On Monday, June 24, 2013 5:24:34 PM UTC-7, wrote:
On Monday, June 24, 2013 3:30:18 PM UTC-4, Ashton Crusher wrote:

On Mon, 24 Jun 2013 13:32:55 -0400, Don Wiss



wrote:







On Mon, 24 Jun 2013 13:24:14 -0400, "dadiOH" wrote:







Both surveys show the line in the same place, right?







Correct.







And despite that, they



encroached on your property, right? Question: why did you not stop them?







I stopped them when they tried to put it 2 3/4" over. I showed them where



the line is. I assumed that they then did it right. Only now have I



discovered that they didn't. And the discovery was made when my fence guy



put in the side fence and it didn't line up with this fence. So we measured



to see what was going on.







Don. www.donwiss.com (e-mail link at home page bottom).











That would slightly change my prior response since you did raise the



issue with them. That said, I think you would still lose if this goes



to court. There is only the most trivial of harm to you from what's



happened and it seems like the issue with your fence could have been



easily fixed at the time it was built had the contractor cared how it



was going to line up - apparently he didn't or he would have spotted



it before putting up your fence. In this kind of civil dispute



there's a good chance the court is not going to focus on



technicalities of the law, otherwise they would order a fence moved



even if encroached even a sixteenth of an inch over the property line.



The court is more likely to look at what an equitably/fair solution



would be after hearing from all parties. If I were the judge knowing



what I know at this point I'd not be likely to order the fence moved.



But another person as judge, god only knows what someone else might



decide. I'm having a hard time picturing how/why your fence was not



able to line up with this one.



You're misinformed as to what courts and judges do. They aren't

there to figure out what is fair.

They are there to apply the rule of law. And I think you will find

plenty of case law that says you can't build something on another

person's property. 1.5" isn't much, but it's also clear why they did

it. By doing it, they got their fence around a telephone poll.

IMO, this would be a slam dunk win, and the fence would have to be

moved. To follow your reasoning, a neighbor could build his house

where it's not supposed to be, then because it's an inconvenience to

redo it, he gets away with it.

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

wrote:
On Monday, June 24, 2013 3:30:18 PM UTC-4, Ashton Crusher wrote:
On Mon, 24 Jun 2013 13:32:55 -0400, Don Wiss

wrote:



On Mon, 24 Jun 2013 13:24:14 -0400, "dadiOH" wrote:



Both surveys show the line in the same place, right?



Correct.



And despite that, they

encroached on your property, right? Question: why did you not stop them?



I stopped them when they tried to put it 2 3/4" over. I showed them where

the line is. I assumed that they then did it right. Only now have I

discovered that they didn't. And the discovery was made when my fence guy

put in the side fence and it didn't line up with this fence. So we measured

to see what was going on.



Don. www.donwiss.com (e-mail link at home page bottom).





That would slightly change my prior response since you did raise the

issue with them. That said, I think you would still lose if this goes

to court. There is only the most trivial of harm to you from what's

happened and it seems like the issue with your fence could have been

easily fixed at the time it was built had the contractor cared how it

was going to line up - apparently he didn't or he would have spotted

it before putting up your fence. In this kind of civil dispute

there's a good chance the court is not going to focus on

technicalities of the law, otherwise they would order a fence moved

even if encroached even a sixteenth of an inch over the property line.

The court is more likely to look at what an equitably/fair solution

would be after hearing from all parties. If I were the judge knowing

what I know at this point I'd not be likely to order the fence moved.

But another person as judge, god only knows what someone else might

decide. I'm having a hard time picturing how/why your fence was not

able to line up with this one.

You're misinformed as to what courts and judges do. They aren't
there to figure out what is fair.
They are there to apply the rule of law. And I think you will find
plenty of case law that says you can't build something on another
person's property. 1.5" isn't much, but it's also clear why they did
it. By doing it, they got their fence around a telephone poll.
IMO, this would be a slam dunk win, and the fence would have to be
moved. To follow your reasoning, a neighbor could build his house
where it's not supposed to be, then because it's an inconvenience to
redo it, he gets away with it.

Hi,
Ever heard there is no law but exceptions?

On Wed, 26 Jun 2013 21:09:07 -0700 (PDT), Ivan Vegvary
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 then the first guy benefits while the last guy loses. In a case
like that will he be able to use the 1 foot at the first house? If,
say, he has a family picnic, could he set up the food tables on the 1
foot of the first guys yard? Could he set up a narrow tennis court in
his yard?

On Thursday, June 27, 2013 12:09:07 AM UTC-4, Ivan Vegvary wrote:
On Monday, June 24, 2013 5:24:34 PM UTC-7, wrote:

On Monday, June 24, 2013 3:30:18 PM UTC-4, Ashton Crusher wrote:



On Mon, 24 Jun 2013 13:32:55 -0400, Don Wiss







wrote:















On Mon, 24 Jun 2013 13:24:14 -0400, "dadiOH" wrote:















Both surveys show the line in the same place, right?















Correct.















And despite that, they







encroached on your property, right? Question: why did you not stop them?















I stopped them when they tried to put it 2 3/4" over. I showed them where







the line is. I assumed that they then did it right. Only now have I







discovered that they didn't. And the discovery was made when my fence guy







put in the side fence and it didn't line up with this fence. So we measured







to see what was going on.















Don. www.donwiss.com (e-mail link at home page bottom).























That would slightly change my prior response since you did raise the







issue with them. That said, I think you would still lose if this goes







to court. There is only the most trivial of harm to you from what's







happened and it seems like the issue with your fence could have been







easily fixed at the time it was built had the contractor cared how it







was going to line up - apparently he didn't or he would have spotted







it before putting up your fence. In this kind of civil dispute







there's a good chance the court is not going to focus on







technicalities of the law, otherwise they would order a fence moved







even if encroached even a sixteenth of an inch over the property line..







The court is more likely to look at what an equitably/fair solution







would be after hearing from all parties. If I were the judge knowing







what I know at this point I'd not be likely to order the fence moved.







But another person as judge, god only knows what someone else might







decide. I'm having a hard time picturing how/why your fence was not







able to line up with this one.







You're misinformed as to what courts and judges do. They aren't



there to figure out what is fair.



They are there to apply the rule of law. And I think you will find



plenty of case law that says you can't build something on another



person's property. 1.5" isn't much, but it's also clear why they did



it. By doing it, they got their fence around a telephone poll.



IMO, this would be a slam dunk win, and the fence would have to be



moved. To follow your reasoning, a neighbor could build his house



where it's not supposed to be, then because it's an inconvenience to



redo it, he gets away with it.



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.

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.

The use of the equity law is often for cases when the award of money
makes no sense. 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. 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. 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.

On Thursday, June 27, 2013 3:02:17 PM UTC-4, Ashton Crusher wrote:

....snip...


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.



The use of the equity law is often for cases when the award of money

makes no sense. Show any real harm from the fence being 1.5" off.

How about 127 posts in a.h.r?

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. 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. 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.

On Thu, 27 Jun 2013 12:16:39 -0700 (PDT), DerbyDad03
wrote:

On Thursday, June 27, 2013 3:02:17 PM UTC-4, Ashton Crusher wrote:

...snip...


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.



The use of the equity law is often for cases when the award of money

makes no sense. Show any real harm from the fence being 1.5" off.

How about 127 posts in a.h.r?

Is

It keeps people off the streets,... that's got to be a good thing....

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.

On Wed, 26 Jun 2013 22:13:02 -0600, Tony Hwang
wrote:

wrote:
On Monday, June 24, 2013 3:30:18 PM UTC-4, Ashton Crusher wrote:
On Mon, 24 Jun 2013 13:32:55 -0400, Don Wiss

wrote:



On Mon, 24 Jun 2013 13:24:14 -0400, "dadiOH" wrote:



Both surveys show the line in the same place, right?



Correct.



And despite that, they

encroached on your property, right? Question: why did you not stop them?



I stopped them when they tried to put it 2 3/4" over. I showed them where

the line is. I assumed that they then did it right. Only now have I

discovered that they didn't. And the discovery was made when my fence guy

put in the side fence and it didn't line up with this fence. So we measured

to see what was going on.



Don. www.donwiss.com (e-mail link at home page bottom).





That would slightly change my prior response since you did raise the

issue with them. That said, I think you would still lose if this goes

to court. There is only the most trivial of harm to you from what's

happened and it seems like the issue with your fence could have been

easily fixed at the time it was built had the contractor cared how it

was going to line up - apparently he didn't or he would have spotted

it before putting up your fence. In this kind of civil dispute

there's a good chance the court is not going to focus on

technicalities of the law, otherwise they would order a fence moved

even if encroached even a sixteenth of an inch over the property line.

The court is more likely to look at what an equitably/fair solution

would be after hearing from all parties. If I were the judge knowing

what I know at this point I'd not be likely to order the fence moved.

But another person as judge, god only knows what someone else might

decide. I'm having a hard time picturing how/why your fence was not

able to line up with this one.

You're misinformed as to what courts and judges do. They aren't
there to figure out what is fair.
They are there to apply the rule of law. And I think you will find
plenty of case law that says you can't build something on another
person's property. 1.5" isn't much, but it's also clear why they did
it. By doing it, they got their fence around a telephone poll.
IMO, this would be a slam dunk win, and the fence would have to be
moved. To follow your reasoning, a neighbor could build his house
where it's not supposed to be, then because it's an inconvenience to
redo it, he gets away with it.

Hi,
Ever heard there is no law but exceptions?
That's what minor variances and adjustments are for.

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.

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.


Good luck with that.

On Thu, 27 Jun 2013 21:28:45 -0400, wrote:

On Wed, 26 Jun 2013 22:13:02 -0600, Tony Hwang
wrote:

wrote:
On Monday, June 24, 2013 3:30:18 PM UTC-4, Ashton Crusher wrote:
On Mon, 24 Jun 2013 13:32:55 -0400, Don Wiss

wrote:



On Mon, 24 Jun 2013 13:24:14 -0400, "dadiOH" wrote:



Both surveys show the line in the same place, right?



Correct.



And despite that, they

encroached on your property, right? Question: why did you not stop them?



I stopped them when they tried to put it 2 3/4" over. I showed them where

the line is. I assumed that they then did it right. Only now have I

discovered that they didn't. And the discovery was made when my fence guy

put in the side fence and it didn't line up with this fence. So we measured

to see what was going on.



Don. www.donwiss.com (e-mail link at home page bottom).





That would slightly change my prior response since you did raise the

issue with them. That said, I think you would still lose if this goes

to court. There is only the most trivial of harm to you from what's

happened and it seems like the issue with your fence could have been

easily fixed at the time it was built had the contractor cared how it

was going to line up - apparently he didn't or he would have spotted

it before putting up your fence. In this kind of civil dispute

there's a good chance the court is not going to focus on

technicalities of the law, otherwise they would order a fence moved

even if encroached even a sixteenth of an inch over the property line.

The court is more likely to look at what an equitably/fair solution

would be after hearing from all parties. If I were the judge knowing

what I know at this point I'd not be likely to order the fence moved.

But another person as judge, god only knows what someone else might

decide. I'm having a hard time picturing how/why your fence was not

able to line up with this one.

You're misinformed as to what courts and judges do. They aren't
there to figure out what is fair.
They are there to apply the rule of law. And I think you will find
plenty of case law that says you can't build something on another
person's property. 1.5" isn't much, but it's also clear why they did
it. By doing it, they got their fence around a telephone poll.
IMO, this would be a slam dunk win, and the fence would have to be
moved. To follow your reasoning, a neighbor could build his house
where it's not supposed to be, then because it's an inconvenience to
redo it, he gets away with it.

Hi,
Ever heard there is no law but exceptions?
That's what minor variances and adjustments are for.


Which is exactly what a 1.5" mistake is.

On 06-27-2013 16:34, wrote:
Judges follow the law.

Having been in court several times, I can say, "Not necessarily."

When the lease had the usual clause about tenant paying collection
costs, lawyer fees, etc., The judge made them pay the skipped rent.
interest and fees were omitted. Never got the rent either. Lawyer
offered to go after that for MORE fees.

Even worse, a judge in a HOA dispute said that although he was
"concerned about the clear violation of covenants" he was going
to rule for the defendent because the paperwork ruling for the plaintiff
would take too long.

I asked the plaintiff's lawyer, "Did he just say ON THE RECORD
that he doesn't intend to do his job?"

Lawyer shrugged and said, "Yeah, but what can you do?"

--
Wes Groleau

Change is inevitable.
Liberals need to learn that €œinevitable" is not a synonym for €œgood."
Conservatives should learn that €œinevitable" is not a synonym for €œbad.€�

On Thu, 27 Jun 2013 19:28:18 -0700, Ashton Crusher
wrote:





Which is exactly what a 1.5" mistake is.

Is a 1.5" mistake the same as a 1.5" I know its wrong but I'm doing it
anyway? Intent may be a factor.

On Fri, 28 Jun 2013 01:59:58 -0400, Ed Pawlowski wrote:

On Thu, 27 Jun 2013 19:28:18 -0700, Ashton Crusher
wrote:





Which is exactly what a 1.5" mistake is.

Is a 1.5" mistake the same as a 1.5" I know its wrong but I'm doing it
anyway? Intent may be a factor.

I could answer that but it would just be my opinion and that's what's
got this whole discussion in a tizzy. Combine that with the notion
some people have that judges "just follow the law". Jeez, haven't you
people ever been to traffic court? The lower you go in the court
hierarchy the more the judges just do whatever the hell they feel like
doing. Thinking "I'm right, therefore I'll win" is a fools game.

Yes, Intent could be a factor. But keep in mind that the parties to
the suit will not necessarily be the guy with the intent/the guy that
made the mistake. Are you going to sue the guy who owns the fence or
the guy who built it?

On Thu, 27 Jun 2013 23:46:13 -0700, Ashton Crusher
wrote:




I could answer that but it would just be my opinion and that's what's
got this whole discussion in a tizzy. Combine that with the notion
some people have that judges "just follow the law". Jeez, haven't you
people ever been to traffic court?

My favorite was many years ago in Philadelphia. Must have been 150 of
us in court that morning. Judge comes in and the Bailiff says "all
rise". Judge walks to the bench and asks "how do you plead" Everyone
(what a surprise) said NOT GULTY. Judge said "dismissed"
He probably had an early Tee time.

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 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. That is what the neigbor 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?

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.

On Thursday, June 27, 2013 10:28:18 PM UTC-4, Ashton Crusher wrote:
On Thu, 27 Jun 2013 21:28:45 -0400, wrote:



On Wed, 26 Jun 2013 22:13:02 -0600, Tony Hwang

wrote:



wrote:

On Monday, June 24, 2013 3:30:18 PM UTC-4, Ashton Crusher wrote:

On Mon, 24 Jun 2013 13:32:55 -0400, Don Wiss



wrote:







On Mon, 24 Jun 2013 13:24:14 -0400, "dadiOH" wrote:







Both surveys show the line in the same place, right?







Correct.







And despite that, they



encroached on your property, right? Question: why did you not stop them?







I stopped them when they tried to put it 2 3/4" over. I showed them where



the line is. I assumed that they then did it right. Only now have I



discovered that they didn't. And the discovery was made when my fence guy



put in the side fence and it didn't line up with this fence. So we measured



to see what was going on.







Don. www.donwiss.com (e-mail link at home page bottom).











That would slightly change my prior response since you did raise the



issue with them. That said, I think you would still lose if this goes



to court. There is only the most trivial of harm to you from what's



happened and it seems like the issue with your fence could have been



easily fixed at the time it was built had the contractor cared how it



was going to line up - apparently he didn't or he would have spotted



it before putting up your fence. In this kind of civil dispute



there's a good chance the court is not going to focus on



technicalities of the law, otherwise they would order a fence moved



even if encroached even a sixteenth of an inch over the property line.



The court is more likely to look at what an equitably/fair solution



would be after hearing from all parties. If I were the judge knowing



what I know at this point I'd not be likely to order the fence moved.



But another person as judge, god only knows what someone else might



decide. I'm having a hard time picturing how/why your fence was not



able to line up with this one.



You're misinformed as to what courts and judges do. They aren't

there to figure out what is fair.

They are there to apply the rule of law. And I think you will find

plenty of case law that says you can't build something on another

person's property. 1.5" isn't much, but it's also clear why they did

it. By doing it, they got their fence around a telephone poll.

IMO, this would be a slam dunk win, and the fence would have to be

moved. To follow your reasoning, a neighbor could build his house

where it's not supposed to be, then because it's an inconvenience to

redo it, he gets away with it.



Hi,

Ever heard there is no law but exceptions?

That's what minor variances and adjustments are for.





Which is exactly what a 1.5" mistake is.

Despite expressing opinions, you haven't even read the
facts. As the facts are stated, it was most definitely
*not* a mistake.

On Thursday, June 27, 2013 10:28:18 PM UTC-4, Ashton Crusher wrote:
On Thu, 27 Jun 2013 21:28:45 -0400, wrote:



On Wed, 26 Jun 2013 22:13:02 -0600, Tony Hwang

wrote:



wrote:

On Monday, June 24, 2013 3:30:18 PM UTC-4, Ashton Crusher wrote:

On Mon, 24 Jun 2013 13:32:55 -0400, Don Wiss



wrote:







On Mon, 24 Jun 2013 13:24:14 -0400, "dadiOH" wrote:







Both surveys show the line in the same place, right?







Correct.







And despite that, they



encroached on your property, right? Question: why did you not stop them?







I stopped them when they tried to put it 2 3/4" over. I showed them where



the line is. I assumed that they then did it right. Only now have I



discovered that they didn't. And the discovery was made when my fence guy



put in the side fence and it didn't line up with this fence. So we measured



to see what was going on.







Don. www.donwiss.com (e-mail link at home page bottom).











That would slightly change my prior response since you did raise the



issue with them. That said, I think you would still lose if this goes



to court. There is only the most trivial of harm to you from what's



happened and it seems like the issue with your fence could have been



easily fixed at the time it was built had the contractor cared how it



was going to line up - apparently he didn't or he would have spotted



it before putting up your fence. In this kind of civil dispute



there's a good chance the court is not going to focus on



technicalities of the law, otherwise they would order a fence moved



even if encroached even a sixteenth of an inch over the property line.



The court is more likely to look at what an equitably/fair solution



would be after hearing from all parties. If I were the judge knowing



what I know at this point I'd not be likely to order the fence moved..



But another person as judge, god only knows what someone else might



decide. I'm having a hard time picturing how/why your fence was not



able to line up with this one.



You're misinformed as to what courts and judges do. They aren't

there to figure out what is fair.

They are there to apply the rule of law. And I think you will find

plenty of case law that says you can't build something on another

person's property. 1.5" isn't much, but it's also clear why they did

it. By doing it, they got their fence around a telephone poll.

IMO, this would be a slam dunk win, and the fence would have to be

moved. To follow your reasoning, a neighbor could build his house

where it's not supposed to be, then because it's an inconvenience to

redo it, he gets away with it.



Hi,

Ever heard there is no law but exceptions?

That's what minor variances and adjustments are for.





Which is exactly what a 1.5" mistake is.

If I am understanding the situation correctly - based on what Don has written - it wasn't a mistake.

Let's recap:

From the first post in this thread:

"The back yard neighbor has put up a fence that is 1 1/2" on my property.
They have a survey. I also have a survey from the same surveyor. I showed
them where the line was. But they went ahead and did this in order to have
the entire top fit behind a phone pole that is on their property."

Key point: Don said the neighbor did it, but later he "clarified" that and said he didn't talk to the neighbor, he talked to the contractor.

*Time out for some defense lawyer speak: If he started this thread with a false/unclear statement, can we really trust anything he says after that? He first said "The back yard neighbor..." followed immediately by "_They_ have a survey" and mentioned a pole "on their property". At that point in the thread it was not clear who "they" refered to, but we all assumed it was the neighbor. Only later did he clarify that "they" meant the contractor. That also mean that the statement about "on their property" was essentially false.

OK, if we ignore the "who is they" issue, the key words from his OP are "I showed them where the line was. But they went ahead and did this..."

Later, when you (Ashton) said:

"I think you would be on shaky legal grounds. From what you said you knew when it was being built that it was on your property yet you let them build it there"

Don replied:

"NO. I stopped them from putting it 2 3/4" over and told them to not put any
of it on my property. I showed them where the line is."

So, if we choose to believe what Don has posted, as soon as they (the contractor) started to install the fence 2 3/4" over the property, he talked to the contractor and informed him as to where the property line was.

If, in fact, the contractor installed the fence 1 1/2" (later reduced, by Don, to 1 1/4") in order to clear the aforementioned pole, then there was no "mistake". The fence was intentionally installed on his property.

On Fri, 28 Jun 2013, DerbyDad03 wrote:

If, in fact, the contractor installed the fence 1 1/2" (later reduced, by
Don, to 1 1/4") in order to clear the aforementioned pole, then there was
no "mistake". The fence was intentionally installed on his property.

I recruited someone and with my new 30' tape measure I took two
measurements. At one spot it is 2" over. At another spot it was 1-1/2" to
1-3/4" over. If there is a bow in the tape you can't get an accurate
measurement.

It appears to not be straight. In addition to the pole, they also had to
clear a silver maple that is in their yard, but not behind my yard.

Don. www.donwiss.com (e-mail link at home page bottom).

On Monday, June 24, 2013 9:56:44 AM UTC-5, Don Wiss wrote:
The back yard neighbor has put up a fence that is 1 1/2" on my property. They have a survey. I also have a survey from the same surveyor. I showed them where the line was. But they went ahead and did this in order to have the entire top fit behind a phone pole that is on their property. Had they not faced the good side towards themselves, it would not have been an issue. All that is on my property are the 4x4 posts and the top. Do I have the right to slice the posts and top right at the line? The fence back is attached to the fence sides, which would give it stability. The reason for doing this is the properties are staggered. I'm adding a fence to the back where this fence isn't, and it won't line up. I know I have the right to cut off tree limbs that hang over. But do I also have the right to cut back a fence that is hanging over? Don. www.donwiss.com (e-mail link at home page bottom).

Have you actually talked to the neighbor directly yet????????????

On Fri, 28 Jun 2013 11:44:19 -0700 (PDT), "
wrote:

Have you actually talked to the neighbor directly yet????????????

Some people have neighbor bogey. An exaggerated fear, like people that
have "convict bogey" - an exaggerated fear of convicted felons.

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....

On Fri, 28 Jun 2013 05:42:54 -0700 (PDT), "
wrote:

On Thursday, June 27, 2013 10:28:18 PM UTC-4, Ashton Crusher wrote:
On Thu, 27 Jun 2013 21:28:45 -0400, wrote:



On Wed, 26 Jun 2013 22:13:02 -0600, Tony Hwang

wrote:



wrote:

On Monday, June 24, 2013 3:30:18 PM UTC-4, Ashton Crusher wrote:

On Mon, 24 Jun 2013 13:32:55 -0400, Don Wiss



wrote:







On Mon, 24 Jun 2013 13:24:14 -0400, "dadiOH" wrote:







Both surveys show the line in the same place, right?







Correct.







And despite that, they



encroached on your property, right? Question: why did you not stop them?







I stopped them when they tried to put it 2 3/4" over. I showed them where



the line is. I assumed that they then did it right. Only now have I



discovered that they didn't. And the discovery was made when my fence guy



put in the side fence and it didn't line up with this fence. So we measured



to see what was going on.







Don. www.donwiss.com (e-mail link at home page bottom).











That would slightly change my prior response since you did raise the



issue with them. That said, I think you would still lose if this goes



to court. There is only the most trivial of harm to you from what's



happened and it seems like the issue with your fence could have been



easily fixed at the time it was built had the contractor cared how it



was going to line up - apparently he didn't or he would have spotted



it before putting up your fence. In this kind of civil dispute



there's a good chance the court is not going to focus on



technicalities of the law, otherwise they would order a fence moved



even if encroached even a sixteenth of an inch over the property line.



The court is more likely to look at what an equitably/fair solution



would be after hearing from all parties. If I were the judge knowing



what I know at this point I'd not be likely to order the fence moved.



But another person as judge, god only knows what someone else might



decide. I'm having a hard time picturing how/why your fence was not



able to line up with this one.



You're misinformed as to what courts and judges do. They aren't

there to figure out what is fair.

They are there to apply the rule of law. And I think you will find

plenty of case law that says you can't build something on another

person's property. 1.5" isn't much, but it's also clear why they did

it. By doing it, they got their fence around a telephone poll.

IMO, this would be a slam dunk win, and the fence would have to be

moved. To follow your reasoning, a neighbor could build his house

where it's not supposed to be, then because it's an inconvenience to

redo it, he gets away with it.



Hi,

Ever heard there is no law but exceptions?

That's what minor variances and adjustments are for.





Which is exactly what a 1.5" mistake is.

Despite expressing opinions, you haven't even read the
facts. As the facts are stated, it was most definitely
*not* a mistake.


Are you sure? Yes, the initial error was pointed out. Do we know
that the guy who was party to the conversation was the actual guy
digging the holes? We know he did move the first erroneous posts
back. Not enough apparently. But can we be sure there was not a
misunderstanding between the OP and the contractor as to what was to
be moved back? The OP's intent was that NOTHING encroach but perhaps
teh contractor thought the OP meant that he didn't want the face
boards encroaching but didn't care if the posts did. Or maybe he
intended that nothing encroach but he did the math wrong when he
figured how far back he needed to move things. What do you suppose
will be testified to in court? I have seen many instances of this
kind of miscommunication and it's certainly within the realm of
possibility here. So I again offer MY opinion that if this went to
court the judge would say "You're here to complain about a 1.5"
accouchement!!! Case Dismissed, or perhaps "I'll award you $150 for a
counseling session".

On Fri, 28 Jun 2013 06:57:10 -0700 (PDT), DerbyDad03
wrote:

On Thursday, June 27, 2013 10:28:18 PM UTC-4, Ashton Crusher wrote:
On Thu, 27 Jun 2013 21:28:45 -0400, wrote:



On Wed, 26 Jun 2013 22:13:02 -0600, Tony Hwang

wrote:



wrote:

On Monday, June 24, 2013 3:30:18 PM UTC-4, Ashton Crusher wrote:

On Mon, 24 Jun 2013 13:32:55 -0400, Don Wiss



wrote:







On Mon, 24 Jun 2013 13:24:14 -0400, "dadiOH" wrote:







Both surveys show the line in the same place, right?







Correct.







And despite that, they



encroached on your property, right? Question: why did you not stop them?







I stopped them when they tried to put it 2 3/4" over. I showed them where



the line is. I assumed that they then did it right. Only now have I



discovered that they didn't. And the discovery was made when my fence guy



put in the side fence and it didn't line up with this fence. So we measured



to see what was going on.







Don. www.donwiss.com (e-mail link at home page bottom).











That would slightly change my prior response since you did raise the



issue with them. That said, I think you would still lose if this goes



to court. There is only the most trivial of harm to you from what's



happened and it seems like the issue with your fence could have been



easily fixed at the time it was built had the contractor cared how it



was going to line up - apparently he didn't or he would have spotted



it before putting up your fence. In this kind of civil dispute



there's a good chance the court is not going to focus on



technicalities of the law, otherwise they would order a fence moved



even if encroached even a sixteenth of an inch over the property line.



The court is more likely to look at what an equitably/fair solution



would be after hearing from all parties. If I were the judge knowing



what I know at this point I'd not be likely to order the fence moved.



But another person as judge, god only knows what someone else might



decide. I'm having a hard time picturing how/why your fence was not



able to line up with this one.



You're misinformed as to what courts and judges do. They aren't

there to figure out what is fair.

They are there to apply the rule of law. And I think you will find

plenty of case law that says you can't build something on another

person's property. 1.5" isn't much, but it's also clear why they did

it. By doing it, they got their fence around a telephone poll.

IMO, this would be a slam dunk win, and the fence would have to be

moved. To follow your reasoning, a neighbor could build his house

where it's not supposed to be, then because it's an inconvenience to

redo it, he gets away with it.



Hi,

Ever heard there is no law but exceptions?

That's what minor variances and adjustments are for.





Which is exactly what a 1.5" mistake is.

If I am understanding the situation correctly - based on what Don has written - it wasn't a mistake.

Let's recap:

From the first post in this thread:

"The back yard neighbor has put up a fence that is 1 1/2" on my property.
They have a survey. I also have a survey from the same surveyor. I showed
them where the line was. But they went ahead and did this in order to have
the entire top fit behind a phone pole that is on their property."

Key point: Don said the neighbor did it, but later he "clarified" that and said he didn't talk to the neighbor, he talked to the contractor.

*Time out for some defense lawyer speak: If he started this thread with a false/unclear statement, can we really trust anything he says after that? He first said "The back yard neighbor..." followed immediately by "_They_ have a survey" and mentioned a pole "on their property". At that point in the thread it was not clear who "they" refered to, but we all assumed it was the neighbor. Only later did he clarify that "they" meant the contractor. That also mean that the statement about "on their property" was essentially false.

OK, if we ignore the "who is they" issue, the key words from his OP are "I showed them where the line was. But they went ahead and did this..."

Later, when you (Ashton) said:

"I think you would be on shaky legal grounds. From what you said you knew when it was being built that it was on your property yet you let them build it there"

Don replied:

"NO. I stopped them from putting it 2 3/4" over and told them to not put any
of it on my property. I showed them where the line is."

So, if we choose to believe what Don has posted, as soon as they (the contractor) started to install the fence 2 3/4" over the property, he talked to the contractor and informed him as to where the property line was.

If, in fact, the contractor installed the fence 1 1/2" (later reduced, by Don, to 1 1/4") in order to clear the aforementioned pole, then there was no "mistake". The fence was intentionally installed on his property.



Hopefully you read my immediately prior post of a minute ago. There
is plenty of unknowns here in terms of what was said and more
importantly, what was actually understood. In addition, we cannot
rule out that the contractor intended to get it ALL on the right side
of the "line" but made a calculation error.

On Fri, 28 Jun 2013 15:00:11 -0700, Ashton Crusher wrote:

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.

Actually last Summer the contractor told he built them 1" inside the line
to be safe. But there are two brothers. It was the older one that told me
that. The younger one may have been the one overseeing the fence
construction.

Don. www.donwiss.com (e-mail link at home page bottom).

On Fri, 28 Jun 2013 21:19:10 -0400, Don Wiss
wrote:

Actually last Summer the contractor told he built them 1" inside the line
to be safe. But there are two brothers. It was the older one that told me
that. The younger one may have been the one overseeing the fence
construction.


Would you pee your pants if you had to talk to the neighbor?

You seem to blame everybody else, but have not spoken to the owner?

Shall I give you some advice about dealing with a tiger's den?

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.