Neighboring House Not Adhering to Side Yard Set Back

[Jbernacchi]

My question involves real estate located in the State of: Indiana

Our home is considered a "non-conforming" use, as well as the neighbor we share an entire block with. We are zoned Industrial-2, but have residential homes on our land.I guess the town was pretty lax with permits roughly 16 yrs ago. According to the town zoning and Our ordinances,any structure should be set 20 feet back from the front, and 40 feet on the side. Our neighbor's house is only set about 10 feet away from our property line, and his central air units actually just on our property line. So the long and short, their house is 30 feet too close to our property line.
This was not a big deal to me, other then if I fence in my property, my fence will be awfully close to their house and the wife is being ridiculous. I also want to fence in my backyard, but their back parcel comes over about 35 feet beyond their fence, in what would "appear" to be my land. To top it all off there is a public alley that separates both of our front parcels from our back parcels that we are working to vacate. This would cause some very odd looking fences built on angles and ours would come over next to their house in the front part, and theirs would come into "our backyard" in the back part... The neighbor claimed she didn't know that her property went behind her fence until now,but now wants to remove her fence and build a new fence to enclose her newly discovered property.(after we cleaned up the mice infestation)
What I would like to do is give up 25 feet of so of the front parcel for an exchange of 25 feet of the back. Since the front parcel is longer, I would actually being giving up a little more land in the deal but think it would be worth it, so we'd have a nice straight line to do a fence with and their house wouldn't be right next to my property line and fence.
The wife has now threatened to sue me for 4,000 for removing weeds and cleaning up a fallen tree from her property in the back that was not clearly defined up until the survey last week. There was a tree that had been up-rooted and knocked down a few years back that they left there, even after the previous owner of my home told them that was there responsibility. Apparently they came and told him he needed to have his homeowners cover the removal, and he laughed and told them that was their property. For whatever reason, they didn't bother with it for 4 years and have just now decided to do something with it.There were mice living in the uprooted tree and it was quite nasty.My husband just cut the wood up and stacked it, and that was after the husband said it was okay. If I had the nerve, I would send them a bill for clean up.
So..getting back to my main questions...Can I do anything about their house being too close to the property line, even though we are both non-conforming uses?
I would love if we could work this out in a neighborly way, but this woman is stubborn. The husband and my husband are friends, but the wife is crazy. The husband stormed out of the town meeting because she started making ridiculous claims about suing us for damages from the weed/brush removal. Maybe she could claim the fallen tree was yard artwork, but how does she get around the fact her husband helped? He called my husband to apologize for her, but it is obvious who wears the pants over there.
Thank you for any help.

[Newtons_Apple]

My question involves real estate located in the State of: Indiana

...so we'd have a nice straight line to do a fence with and their house wouldn't be right next to my property line and fence.

There was a tree that had been up-rooted and knocked down a few years back that they left there, even after the previous owner of my home told them that was there responsibility. Apparently they came and told him he needed to have his homeowners cover the removal, and he laughed and told them that was their property.

Can I do anything about their house being too close to the property line, even though we are both non-conforming uses?
.

OK - what is quoted appears to contain the issues.

1. In order to build a straight fence, you will have to effect a boundary line agreement. Because the boundary line is being changed from where you know it to be (based on your survey), you are contemplating a change to the title, as opposed to defining a boundary that cannot be located on the ground by a prudent surveyor, which means an attorney. This is all assuming your neighbor(s) will agree to the change.

2. You state that the wife claims she didn't know the tree was on her property after your previous owner told her it was. Also, the husband gave your husband permission to cut the tree down. Perhaps have an attorney get these statements in writing now, while you still can. Either way, make a phone call to your attorney and get advice from a professional in your jurisdiction concerning her threat to sue.

3. From what you have written, it appears the Town either issued building permits or otherwise allowed the houses to be built in their present location(s), on non-conforming lots. In this case, they are grandfathered in.

[eapls2708]

There are two processes with similar names, but with quite different purposes. One is a Boundary Line Agreement, the other is a Boundary Line Adjustment. I think that Newton actually meant to suggest the latter.

A Boundary Line Agreement is the process wherin the adjoining property owners, having made a reasonable attempt to locate the true boundary (hire a surveyor), are unable to do so because either the deed descriptions are not definite enough and/or there is not sufficient evidence to indicate one location over another with an adequate degree of certainty. The owners may then agree to define the line between them and have their deeds reformed to reflect the agreed line. In most jurisdictions, a surveyor can do this, but I recommend having an attorney involved and in some jurisdictions, it's required. Either way, the surveyor will measure the agreed line and rewrite the deed descriptions to reflect it. A Boundary Line Agreement process does not transfer title to land, but serves to better define the extent of existing title.

A Boundary Line Adjustment is an administrative process used to move a known boundary line to a more desireable location. That is what you have proposed and would seem to be an ideal solution here. In this process, the surveyor writes descriptions of the portions of the parcels to be transferred, and writes new descriptions for the resultant parcel configurations. In this case, Mr. & Mrs. Bernacchi transfers the 25' of the front parcel to Mr. Milquetoast & Ms. 5150, and Milquetoast/5150 transfer 25' of the back parcel to Bernacchi, and then you have new descriptions which will neatly and definitively describe your new parcel shape. If this can be done concurrently with the alley vacation, it wraps it up nicely. A Boundary Line Adjustment is a transfer of title. If either of you have lenders, you will need their approval. Even with a net loss of area, if it is not much, most lenders will see it as a net plus if larger problems are cleaned up and it results in no change or net gain in property value. From your description of the situation, that would seem to be the case.

Here is your stumbling block: Even though Mr. Milquetoast is reasonable, and you would probably be able to come to agreement with him pretty quickly, you will need everyone with title interest in the property to agree. If Indiana is a community property state, Mrs. 5150 may be able to stop such an agreement from ocurring even if she is not on the deed. The way you describe her, she has an unreasonable determination to fight. That's unfortunate because it means that the process will take longer and cost more, but it probably remains your best course of action. If she gets an attorney and you have an attorney (not normally needed for a BLA, but in your case, have one on retainer), perhaps two attorneys and her husband together and by different means can convince her that the BLA is far preferrable to taking any legal action.

As Newton advised, If you have any evidence that your removal of the tree was with Mr. Milquetoast's permission, document it and provide it to your attorney. In addition, if you know of anyone who witnessed Mr. Milquetoast helping your husband do the work of cutting up and removing the tree, get a notarized statement of that fact now and provide it to your attorney. That permission and help should effectively kill any threat of a lawsuit over it.

Also as Newton stated, as long as both the house and the AC unit were were built according to permits issued by the city, they are where they are and don't constitute a violation, but rather a granted or implied variance to zoning codes.

Good luck. I hope that you are at least able to maintain a decent relationship with the husband.


BTW, I'm a surveyor, not an attorney. I know land issues and have some idea of the law, but see an attorney for real legal advice.

[Jbernacchi]

Thank you so much for your help. That spells things out much more clearly. We didn't actually cut down a big tree, rather help the husband cut it up. It was uprooted in a storm years ago,and laying on their fence into what we thought was our backyard. The others "trees" she was talking about were weeds and very small sassafras trees. They were less then an inch in diameter, only a few feet tall. At the time we did not know they were on their property...if anything we did them a favor, but because we were unsure of exact property lines, my husband always talked to the neighbor first. Could she really sue us for cutting weeds on the property was not clearly defined? I wish you could see the land and what exactly I am talking about it...it's absurd.
I looked online to see if you could even find those type of trees for sale, as they are so undesirable in this area, and I did find one place you could by substantially larger ones for 7.00 a piece. I would gladly offer to replace them if she wanted, but I am afraid that she would take that as an admission of guilt. I have no idea where she came up with the idea of 4,000.00 but I am guessing that is how much the estimate for her new fence she wants to install on a slanted angle, across a currently public alley, and down into what appeared to be "our backyard" costs. It feels like she is trying to get us to pay for her new fence! The husband wants no part of it, and told us he would not to go court with her if she tried to sue us, and then he called her a few crazy names I can not repeat.I feel very bad for him in this situation, but at the same time I do not think he was honest with his wife. He is the one who told us that the previous owner told him that was his property 4 years ag0, after the neighbors went to him asking to have his homeowners pay for the storm damaged tree. For whatever reason, they did not investigate further and that tree sat there, uprooted until we recently moved in. My husband and the neighbor husband became friends and talked about clearing it up. There were mice living in it, and it was nasty, rotted. Having a small child, and a dog I worried about the contamination. Since my husband is an Arborist and does tree work for a living, it was no problem for us to take care of it. This just feels so evil. I honestly do not care that about their house being too close, only wish to make it easier for both of us and maybe make a straight-line ans share the cost of a fence on that side. The husband would be all for it, but I don't ever see her being agreeable.
I already have permission from my lender, and since they would be gaining a little property I am sure her lender would agree....if only she would!
Next house I buy will be in the country with no neighbors for miles!!! I do have a question though now...Since we are non-conforming and zoned industrial, does that mean I could sell my house/land to someone for it's intended use? Say I sold the house to someone who wished to tear it down and build a Water, Sewage and Treatment plant(as defined as acceptable use in town zoning and ordinance book)....Would the neighbor be able to stop the sale or building of this? The wife made it very clear to me that she was living in her house forever. I am thinking I may not want this alley vacated as they could become important if we wanted to sell this land for its intended use, or possibly open a business on our back parcel.

[LandSurveyor]

Could she really sue us for cutting weeds on the property was not clearly defined? I wish you could see the land and what exactly I am talking about it...it's absurd.

Sure, she can sue you for anything she wants to sue for. Her threat to sue for $4,000 is interesting, because it will cost her, in legal fees, appraisal fees, deposition and other expert witness fees a lot more than $4k. And that's if she wins. It means she hasn't thought it through to the extent of discussing it with an attorney, or she is just trying to intimidate by threat. I think it is the latter and you just have a nutcase for a neighbor. As a surveyor, I have seen enough of them to recognize them.

In the previous responses to your posts, you have received competent and thorough advice and analysis, and I am only adding what I think will probably happen rather than what might happen. Nutcase neighbors are a law unto themselves and will throw out the most irrational and intimidating statements to you, without any rational or legal basis. Not being a psychiatrist, I have no insight into the cause, just the usual symptoms.

I would think that it would be unlikely that you get her to agree to the property adjustment you desire. She will have to agree to it in writing (as eapls has already pointed out) and she can stop the idea even if everyone else, including the lenders, is willing to agree. I would put that out of mind and also any thought of a lawsuit from her. I really feel sorry for her husband. Make him your new best friend. Who knows what he is going through at home?

Angles in fences don't really increase the cost. Now that you know where the boundary is, you know where you can place a fence, without any input from the nutcase neighbor. Good fences make good neighbors.

[Jbernacchi]

Thank you so much for your input. It is very much appreciated. I am very medically and scientifically orientated, so this was all so foreign to me at onset. I had no idea how many intricate details were involved with the conveyance of land, real property, zoning and so on. During the past 72 hours, I have had one heck of a crash course on the subject and I must say that I have a new found respect of people that have to deal with this daily.
My greatest thanks to go out to the people of this forum who have responded!

The neighbor husband was able to get the wife to come over and talk with us. She told is in no uncertain terms that she is not a friendly or neighborly person, she does not care for white people and has no desire to work with us on a boundary line adjustment. She said she does not care how ugly it looks, she will fence in every square inch of the property that is rightfully hers, regardless of the effect it will have on appearance or property value.
We had been hoping to give up 3o feet of the front, so their house wouldn't be so close to our property line, in exchange for 30 feet of their back(the BLA-I had learned about) The husband is still trying to talk her into agreeing to this, but we feel that would be an uphill battle not worth our resources. Even if they never had a variance given for building so close to the house, I doubt we could do anything about it. The reason they built so close to the property line, is because they have huge house and had to adhere to the set back on the opposite side, as there is a street there.
All we can do at this point is try to landscape around the chicken wire fence they want to construct on the angle, and over to the property line.We will have to save for a privacy fence on that side, which I am sure is her wish anyways. She actually said she didn't want us to cut any of the trees on our front property as it helped to shade the east end of her house and she liked the privacy and doesn't want to see us when we are in our yard there.

Again, thank you all for helping. it really does help just to get it out and have someone that understands. I do feel sorry for the poor guy, and can not imagine ever talking to my husband the way she does to her...let alone in front of other people. I will be praying for both of them, and I am confidant my husband and her husband will continue their friendship.

[eapls2708]

Racism is a very difficult thing to overcome and explains at least some of her unreasonable behavior. I'm sorry you're having to deal with it and even more sorry for her husband who is living with someone like that. I've known someone in a similar situation. For years I thought he was just weak for putting up with it until I understood the level of mental illness in his wife and the level of commitment on his part. He had at one time made a vow to her, to family, and to God, and he kept it. Strength hidden in weakness.

Good luck. I'll pray for all of you.