, the judge will side with Homeowner A. To side


with the contractor puts us into the realm of allowing the taking of


someone else's property with nothing more than the contractor saying "Your


Honor, he said I could. Ask my partner, he'll back me up."






So under your theory a confirming witness is to be an assumed liar.


A confirming witness? It's not an independent witness. It's the
jerk or jerk's who built the fence on the wrong property. The folks
who are going to have to move it if they lose. How much credibility
do they have and why would a judge believe them over the property
owner? A lawyer would have a field day with this guy. Questions like
how long have you been building fences? Did you even tell the owner
you were working for that you were going to put the fence on my
client's property? Your an experiences professional, if my client authorized
you to put the fence on his property, why on earth would you do so
without getting it in writing.....? And hence, I agree with Derby,
a judge isn't likely to take his word over that of the homeowner. It's
simple. Which is more likely? That the property owner who is concerned
about 1.5" gave permission, but now changed his mind, or that the
workers who built it where it did not belong are lying?





And I suppose if there is a third confirming witness that will just be

MORE evidence that they are all lying. Interesting theory.



What's interesting is how you want to apply every hurdle imaginable,
every flimsy excuse, in favor of the skunks who built a fence on another
guy's property. You think it's up to the rightful owner to prove beyond
a reasonable doubt, perhaps beyond EVERY doubt, that the fence should go.
All he has to do is tip the balance of the scales beyond 50-50 to win
the case. From everything I see here, he has way more than that on his
side.









With what we know, it remains, IMHO, a losing court battle.




If you choose to believe that the judge will side with the contractor and


his crew over the person whose property was encroached upon.




I don't think the judge is going to "side" with anyone. He's going to

rule based on what is introduced in court. If everyone said "we never

talked to anyone" then it's easy for the judge to simply look at the

magnitude of the error, whether it actually damages the homeowner, and

rule on it. If people all say "we talked about it" but one side says

"... and agreed we could have the posts split the line." but the other

side says "....and agreed it would all be off MY property.", now the

judge might take the possibility of misunderstanding into account ,or

maybe he wouldn't. For some reason you seem to think I'm saying the

contractor will ALSWAYS win so he should ALWAYS cheat. I've never

said that he'll always win, only that I think his odds are good that

he will win this particular one based on the facts in evidence.



All the "facts" in evidence suggest exactly the opposite. So much
so that YOU are inventing "facts" to try to change the case.