My Neighbor Says The Fence Is On Their Side Of The Boundary

by | Mar 26, 2015 | Firm News

Just because your neighbor has a survey doesn’t mean it’s right. Get your own survey. Until you know for sure, you don’t know what your really fighting about.

Even if the neighbor is correct about the boundary, you still might have a right to keep the fence where it is. Talk to a lawyer.

Don’t sue. That little strip of land isn’t worth it. If you can’t work it out, and your lawyer can’t work it out, hire a professional mediator to negotiate a compromise.

If you’re the one whose land has been taken, don’t act unilaterally. Judges and police don’t like that. Either work it out or go to mediation. Don’t sue. That little strip of land isn’t worth it.

1. Get Your Own Survey. Unless you have some very good reason to know that your neighbor is correct, the first thing to do is hire your own surveyor and get your own survey of that property line. Just because your neighbor got a survey does not mean that survey is correct. Unless the survey you are shown has been recorded in the county survey records, it might be a map of a line that the neighbor asked the surveyor to map and not the actual boundary. The neighbor might have given the surveyor a legal description of the property that is incorrect or even changed. If it is the rear boundary, the neighbor’s survey might be from a survey marker on their street, and yours might be done from a survey marker on your street. If either of the markers has moved, then the surveyors will need to figure out the boundary from some other marker. If both surveys are correct (or wrong), then negotiation or mediation to work it out will be required.

2. That Little Strip Of Land Is Not Worth It. Keep reminding yourself that the little strip of land in dispute is not worth enough to pay for a lawsuit. If either side starts a lawsuit, even if you win, you won’t be entitled to reimbursement for your attorney’s fees. The only exception would be if you bought the property from your neighbors and that contract included a clause allowing the winner to collect reimbursement for their attorney’s fees.

It’s probably not worth the cost of the survey, but unless you’re just going to give up, you don’t know who is right until you get your own survey.

3. Agreed Boundaries. If it turns out your neighbor is right about the survey boundary, you’re not done. Under the doctrine of “agreed boundaries,” if you and your neighbor, or any prior owners of your property and your neighbors’ property, ever agreed that the boundary would be where the fence is, then that agreement controls. The agreement does not have to be in writing. If it’s not in writing, how are you going to prove it? You’re going to need testimony from whoever made that agreement. Unless you can get those witnesses to agree to testify for you, you won’t have the evidence you need to win. Claiming that the fence is on such an agreed boundary might be enough to get your neighbor to agree to a compromise.

Possible compromises include:

•· You agree to let the neighbors move the fence when you sell your property.

•· You agree to let the neighbors move the fence when they sell their property.

•· In exchange for their letting you keep the fence where it is until you sell, you agree to move the fence when you sell the property at your expense, with no cost to the neighbors.

•· In exchange for letting you keep the fence where it is, you agree to move the fence, at no cost to your neighbors, if you ever remodel your house and the cost of the remodel will be more than some specified amount of money.

•· You agree to pay for the land and the cost of obtaining a lot line adjustment from the city or county. This might not be possible, because of zoning laws. This almost never happens, because the land is usually not worth as much as the cost of processing a lot line adjustment. Plus the neighbors almost never agree.

4. Dont’ Take Act On Your Own. If you’re the neighbor, don’t just move the fence without the other side’s permission. Courts and the police hate self-help. It’s a breach of the peace. As discussed above, what if you’re wrong? Because of that risk, if the other person tells the fence contractor to stop, the fence contractor will stop, because he will be a defendant in that lawsuit, too. If the police are called, it’s the fence contractor who might get arrested and charged. And the fence contractor is still going to want to be paid for his time, his materials, his profit, and any attorney’s fees to deal with the police.

5. Mediate. Don’t Litigate. If you and your neighbors can’t agree, find a mediator to help you work it out. Never forget, it’s not worth a lawsuit.