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  1. #1
    Join Date
    Jun 2011
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    2

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

    My question involves personal property located in the State of: Virginia
    We bought a house about 5 months ago. On one side border of the backyard, there are two fences immediately next to one another, a wooden privacy fence on the outside (my neighbor's side) and a chain link fence on the inside (our side). We were told by our realtor that the chain link fence was ours, which we didn't question since the neighbor had a privacy fence in his yard.

    So the chain link fence was a mess, it was rusted and damaged in places, it had trunks from large shrubs/bushes growing between the two fences and also growing through the mesh of the chain link fence, completely entwined. Two of these trunks had grown up against the neighbor's privacy fence, bowing the wood. There was also a good amount of poison ivy growing between the two fences as well as through the chain link fence. We have two very small children and a dog so for safety and aesthetic reasons we decided to remove the chain link fence altogether.

    In the meantime, a professional stump grinder we hired accidentally broke the mesh of one panel while grinding out a stump near the chain link fence. We told him not to worry about it since we had planned on removing it anyway.

    A week later, my husband went out and bought the materials necessary and spent the better part of his Saturday removing the mesh, cutting down all the trunks and tearing out all the poison ivy. He left the posts and top rail since the posts were embedded in concrete and he wasn't quite sure how to remove them.

    About 7 or 8 weeks later, my neighbor with the privacy fence came over and told me he was upset because we had removed his fence. He went on to say that BOTH the fences were his, his wife had cried all night because her father had erected the chain link fence 36 years ago and now it was gone, and also he relied on the chain link fence as a "safety fence" because parts of his privacy fence were warped and he has two chihuahuas that might escape into our yard without the chain link fence as a secondary barrier. I was a little taken aback because he had been in our backyard a couple of weeks prior talking with my husband for about 1/2 an hour, and he had not said a word about his fence being gone.

    So I apologized and explained that we had believed the fence to be ours, that we never would have thought he would have two fences. He said he wants us to replace the chain link fence.

    My question is this: is it reasonable for him to ask us to replace the fence considering he put up a 7 foot high privacy fence INSIDE this 4 foot high chain link fence, completely obscuring it from his view, use or maintenance? The fence clearly suffered from YEARS of neglect (even his privacy fence is obviously many years old) and was a safety hazard. We fully acknowledge that we removed the mesh from the fence. Had we thought for a second it was his fence, we would have asked him to make the repairs (though the fence was really irreparable). However, thinking it was ours and because of 1) the condition of the fence and 2) the fact that it was pushing up and bowing part of his privacy fence, we were trying to be good homeowners and good neighbors by removing it. We understand we made a mistake, but are we legally obligated to replace it or is there a reasonable set of circumstances that remove this obligation? If we are obligated, would putting up a better privacy fence of our own solve the problem?

    Thank you!!!

  2. #2
    Join Date
    Jan 2006
    Posts
    38,789

    Default Re: Are We Obligated to Replace This Fence

    is it reasonable for him to ask us to replace the fence considering he put up a 7 foot high privacy fence INSIDE this 4 foot high chain link fence
    it is reasonable for him to demand you compensate him for his damages you caused. It is not relevant this was a secondary fence. All that matter is it was his fence (if it actually is) and you took it down without his permission.

    If we are obligated, would putting up a better privacy fence of our own solve the problem?
    Not unless he agrees that that would be ok and fulfill any claims he has.


    Even though is was based on a mistake, it does not relieve you of any duty owed to the true owner.

    have you verified his claim to be true (the ownership issue)?

    You are in a bad situation. You removed an old dilapidated fence. He isn't due a shiny new fence. He is owed the value of the damages you caused. Depending on the actual condition of the entire fence, that may actually be very little. Do you still have the mesh that was removed? If so, I would suggest getting permission to reinstall that and for anything that is missing, purchasing that.

    btw: he does not have to allow you to repair the fence. You are liable for the value of your damages, not to return the fence to the condition it was.

    have you had a survey to actually determine the lot lines? Considering this is a new purchase, if you don't have one, it might be a good idea. It might be beneficial in this situation even.

  3. #3
    Join Date
    Jan 2011
    Posts
    105

    Default Re: Are We Obligated to Replace This Fence

    I agree with the survey. I also think you need to contact the previous owners and ask them about their recollection as to who owned the fence.

    I would also double check with the county that they or their family members have owned the house for 36 years. The reason I would do that is because of your story - he mentioned nothing about the fence and was sociable at first then claims his wife cried all night because of some sentimental attachment to a dilapidated fence. Doesn't sound right so I would confirm all claims that they make before I would believe them.

  4. #4
    Join Date
    Sep 2010
    Location
    Oklahoma
    Posts
    695

    Default Re: Are We Obligated to Replace This Fence

    Quote Quoting Harriet
    View Post
    I agree with the survey. I also think you need to contact the previous owners and ask them about their recollection as to who owned the fence.

    I would also double check with the county that they or their family members have owned the house for 36 years. The reason I would do that is because of your story - he mentioned nothing about the fence and was sociable at first then claims his wife cried all night because of some sentimental attachment to a dilapidated fence. Doesn't sound right so I would confirm all claims that they make before I would believe them.
    As mentioned, definetly get a survey done to determine the property lines. Speak with the previous owner to determine who installed the fence and under what conditions if possible. If the neighbor installed it on your property, but with the prior owners consent you need to document that to stop any adverse possession claims. I agree with Harriet about the wife's emotional distress, if she was so attached to the fence why hide it behind a privacy fence?

  5. #5
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,558

    Default Re: Are We Obligated to Replace This Fence

    We were told by our realtor that the chain link fence was ours
    I would off-load the liability. It's not surprising how much of this misrepresentation goes on when someone sees the cost of a survey as standing in the way of their commission. I have personally seen realtors in a heavy sweat when they were caught in the act. Significant cash damages and probation.

  6. #6
    Join Date
    Jan 2011
    Posts
    105

    Default Re: Are We Obligated to Replace This Fence

    Quote Quoting LandSurveyor
    View Post
    I would off-load the liability. It's not surprising how much of this misrepresentation goes on when someone sees the cost of a survey as standing in the way of their commission. I have personally seen realtors in a heavy sweat when they were caught in the act. Significant cash damages and probation.
    Just trying to understand what you are saying. Are you saying that they should tell the realtor to pay for the survey due to the realtor's misrepresentations?

  7. #7
    Join Date
    Aug 2010
    Location
    Maine
    Posts
    206

    Default Re: Are We Obligated to Replace This Fence

    I think what he is saying (please correct me if I am wrong) is to hold the realtor liable for the statements he/she made concerning the location of the fence as the line. I think his point is that the realtor is potentially the person who started the mess.

    The only person, in all 50 States, who can legally make a statement as to the location of a record boundary, is a Professionally Licensed Land Surveyor.

  8. #8
    Join Date
    Jan 2006
    Posts
    38,789

    Default Re: Are We Obligated to Replace This Fence

    and in some cases, you might catch a real estate agent misrepresenting property but quite often, there is enough ambiguity in their statements they avoid liability. It's definitely not a sure thing with the agent.

    It still doesn't fix the situation between the two neighbors. OP is going to owe for the fence repair. He can then take action against the agent.

  9. #9
    Join Date
    Jun 2011
    Posts
    2

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

    Thank you all for your replies. After further investigation, my neighbor does have a chain link fence going all the way around his yard, and though he weirdly has a privacy fence on the inside of the chain link fence on two sides of his yard, it does seem like the fence is his. I don't really question his ownership of the fence... we should have examined everything more thoroughly before altering the fence. We just took what our realtor said about the fence being ours and assumed our neighbor had just the one fence and ran with it. I don't think that was a crazy assumption but in any event it was an incorrect one, so too bad for us I guess! As for a land survey, I would love to do that but are on a VERY tight budget... my husband makes a very modest salary and I left my teaching career to be home with my babies. Paying to replace his fence is already going to be a financial issue, so we can't add on to that with the cost of a survey right now.

    I do believe my neighbor's story about his father in law installing the fence, he had told us prior to this situation that his wife's father had owned the house since it was built and then later gifted it to them. It is a huge mystery to me why they hid the chain link fence with a privacy fence if it was so important to them, but I guess that's not relevant in the grand scheme of things. I just wanted other opinions. I do know that if the situation were reversed, I personally would not have the nerve to ask my neighbor to replace that fencing considering they were told it was theirs, the condition it was in and the fact that I myself had completely ignored it for years and then walled it off with another fence, but I guess that's just me. Technically we ruined his fence, no matter how dilapidated it was, so we have to make it right.

    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.

    And by the way, my realtor was my aunt (I know, I know...) so no chance there of asking her to defray any survey costs.

  10. #10
    Join Date
    Jan 2011
    Posts
    105

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

    Quote Quoting shamity
    View Post
    And by the way, my realtor was my aunt (I know, I know...) so no chance there of asking her to defray any survey costs.
    Ouch. . . . !

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