Neighbor put up a privacy fence on my yard

[manning]

Check your town ordinance. In ours you have to build 3 inches in from your property line.

Did you know if he comes over to your side to paint/maintain the fence legally you could have him arrested for treaspassing? That's extreme, but it can be done. He is standing on your property.

 

[manning]

For adverse possession, the neighbor also has to believe he owns the property. Here the OP said the neighbor knows it's an encroachment. Usually I direct people to the Budget Board if they wish to receive erroneous legal advice.

Our neighbor has 2 different fences a few feet into our property. They know it's our property so I don't care about any adverse possession issues. They maintain the fences and they look nice. I'm down with it.

Not so. It has to be done in the open for all to see. That is why when a road is used on private land by others who are not owners of it, it has to be blocked for a day, in our state every seven years, to prevent the non owner from claiming it. It has to be blocked for all to see.

Maybe you are thinking of this. Say you have property 150 mile away and don't get there much. A contractor messes up and builds a house on your property.

If you went to see the property after it happened you get to keep the house at no cost to you. You didn't know it happened.

However, if you knew it was happening and don't say anything....you have to pay for the house.

 

[cats mom]

I keep seeing the term easement on here and have never heard it before and I have no clue what it is!!

manning is right about easements often being granted to utility companies, but it could be for other things as well.

Basically an easement is a right given to another person or entity to trespass upon land they do not own. The terms usually include a stipulation that the property owner cannot build on top of an easement.

Or in the case I mentioned earlier, that we could not build on the easement as long as it was exercised regularly, but after a specified period of non-use, the easement was no longer in force.
In our case the easement was to provide access to a canal that ran along the back of our property. The canal co. chose to use the other side of the canal for access, so everyone on our side of the street lucked out.


Researching possible easements is one of the things you're paying for when you have a title search done.

There can also be prescriptive easements (or hostile easements) similar to what folks have already been talking about in this thread re: the fence and encroachment.

 

[corndog]

Not so. It has to be done in the open for all to see. That is why when a road is used on private land by others who are not owners of it, it has to be blocked for a day, in our state every seven years, to prevent the non owner from claiming it. It has to be blocked for all to see.

Maybe you are thinking of this. Say you have property 150 mile away and don't get there much. A contractor messes up and builds a house on your property.

If you went to see the property after it happened you get to keep the house at no cost to you. You didn't know it happened.

However, if you knew it was happening and don't say anything....you have to pay for the house.

Your example is contract law, not real estate.

Maybe I'm thinking of the fact that I'm a real estate lawyer?

 

[barkley]

Not so. It has to be done in the open for all to see. That is why when a road is used on private land by others who are not owners of it, it has to be blocked for a day, in our state every seven years, to prevent the non owner from claiming it. It has to be blocked for all to see.

Maybe you are thinking of this. Say you have property 150 mile away and don't get there much. A contractor messes up and builds a house on your property.

If you went to see the property after it happened you get to keep the house at no cost to you. You didn't know it happened.

However, if you knew it was happening and don't say anything....you have to pay for the house.

how the 'h' does someone block a road for a day if it's the only access (by virtue of the easement) another has to their property (let alone the only access for emergency vehicals)?

i live in an area where it's common for property owners (including my self) where the only road in and out is all private property and snakes across all of our property lines with easements. in our case we own a section midway so in blocking it we would either trap around a dozen people in or out of their homes

i suspect if we tried something like this it would be a race to see who got to us first-the neighbors to kill us or the local fire marshall (and god help us if one of our elderly neighbors had medical issues and ems could'nt get through-we could be facing wrongful death charges)

 

[tigercat]

Our neighbour just put up a fence. We had talked to him about it and said that we wanted to put it up and to talk to us when he was ready. Well we came home one day to find the joining fence down and some guys digging holes. I tried to talk to him but he wouldn't answer me as to what type of fence was going up, how tall, and what it would look like. I told him that my dh and ds's would help but he said no and walked away. Well he did put the fence up and it is sort of what we wanted except he built a section above where our gate is. It looks like we didn't know where to stop. We told him when the holes were dug that we didn't want a section there. He just walked away. When he put the fence up the good side is on his side and our side looks horrible. If we want it to look good we have to pay for wood that is going to cost pretty well the cost of the fence again. He gave up a bill for our share of the fence. I took off the one section that we didn't want an a little bit for the rest of the fence. I was really upset.
tigercat

 

[SeeVee]

For adverse possession, the neighbor also has to believe he owns the property. Here the OP said the neighbor knows it's an encroachment. Usually I direct people to the Budget Board if they wish to receive erroneous legal advice.Our neighbor has 2 different fences a few feet into our property. They know it's our property so I don't care about any adverse possession issues. They maintain the fences and they look nice. I'm down with it.

That's funny. Yeah, the adverse possesion thing is an old wive's tale.

 

[unbroken chain]

Our neighbour just put up a fence. We had talked to him about it and said that we wanted to put it up and to talk to us when he was ready. Well we came home one day to find the joining fence down and some guys digging holes. I tried to talk to him but he wouldn't answer me as to what type of fence was going up, how tall, and what it would look like. I told him that my dh and ds's would help but he said no and walked away. Well he did put the fence up and it is sort of what we wanted except he built a section above where our gate is. It looks like we didn't know where to stop. We told him when the holes were dug that we didn't want a section there. He just walked away. When he put the fence up the good side is on his side and our side looks horrible. If we want it to look good we have to pay for wood that is going to cost pretty well the cost of the fence again. He gave up a bill for our share of the fence. I took off the one section that we didn't want an a little bit for the rest of the fence. I was really upset.
tigercat

Have you paid yet? Not sure why you should have to pay for it. I put up a fence all around my yard and I paid for it. It's my fence, 2 inches on my side, my responsibility to pay and no one else's responsibility. Even if you agreed before hand to help pay for a certain kind of fence, that's not what he put up. What's more, usually you put the good side of a fence facing out, and in fact that is required for fences by my HOA. I can see why you'd be upset about it.

 

[froglady]

I have been a land surveyor for over 25 years, in Illinois, and have yet to hear of a successful case of adverse possession.

the land reverts to the neighbor??? how can it revert if the neighbor never owned it? An easement is rights granted or taken, not ownership.

I suggest contacting a professional for legal land issues in your area for more accurate answers.

Mikeeee

And again, it may be different in another state, as I (and my DH) won a case of adverse possesion in FL. It was a similar situation, but the fence was erected by previous owners decades before we purchased the house, and we owned the house for a decade before a new owner decided to correct the situation and put a new fence up (followed by a wall) on what we believed to be (according to a survey) our property. Our surveyor did not back up his survey ("oops, I guess I made a mistake") so we had to go to court, and eventually won. His wall came down, and we put up a new fence.

This was at a vacation home, so our fence was down (under false pretenses by the seller) and the new owner's fence was up before we could stop it.

Of course, we had really good lawyers.

 

[froglady]

That's funny. Yeah, the adverse possesion thing is an old wive's tale.

No, it's not. At least not in rural Florida.

 

[liberalmouse]

I have been a land surveyor for over 25 years, in Illinois, and have yet to hear of a successful case of adverse possession.

the land reverts to the neighbor??? how can it revert if the neighbor never owned it? An easement is rights granted or taken, not ownership.

I suggest contacting a professional for legal land issues in your area for more accurate answers.

Mikeeee

You might want to read up on the adverse possession ruling made last fall in Boulder, CO.

A neighbor was granted full ownership of a large chunk (34%) of a million dollar lot because he claimed he had used part of the lot as a path to gain access to another part of his property for 18 years.

The out-of-state owners (but former Boulder residents) had purchased the lot to build their retirement home on, so were not there on a daily basis to see the neighbor use their lot. The day after he could legally file for adverse possession, the neighbor, Richard McLean (a former district judge and Boulder Mayor) filed and courts granted him possession of the lot. The courts determined that he used the lot more than the out-of-state owners, therefore, it was his property.

It is a very bitter dispute, still going on to this day. The judge has picketers at his driveway and support has been mostly for the ex-owners of the lot. There are all kinds of accusations such as the McLeans just didn't want the Kirlins to build on the lot because it would block some of their views. Mountain views are worth big bucks in this state.

The former owners of the lot have accused the Judge of fabricating the trail just for the court. Although the judge in the case ruled last month that Judge McLean did not fabricate the path, so Kirlins were denied a new hearing to get their land back.

The decision has held up through the court systems and I believe was denied being heard by the supreme court.

There are too many articles to link, but you can google Boulder, CO, Adverse Possession, Richard McLean (judge who filed suit and won to get squatters rights to the land), Don and Susie Kirlin (owners of the land taken away from them)

More to this case, another Boulder family sued their neighbor for ownership of a few inches of their property due to fencing and won.
http://www.dailycamera.com/news/2008/jun/14/battle-over-adverse-possession-ruling-rages/

Battle over 'adverse possession' ruling continues
South Boulder resident fighting decision to rebuild fence, give up land
By Heath Urie (Contact)
Saturday, June 14, 2008


Mohammad and Gay Salim, of Boulder, last month won an "adverse-possession" lawsuit against neighbor Dana Marshall, who tore down a fence that she said property surveys showed was on her land.

Two Boulder couples who sued their neighbor for rights to a fence and a few inches of her land lashed out this week at public criticism over their actions, while the woman who lost her property is readying a public protest.

"We do not think the stories that we wanted to 'grab' our neighbor's land are fair," Mohammad and Gay Salim wrote in a statement to the Camera on Friday.

The Salims last month won an "adverse possession" lawsuit against neighbor Dana Marshall, who tore down a fence that she said property surveys showed was on her land.

Boulder District Court Judge Lael Montgomery ordered Marshall to surrender a slim strip of her south Boulder backyard -- and to rebuild the fence -- after agreeing that the fence and land had been used for more than 18 years by Marshall's neighbors.

"We think Ms. Marshall took down the fence that was not hers, took a view of our yard that was not hers, and took away the privacy that we enjoyed for over 25 years," the Salims wrote. "That is the real 'grab' here. We went to court to restore ourproperty, not to take Ms. Marshall's. The judge agreed with us."

Another set of Marshall's neighbors, Tom and Patty Angerer, released a similar statement Friday.

"We feel that it is unfortunate that Ms. Marshall was led to believe that the fence was hers to do with as she pleased," the couple wrote. "And we regret that we have had to spend tens of thousands of dollars in order to have the opportunity to repair our fence."

The judge's order gives about one-fourth of the disputed fence and property to the Angerer family, said Marshall, who also reacted to the letters.

"The ruling and order is from the plaintiffs' point of view, and the presumption of the law is supposed to be in favor of the record title holder," Marshall said. "Having an old, rickety wood fence facing me for the rest of the time I live here is like boarding up my windows."

Marshall said she has planned a public meeting from 7 to 9 p.m. July 3 at the Boulder Public Library. The meeting is the first gathering of a group calling itself the "Boulder Property Rights Coalition," Marshall said.

"We can talk about adverse possession as a law," Marshall said. "Everyone is vulnerable."

She said the group will also make plans to host a public protest about the law, and it will answer questions about the Marshall case and the case of Don and Susie Kirlin, who lost about a third of their million-dollar lot in another south Boulder land dispute last year.

The group has formed a Web site, with information about the cases, at www.landgrabber.org.

 

[corndog]

That's funny. Yeah, the adverse possesion thing is an old wive's tale.

Adverse possession is very real. It's just that most people don't know what it takes to get it.

 

[liberalmouse]

That's funny. Yeah, the adverse possesion thing is an old wive's tale.

Tell that to the Boulder couple who lost over a third of their million dollar lot and now cannot effectively do anything with it. Took their million dollar investment and turned it totally worthless as there is now not enough land to do anything with it.

I should also add that this is so controversial that Governor Ritter signed a new land grab bill in April that stated that judges cannot preside over other judges cases that were in the same district.

There are many accusations that the judge presiding over the case was biased towards his fellow judge - the land grabber.

 

[Mrs.Toad]

I have been a land surveyor for over 25 years, in Illinois, and have yet to hear of a successful case of adverse possession.

http://articles.latimes.com/2007/dec/03/nation/na-land3

For adverse possession, the neighbor also has to believe he owns the property. Here the OP said the neighbor knows it's an encroachment.

That must depend on the state, because it's not the case in Colorado, although there is talk of changing that law after the land grab cited above.

 

[JR6ooo4]

as for the easement-i would realy look at what it entails and how extensive it is because you hoa may not be entirely knowledgeable about it (despite what they say). we own property that our hoa (and fellow homeowners) have easements to for a variety of reasons, however, when we were purchasing the property and received all of the title search documents we learned of ALL the easements that existed long before our community and the hoa existed. the hoa was granted and is knowledgable of what they perceive as their rights to easement, what they may or may not be aware of are that their easements take secondary place to pre-existing easements by the county dating back many decades. i would check in your original title documents and rely on that before you rely on any word of mouth from the hoa.

Don't completely rely on title companies either. I find many mistakes, mostly with legal descriptions.

And again, it may be different in another state, as I (and my DH) won a case of adverse possesion in FL. It was a similar situation, but the fence was erected by previous owners decades before we purchased the house, and we owned the house for a decade before a new owner decided to correct the situation and put a new fence up (followed by a wall) on what we believed to be (according to a survey) our property. Our surveyor did not back up his survey ("oops, I guess I made a mistake") so we had to go to court, and eventually won. His wall came down, and we put up a new fence.

This was at a vacation home, so our fence was down (under false pretenses by the seller) and the new owner's fence was up before we could stop it.

Of course, we had really good lawyers.

exactly, many court decisions are not what would appear to be honest. Not saying yours was or wasn't.

You might want to read up on the adverse possession ruling made last fall in Boulder, CO.

A neighbor was granted full ownership of a large chunk (34%) of a million dollar lot because he claimed he had used part of the lot as a path to gain access to another part of his property for 18 years.

The out-of-state owners (but former Boulder residents) had purchased the lot to build their retirement home on, so were not there on a daily basis to see the neighbor use their lot. The day after he could legally file for adverse possession, the neighbor, Richard McLean (a former district judge and Boulder Mayor) filed and courts granted him possession of the lot. The courts determined that he used the lot more than the out-of-state owners, therefore, it was his property.

It is a very bitter dispute, still going on to this day. The judge has picketers at his driveway and support has been mostly for the ex-owners of the lot. There are all kinds of accusations such as the McLeans just didn't want the Kirlins to build on the lot because it would block some of their views. Mountain views are worth big bucks in this state.

The former owners of the lot have accused the Judge of fabricating the trail just for the court. Although the judge in the case ruled last month that Judge McLean did not fabricate the path, so Kirlins were denied a new hearing to get their land back.

The decision has held up through the court systems and I believe was denied being heard by the supreme court.

There are too many articles to link, but you can google Boulder, CO, Adverse Possession, Richard McLean (judge who filed suit and won to get squatters rights to the land), Don and Susie Kirlin (owners of the land taken away from them)

More to this case, another Boulder family sued their neighbor for ownership of a few inches of their property due to fencing and won.
http://www.dailycamera.com/news/2008/jun/14/battle-over-adverse-possession-ruling-rages/

I should have said I had not heard of one in my area.

http://articles.latimes.com/2007/dec/03/nation/na-land3

That must depend on the state, because it's not the case in Colorado, although there is talk of changing that law after the land grab cited above.

 

[imamicki2]

The easement could be a drainage, utility or access easement. These may prohibit any fencing at all. Check with your town's building dept. or public works to verify. And, ask if a permit was pulled. If not maybe they could go after him. If the town finds out it is on an easement and it isn't allowed, they may make him take it down. Here where I live a fence is allowed to be on the property line, but it isn't up to the town to figure out where your lines are.

 

[manning]

Your example is contract law, not real estate.

Maybe I'm thinking of the fact that I'm a real estate lawyer?

Thank you for your expertise!!!

Now if you are talking about adverse possession

Adverse possession is a principle of real estate law whereby somebody who possesses the land of another for an extended period of time may be able to claim legal title to that land. The exact elements of an adverse possession claim may be different in each state.


Advertisement To prove adverse possession under a typical definition, the person claiming ownership through adverse possession must show that its possession is actual, open, notorious, exclusive, hostile, under cover of claim or right, and continuous and uninterrupted for the statutory period.

Please note that real estate laws can vary significantly between jurisdictions. Adverse possession is now usually governed by statute, and the law, definitions of terms, and the applicable statute of limitations can vary significantly between jurisdictions.


Of course this may be wrong. I'm not a lawyer.

 

[karinbelle]

The easement on the back of the property is a sewer and drainage easement. It's 15 feet (7.5 on each property).

I contacted a reputable surveyor from my area and he said to just put the owner of the other property on notice with a friendly letter stating I know he's on my property and he can use it, but I retain the right to have him move it if it creates a problem for me in the future. I'll send it certified mail. The neighbor would then have to disclose this to any potential buyers if he sells.

The surveyor (who has testified in court as an expert witness) said the notification would protect my property from being taken. He also thought the small slice we're talking about would not bother a bank or lender - but could possibly bother an extremely picky buyer. In that case, I would have them move their fence.

Thank you all for your advise.