Partially Removed a Fence that Neighbor Claims is His - Must We Repair It

[LandSurveyor]

Are you saying that they should tell the realtor to pay for the survey due to the realtor's misrepresentations?

No. NewtonsApple got it. The realtor created the problem by improperly and illegally asserting that the fence would belong to the buyers. I'll just guess that they possibly complained about the appearance of it when the realtor showed the property. Since it's an aunt, they are not going to take any action. But they should let the aunt know about the problem she caused, because the next time she misrepresents something, the buyer might not be so forgiving.

While I am editorializing, let me say that we regularly see here posts from people with problems which contain the phrase like "the realtor told us.....".

As a licensed surveyor for more than three decades I can tell the readers here that realtors do not like surveys or surveyors, and the reason is simple. The reason is that the survey might find a problem which the realtor does not want known; a problem which would delay or prevent the sale. And ironically most boundary surveys cost a lot less than the realtor's commission.

[jk]

As a licensed surveyor for more than three decades I can tell the readers here that realtors do not like surveys or surveyors, and the reason is simple. The reason is that the survey might find a problem which the realtor does not want known; a problem which would delay or prevent the sale. And ironically most boundary surveys cost a lot less than the realtor's commission.

this is one of the few times I would disagree with you LS, as least from my perspective. I used to be a Realtor and I would suggest that all buyers get a survey whether they could get the seller to pay for it or they purchase it themselves. When asked where a property line was on a property I was showing, the best I could give is; from what I understand, it is about..." if they wanted anything better, they needed to get a survey.

But they should let the aunt know about the problem she caused, because the next time she misrepresents something, the buyer might not be so forgiving.

absolutely agree

One technical question: do we have to literally replace it, or can we pay him the cost of the repair minus the condition (and how would we determine that?!?)? I am actually just hoping really that he will allow us to use the money towards a new decent quality fence... if we have to pay then I would prefer to put it towards something which would improve on both our properties! But maybe he's going to be a stickler about it, I don't know.

technically they are owed their damages. Yes, given the fence was dilapidated, it could be difficult to calculate the value. Sounds like it's time to get to know your neighbors and hopefully work out a compromise that is acceptable to all parties. Court can be quite expensive for both sides and somebody is still going to have to fix the fence. It sounds like an opportunity to make friends with the neighbors that will be there tomorrow, the next day, and on quite likely for a considerable time. Hopefully it will save both sides some money and repair any damages (to the relationship) that might have been caused by the unfortunate situation.

[eapls2708]

JK, as a realtor you were in the minority with respect to advising your clients to have a survey performed. In some areas, it might come out of the realtor's commission. In my area, either the buyer or the seller contracts directly with the surveyor. The realtor can't legally act as a go between. But my experience is that most realtors would choose to forego the survey because the buyers are often stretching the limits of what they can afford in the first place and/or the seller is unwilling to pay for the survey. Rather than factoring the cost of a survey in when assisting their client in negotiating price, as they would the mandated standard inspections, it is either an afterthought or an estimated cost that is about 1/4 to 1/10 of a reasonable estimate is plugged in as a placeholder. Once they actually look into real estimates from surveyors, they usually advise that it's not necessary because fences, utility poles, etc. appear to be "pretty close".


Shamity, the costs you are liable for on the fence are the replacement costs of a fence of like materials and the cost of labor to put it in. As long as you and your husband provide workmanship as good as an average fencebuilder, you can save a lot there. But you can't buy serviceable used materials of the type the previous fence was made of. You have no choice but to figure in the costs of new materials. Since there is no practical way to assess the value of the old fence as it stood in place, there is no sense in trying. If the fence was doing it's job, you are liable for the costs of building a similar fence capable of doing it's job. If the fence was largely fallen down and not doing it's job, you might be able to argue that it was of no value. But as long as it was standing, that argument isn't really available to you.

Hopefully your neighbor won't object to your putting up the type of fence you want and will find it an acceptable replacement.


Tell your aunt that the surveyors (and at least one former RE agent) are collectively scowling and wagging our finger at her for making a representation she should know better about making.


Here is a potential downside to your replacing the fence without the benefit of a survey. If at some point in the future, you do have a survey performed, and it shows this fence to be on your lot, your neighbor's attorney might succesfully argue that you acquiesced to (agreed to as evidenced by your actions) the line at the fence location and that it overrides the line of written title as a properly performed survey would locate it. I know you said money is tight, and I understand that, but I would be remiss if I did not advise you to have the line located by survey before replacing the fence.