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  1. #11
    Join Date
    Dec 2008
    Location
    El Dorado County, CA
    Posts
    348

    Default Re: Property Boundary Line with Our Neighbors

    Quote Quoting Merrybr
    View Post
    Thank you for your replies. I would like to ask a couple or a few questions:
    1. Should we go to a real estate lawyer and have the lawyer recommend a surveyor that "they" may use for property issues such as ours ?
    Or does going through a lawyer more costly ?
    2. What should we be looking for or asking in a surveyor with the utmost qualified, certified licensed surveyor ?
    3. What are the records in which the surveyor can or does obtain when surveying this property ? Or after surveying the property ?
    4. Does the building code come into the issue of safety and regulations of fencing, the garage accessibility for any hazards such as a fire, or
    electrical power lines "possibly coming down", or even the matter of us to be able to maintain our home, such as painting the awning and
    side wall, etc... Because of now...we "can't" maintain and care for our property. We don't have access. The neighbor does and the
    neighbor isn't maintaining anything along our garage, or the fencing line area.

    I hope I asked what I think I need to know. Again...If I should have left anything out...please inform me of what I may not have thought of.

    Thank you so much !


    All great questions that a lot of people don't think of asking. Newton and LS have done a very good job of addressing many of your questions up to this point, but I'm here in the capacity of a CA Professional Land Surveyor to do some minor tunig to the previous answers. I'll start with asking for some clarifications.

    The 1987 date keeps popping up, but I'm confused as to its particular significance. Is 1987 when your mother purchased the property, when it went into probate, or both? Was the probate, and the time the fence was moved recent or in 1987/88?

    Do you have knowledge of where the fence was prior to being attached to the garage? Do you know on what basis the neighbor moved it? Does he have some belief that the true property boundary is where the fence is now, or is it a matter of convenience or some other motive? Have you and he spoken about it or are you speculating based upon your impression of him?

    I'll come back later to tune up my answers a bit pending the answers to those questions.

    So far, you have had three surveyors (including me) and no attorneys answer here. Maybe an attorney will come along and chime in soon, but so far there isn't really enough info or answers to speak much to legal issues. But as a surveyor who sees these issues commonly, I agree fully with Newton and LS that you have little basis for challenging the fence without first having a survey performed.

    Answers to your specific questions:

    1. A real estate lawyer would be a good place to go for a recommendation if you're pretty certain that you will need legal representation. If you have knowledge the fence was moved, if zero setbacks (buildings on the property line) are not common in the area of this property, it's a good bet you will need legal representation at some point.

    2. If you are finding a surveyor yourself, bear in mind that in CA, the practice of land surveying is much broader than it is in many other states. Some states recognize the licensed activities as being only boundary surveying and some mapping, meaning that only licensed surveyors can do those, and other kinds of surveying can be performed by pretty miuc anyone whether they have a license or not. In CA, those are included, but so is geodesy, photogrammetry (making maps from aerial photographs), construction staking, and a few other types of surveying. Accordingly, there are many licensed surveyors whose practice is primarily one of the other types of surveying, with boundary surveying either not being a part of their practice or being a minor part of it. In many cases, surveyors whose practice does not include boundary as a major portion of their business don't have a very good understanding of the records, physical evidence, laws and other issues which need to be considered. Find someone who has boundary as a major portion of their practice. The host of this site has articles on boundary doctrines based upon occupation. After finishing this post, I'll find them and link them for you. Make sure the surveyor you hire can explain not only what forms of evidence he or she will consider beyond your deed, but can also satisfactorily articulate the concepts of Adverse Possession and Acquiesence, how they are similar, how they differ, and how each may apply to your circumstances. You won't be looking for legal advice, but an assurance that the surveyor you are speaking with has an understanding of boundary concepts beyond the mathematics gleaned grom the dimensions of the deed. A surveyor may be quite competent and succesful in other areas of surveying, but that does not necessarily equate to high competence in all areas. Boundary is an area that many perform, but relatively few adequately understand because so much of it is legal in nature as opposed to mathematical. A competent boundary surveyor is not going to be the cheapest of those you speak with, and may be the most expensive. I'm certainly not implying that a high fee is a sure indicator of a competent surveyor, only that competent surveyors tend to know the value of their service (and deliver) and less competent ones tend to not recognize all of what should be considered, viewing it more like a staking problem than a quasi-legal one. It will be up to you to determine if the high price is based upon a more diligent effort of identifying and analyzing evidence, or simply a desire to make a bigger profit. Thus ends my standard mini-lecture on the difference between fully competent boundary surveyors and others. I hope you found it useful.

    3. Here is a basic short list, but as LS stated, there isn't enough time or room to get comprehensive here. I have about 10 feet of bookshelf filled with books that discuss the answer to this question. Short list: your deed; recorded survey maps of properties in the vicinity, which may include subdivision maps and other boundary survey maps; the physical locations of survey monuments in the area, including those which may exist at the corners of your property and others which may be some distance from your property; the locations of existing physical improvements on or very near your property; local government survey and street records, including surveys, right of way plans or improvement plans by the Dept of Public Works); private survey records reflective of unrecorded work in the area for which your surveyor found points; your neighbors' deeds; and the list can go on based upon local circumstances.

    4. It might. But the surveyor will not assess safety issues. He or she may be aware of local setback requirements that exist or were common in the era when your property was developed. In many neighborhoods in urban or suburban areas, it is not particularly common, but is not exactly rare either that zero setbacks, particularly for garages and other outbuildings are or were allowed for some neighborhoods/developments, or that a variance may have been granted to allow it. Don't discount that until you've checked it out. If such setbacks or variance is present in your case, look into any related zoning ordinance which may address maintenance of structures built at a zero setback. Even if your garage was so built, you may have some relief with respect to your neighbor being able to use the wall to hang tools, and for you to perform regaular mainrenance. While zoning codes are usually devised with the fire code in mind, they are not the same. Fire departments care about access, but may not care particularly if that access is fully on the property burning or on a neighboring property. Where zero setbacks do exist, you will commonly find that they may not exist on both sides of the property in a single family residential neighborhood where the homes are not joined by party wall (like a townhouse).

    Your surveyor may be able to help you research these issues, or may be able to give you some local guidance to do your own research. Your attorney may also be able to give you a good recommendation of someone locally who specializes in that type of research.

    I'll go look for those links to the articles I mentioned now.




    Here's the article on Acquiesence: http://www.expertlaw.com/library/rea...uiescence.html

    And here's the one for Adverse Possession: http://www.expertlaw.com/library/rea...ossession.html

    I'll check back later for your answers to my questions.

  2. #12
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    Apr 2011
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    11

    Default Re: Property Boundary Line with Our Neighbors

    To the last post, and the reply. Your a very good writer ! As to your question and clarifications. The original owner on this home, property
    past away in this home, 1985-86? The home, property was put in probate for a year or more. Then eventually the property went into sale by a Real Estate agency...in which my Mother purchased in the middle of the year of 1987. The neighborhood seemed to us a nice one at that. But with little time passing a neighbor from across the street warned my Mother to be aware of our next door neighbor and that the neighbor cheats. My mother told one of my siblings and we feel we know what it meant...We figured out 4 days ago when we replaced some fencing boards and measured the back yard width so we can concrete the back of the garage. A home improvement. I measured the outer brick wall (from the alley) to the dividing (neighbors) fence line. We repeated these measurements over a few times and the width is
    less than what we have for this property lot measurement. We did the front as will. It's off as will.

    I have no legal ground of proof that the neighbor moved the fencing. But in theory if he did...he did it during the time when the house was in probate. There are some evidence of permanent structural building the neighbor did that is obvious...and we are positive that there were no permits obtained.

    As to our belief in that the fencing was moved...you'd have to live next door to the neighbor and you'd understand what kind of person the neighbor is. You'd understand. If the circumstances with our neighbor was different...we would approach and speak openly about the issue of the fencing. But I tell you the truth...you can't. The neighbor won't speak with you. The neighbor won't even say hello when you do.
    We feel bad about the neighbor. We're not angry, but rather would like to find a nice ground to be trusting neighbors as that's what neighboring is.

    I really like your writing...and it's very clear in detail to understand. Thanks. Now I can look and think with a more broader outlook on how to approach this issue. If you have anymore to add in writing, in which you like to write about...feel free to do so.

    Thanks a lot...

  3. #13
    Join Date
    Dec 2008
    Location
    El Dorado County, CA
    Posts
    348

    Default Re: Property Boundary Line with Our Neighbors

    Thanks for the compliment. Now, on to your issues.

    Neither of the answers help you, and may hurt you. If he moved the fence while the property was in probate, then that year likely would not count toward the statutory time period required to establish prescriptive rights, but that brings it up to 1988. You've had 23 years since then in which to discover the shortage and take appropriate action. That's going to work against you and whether he did this during a period in which he could not accrue time toward a claim won't matter anymore unless your mother was infirmed or otherwise not legally competent to see to her own rights during that period.

    The neighbor's disposition, lack of social graces or civility won't be a factor if this were to go to court. Like me, the judge doesn't know your neighbor either, and if he or she did, would have to recuse himself/herself from the case for having a preformed opinion of one of the parties. Unfortunately, all you have, no matter how accurate or well founded, is supposition based upon what you know of your neighbor's personality. I'm not an attorney, but I'm pretty certain that your supposition won't be admissable.

    Your first steps are still going to be to get an attorney and a surveyor. All is not necessarily lost. One of the elements for making an Adverse Possession case in CA is having been making the timely payment of all taxes associated with the property being claimed. That's often a tough one to get around. Whether or not he can depends on a few things. Among them being how the property is described and how the assessment reads and was performed. Talk to your attorney to see how the particulars may work to help or hurt your case.

    First step is to get the survey to ensure that your property is as wide as you think it should be (often the dimensions must yield to other considerations, sometimes to the landowners benefit, sometimes to their detriment in terms of lot size), and to find out just where your lines are relative to the fences and other improvements. Who knows, the discrepancy may be on the other side of your property. Once you have the survey, you know how the table is set. Your attorney will have a better idea of what the issues are and will then be able to devise a strategy to handle them.

    Good luck. I don't know how it will work out for you, but you seem to be able to formulate the right questions to find the right answers.

  4. #14
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,370

    Default Re: Property Boundary Line with Our Neighbors

    you'd have to live next door to the neighbor and you'd understand what kind of person the neighbor is. You'd understand.
    Actually, most of us surveyors here understand this type of situation a little too well.

    Let's get the survey done. Once you have selected a surveyor, it is only proper good sense to let the surveyor know just as much about the situation as you have explained here. It will help the surveyor take prudent precautions and do a safe and proper job for you.

    Once you get the results of the survey, come back here with the results.

    Good Luck!

  5. #15
    Join Date
    Apr 2011
    Posts
    11

    Default Re: Property Boundary Line with Our Neighbors

    Thanks for the reply. As to my Mother's competencies...that could be questionable...she's impaired. My mother can't walk.

    As to the neighbor...for us it's about principal and honesty. What I'd like to know is that if the neighbor has more property than what the neighbor pays on there property taxes...must the neighbor report a "claim" (adverse possession) of the property to the city hall of records ?
    Or does the neighbor just acquire a free homestead land by just moving a fence over ?

    I assure you...my mother is paying in full on the property taxes even what the neighbor did.

    Yes...a surveyor is the proper and is the effective route.

    Thanks so much for your input.

  6. #16
    Join Date
    Dec 2008
    Location
    El Dorado County, CA
    Posts
    348

    Default Re: Property Boundary Line with Our Neighbors

    In CA, Prescriptive Rights, of which Adverse Possession is based on, cannot accrue against a property owned by a minor or by someone legally not competent to see to their own rights. The reason for that is that such property would commonly be held in trust by someone with power of attorney, but that someone is not necessarily expected to know the property as well as a competent resident would or as well as a legal owner is normally expected to. The law allows that a minor or incompetent person is not fully capable of protecting their rights. If you truly do have questions as to whether your mother was or is legally incompetent (usually that would mean that she had a guardian and/or had someone else exercising her power of attorney during the time in question), talk to your attorney about how that determination is made and how it might factor in here.

    If she were competent for the first 15 years or so (pulling a number out of the air, any number allowing for 5+ years of qualifying occupancy of the adverse claimant while your mom was competent would do), and then became incompetent as the effects of age set in, I really don't know how the court would view the claim now, whether they would reject it saying that the claimant should have perfected his claim while your mother was still competent, or whether they would confirm it based upon the claimant having fulfilled all requirements while she was still competent. Another question for your attorney.

    Simply paying the tax billed does not prove that she paid the taxes on the full property based on written title and that the neighbor did not pay some portion of the taxes on your mother's property. Here's how that can work: The assessment, rather than simply being "Lot 12 of the Happy Meadows subdivision as recorded in Volume 23 of Maps at Page 52", it might read "Lot 12 of the Happy Meadows subdivision as recorded in Volume 23 of Maps at Page 52, being a residential lot and having on the premises a one story wood frame single family residence, garage, other minor outbuildings, and a garden, all being fully enclosed by a wooden fence". If your neighbor's assessment read like the latter, and your mother's read similarly, then the Lot reference would be considered the general description of what was assessed and the rest a detailed description of what was assessed. In such a case, all of the improvements, including the fence enclosure would have gone into the assessed value and the lot owner would be paying for the land and improvements enclosed by the fence, assumed to be the same area as tha mapped Lot 12.

    If the assessment is more like the first, which is more common for lots in mapped urban/suburban residential subdivisions in CA, then it becomes very difficult for the claimant to make a case that he has paid the required taxes on the disputed property.

    But then there is a possible claim under the doctrine of acquiesence, which is a recognition of a particular line, clearly marked in some way (like a fence), over a period of time. Such a line left undisputed over 23 years is a pretty good candidate for an acquiesced boundary. Go to the link I gave you before and read about acquiesence. Mr. Larson sums it up quite well in just a few paragraphs. The statutory period for such claims in CA is not linked to the particular doctrine used, but rather to the actual possession of the land, that period being 5 years and applying to claims based on actual possession regarless of doctrine.

    If you had something that could show definitively that the neighbor moved his fence while knowing where the true boundary is, it might help in an effective defense. Talk to some of the long time residents to see what they might know, if anything. Don't attempt to help them or steer them into building a story that would help you. If it ever goes to trial, the other side will be able to pick that apart and destroy both your credibility.

    Even if the neighbor has deliberately acted to steal some of your mom's lot, at 23 years after the fact, you may have a pretty tough time prevailing on this one. Good luck.

  7. #17
    Join Date
    Apr 2011
    Posts
    11

    Default Re: Property Boundary Line with Our Neighbors

    As to the reply and all the technicalities of law on the property in question. If the fact is revealed that the line was moved a foot giving the neighbor more to the neighbors property...plus one to more permanent structures built by the neighbor, that would have needed to have had a city permit...but the neighbor failed to acquire one by the city. Wouldn't that show what the neighbor's character is built on ? And the disregard to the law in which the law was made to abide for all ?

    The question comes down to the heart of the truth as to the factual property boundary line. If the property boundary line does over exceed the property lines (our property), that the neighbors did move the fence...the truth will be there. And if the neighbor has any dignity or self respect in what the truth is and what is not...the neighbor should step up to the plate. Because sooner of later the neighbor will know that we know what was done. The neighbor has to confront us everyday, knowing that we know. It doesn't matter to us if the neighbor says hello or ignores us. It'll just be the matter of the actual fact of the property boundary line and that "we know". And if the neighbor doesn't give it back...it'll be up to the neighbor to decide how to live each day, knowing what the right thing was and didn't take responsibility to correct the wrong.

    Aside from that I did find out one thing about the neighbor. The neighbor was sighted a red tag for digging and trying to move the sewage line without permission or a "permit". There are others as will.

    Just to let you know I e-mailed a surveyor this morning, asking the questions you provided for me to question. I haven't checked the e-mail yet...but I will as soon as I'm done here.

    I'll keep you posted as to our progress. Thanks a lot. Really love your writings.

  8. #18
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    Apr 2011
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    11

    Default Re: Property Boundary Line with Our Neighbors

    Hi...sorry it took some time to write back. I have been searching for a surveyor with a legal back ground. I contacted a surveyor (in the local area) via e-mail and asked specific questions pertaining to knowing legal matters, concerning the property line...and they did write back and right away ! They referred me to one person that handles the survey, detailed evidence of building permits, original blueprint, history of the boundary line in question. Basically this surveyor does what I'd call...forensic
    investigation surveying. The surveyor has a reputable site and is used in courts. I'm not quite sure if this specific surveyor deals in small matters like residential boundary lines. I tried only once to contact the surveyor...was out working. The surveyor is the most expensive rate I'd ever seen. But as it's said...you get what you pay for.

    I'm really not to sure as to what I'm allowed to say, or write that may not be acceptable...so I've been writing only on the edge of the detailed matter.

    The last post I wrote...I do apologize for any wrong words spoken out of haste.

    In the mean time I've been researching and reading Calif. building codes (residential),
    permit guild lines, city municipal code...there's a lot of info !! But it's time and work which seems to be good for learning and knowing how to put the pieces together.

    I would like to ask: Is there anything online that I can obtain like: public records of the specific area ? I found one site called: The Sanborn Fire Insurance Maps. These maps were illustrated like blueprints for each and every building, fencing, etc...for fire insurance purposes. I'm trying to obtain a specific map...it costs...but don't really know if I can obtain a map.

    Let me know if you think of anything aside from the information you given me...it's much appreciated.

    Wish me luck !!

  9. #19
    Join Date
    Dec 2008
    Location
    El Dorado County, CA
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    348

    Default Re: Property Boundary Line with Our Neighbors

    Your surveyor should be able to research all of these things for you, and more efficiently than you would be able to. If there are particular types of public records you are looking for, ask your surveyor if that is the type of record he will obtain, and if so, to provide you a copy. Building codes and records may or may not be useful in a limited way, depending upon the situation.
    I'm a surveyor, not your surveyor & not an attorney.
    Advice is general survey, not legal. Hire a local professional for specific advice.

  10. #20
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    Apr 2011
    Posts
    11

    Default Re: Property Boundary Line with Our Neighbors

    Hi...it's me !! Sorry it's taken me sometime to write back on this post. I was wondering if any of you know the Cailf. building codes pertaining to a retaining wall partition on the boundary line in question and most importantly...how far of a distance must a retaining wall partition be in distance from our garage ? This would be the neighbors retaining wall partition and the distance is about
    a foot in measurement to our garage wall.

    I tried to research the building codes...but I can't seem to find anything regarding permanent structures such as concrete, cement retaining wall partitions and the distance. I know if you add on
    to an original home...the distance from the home to the garage "must" be 10 feet (minimum) or more in distance from the house to the garage. Can anyone help me or have the answer to the distance for the retaining wall partition (the neighbors) to our garage ? I know there is a code for this as it would have to be cleared, not only with a permit...but a clearance of a inspector as will.

    Still doing a lot of research and I think getting the correct, actual property line isn't going to be as hard as I thought. Especially if there are no permits, inspection of permanent structures...and that it's on a boundary line with no survey done to state or document it's on your property and not the neighbors. This would be a violation of many on the boundary line.

    Just need help in the question asked about. Distance of neighbors retaining wall partition to our garage wall. The height of retaining wall partition is 6 feet.

    Thanks...

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