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  1. #1
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    Feb 2012
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    Default Neighbor's Fence on My Land

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

    Can I remove my neighbor's fence if I have a recent survey showing that it’s indeed on my land? The fence posts are rotten and on the verge of completely falling in my pool. In an effort to resolve this amicably, I've called him several times and sent a certified letter about the issue and I even offered to pay 50% of a new fence that's placed on the property line. He's unreasonable and thinks the fence is in good shape and doesn't want to replace it. I'm very confident that he's not paying taxes on the few inches that he's encroaching.

    Provided I replace the fence without his permission, is it prudent to do the following:
    1. Place the new fence on my land (mm from the property line) so I avoid any future fence issues.
    2. Return the dilapidated fence to him by staking it on his property. I'm concerned that he may sue me for disposing of a fence that he paid for. Putting the fence on his property will also save me money in disposal fees.

    OR, is it more prudent to 1. Place the new fence on the property line and 2. Dispose of the old fence.

  2. #2
    Join Date
    Oct 2011
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    314

    Default Re: Neighbor's Fence on My Land

    Question: How long has this fence been on your side of the property? The California statute § 322 regarding adverse possession is five years.

    Additionally, I would not touch a thing even though he is (probably) technically trespassing on your property. The sad/bad aspect about land wrangling is that when neighbors become unreasonable - lawyers become a costly and necessary part of the process.

  3. #3
    Join Date
    Feb 2012
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    Default Re: Neighbor's Fence on My Land

    He hasn't been paying taxes on it so adverse possession is not an issue here. I've read many threads where people quibble about adverse possession but for this instances lets suppose that its not part of the equation. thanks!

  4. #4
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    Oct 2011
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    314

    Default Re: Neighbor's Fence on My Land

    Paying taxes on encroached property (in some states) does help adverse possession claims. AP can be a very complex argument and not as simple as just paying taxes.

    With regard to your situation I doubt anyone will put up much of a stink with regards to a few inches here and there - however, people get especially prickly and nasty when it comes to neighbors taking down fences, shrubbery without express communication, or understanding. If you haven't already get a lawyer to write a letter to the neighbor and put it in black and white.

  5. #5
    Join Date
    Oct 2007
    Location
    Ohio
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    2,592

    Default Re: Neighbor's Fence on My Land

    As the fence posts are on the "verge" of falling into your pool, waiting the brief time you envision for that event might be a good approach.

    In recent decades California courts have become less likely to award adverse possession and prescription claims in what they consider to be neighbor spats over a few inches of property, replacing them with other remedies and theories frequently leaving the encroachments in place for the time being.

    You probably have some significant exposure in arbitrarily removing the fence, and you have constructive notice that the neighbor has refused your proposal.

    Consider letting nature take it's course. Once it falls over it is another matter.

  6. #6
    Join Date
    Feb 2012
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    3

    Default Re: Neighbor's Fence on My Land

    UPDATE: the fence has toppled over completely on my land.

    What's advisable (again supposing adverse possession is not in play) :

    Provided I replace the fence without his permission, is it prudent to do the following:
    1. Place the new fence on my land (mm from the property line) so I avoid any future fence issues.
    2. Return the dilapidated fence to him by staking it on his property. I'm concerned that he may sue me for disposing of a fence that he paid for. Putting the fence on his property will also save me money in disposal fees.

    OR, is it more prudent to 1. Place the new fence on the property line and 2. Dispose of the old fence.

  7. #7
    Join Date
    Dec 2008
    Location
    El Dorado County, CA
    Posts
    395

    Default Re: Neighbor's Fence on My Land

    OK, I've been pecking away at this response in between other work related tasks throughout the morning. When I started, only BenT had replied (once). My longer reply is still valid, but you are now in an even better position to just replace the fence, with or without the neighbor's participation.

    In CA, payment of taxes is a required element of a valid AP claim. The determination of whether one has actually been paying taxes on the property per the record description or to whatever is contained within the fences and other lines of occupation depends upon the property description in the deed, and the description of the assessment.

    Anyway, here's my response started from earlier:


    I presume the recent survey is a boundary survey performed by a licensed surveyor. If that survey was filed on a Record of Survey or Corner Record with the County, that’s even better. If the surveyor showed the location of the fence relative to the property boundary on the recorded map, that’s best of all.

    Did your previous correspondence state anything about you removing and replacing the fence on your own if you received no response from the neighbor? Did you specify a date?

    With the fence in danger of falling down and definitely needing replacement, I think that your basic strategy is sound, but it wouldn’t hurt to spend a little time with a local attorney to ensure you have your bases covered.

    Civil Code of Procedure (CCP) §322 et seq. is not an absolute recognition of any fence existing near a property line for 5 years or more as the settled line. This is a statute of repose, but since you have had a surveyor show that the fence is not on the property line, if your neighbor now wants to challenge those findings and make a claim to the fence location, he must show that the fence was built with care to be on or along a validly marked and established location of the property line.

    If your surveyor identified the line from original survey monuments marking the line, it may be difficult for your neighbor to assert that a fence in a different location was carefully located along the line.

    But then, you said that the difference is a few inches. Depending upon the type of fence, the length of your common line between monuments, and the nature of the terrain along that line (is it flat & clear, or hilly and brushy?), a few inches might effectively be “right on” the line.

    By way of brief education of survey measurements may be helpful to you. When a surveyor makes measurements to his control or traverse points (random points the surveyor uses to measure from and mathematically connect the various property corner monuments and other points of significance together), and to survey monuments that he finds or that he sets, those measurements are made very carefully. Typically, in a lot survey without particularly difficult site conditions, any particular measurement made between control points and/or monuments can be repeated to within ¼”.

    When locating things like existing driveways, sidewalks, decks and fences, the measurements are generally a bit less exacting. This is partly because such features are normally shown for reference rather than being definitive of the property lines, and partly because of the nature of what is being located. When locating a control point or property corner monument, the objects marking the points are normally designed to provide a definite point to measure to or from. It may be a punched dot or chiseled X on the top of a metal or plastic monument cap, or it may be a nail in the ground or tack on top of a wooden stake as a control point. In each of those cases, the point that can be identified on the object is between 1/32 and 1/8 of an inch in size.

    Points on or along existing features, such as fences are less definite. When measuring the edge of a driveway or sidewalk, the surveyor may make a small mark with a lumber crayon, marker, or paint spot if he foresees the possibility that he might need to recreate that measurement (sometimes surveyors make such marks just to keep track of which features they have located vs those they have yet to locate if there are a lot of such features to map). Along such features, the surveyor can recreate the same line fairly closely if need be, but it is often difficult to recreate the exact shot location closer than a few inches.

    Features such as fences can often be a little more definitive in that the surveyor can keep track of particular posts located. Depending upon the type and condition of the fence, the surveyor’s measurements of its location may be accurate to +/- 1”, or the uncertainty may be several inches. A fence with very straight and vertical metal posts can be located more accurately than can one with large wood posts and which may be leaning significantly one way or another. Some surveyors may measure to the center of the posts, while another might measure to the face of the fence. On a typical wood privacy fence common to the residential subdivisions in CA, that can make a difference of 3” to 5”. If the post is leaning, most surveyors will try to estimate where it would be if it were to be straightened up, but some might just locate the point where the post enters the ground, and still others might be less locate it at the top of fencing (or possibly some other point that tends to approximate an “average” location of a leaning fence).

    IMO, best practice is to estimate where the fence would be if it were straightened and then note whether it was located at posts or at the face and if it is leaning, note which direction, but not all surveyors are that detailed or precise. Even if they are, estimating the straightened location of a leaning fence still leaves several inches of uncertainty in location. So if the fence in question is a wood fence which is heavily leaning, an indication on the map that it is one side or the other of the property line by a few inches might well place it within the range of positional uncertainty of the best measurements the surveyor could make.


    Getting back to the significance of the fence with respect to the statute of repose, a fence that is within a few inches of the monumented or record property boundary line is generally unlikely to overcome the true line. That’s especially true if the fence is in poor repair and it can be argued that when built, it was essentially on the true line.

    Where a fence may prevail is in cases where there is a significant difference in location of the fence and location of the record line according to the terms of the deeds, but the fence was originally built per some good faith effort to locate the true line and has been recognized as the property line by the owners over an extended period of time (generally 5 years or more in CA) as demonstrated by their actions over that time.


    Per Civil code §841 states that the landowners on each side of a property boundary are jointly responsible for the maintenance of any [survey] monuments placed to mark the line and any fences or other enclosure built [and intended to be] on the line.

    If the fence is in danger of falling down, you and your neighbor are jointly responsible for repairing or replacing it. It doesn’t really matter who built the fence in the first place. If your neighbor refuses to help, and you can adequately show that it is in need of replacement, you should be able to do so.

    If your previous certified correspondence did not state that you would replace the fence with or without your neighbor’s consent, and give a date certain allowing adequate time for a response, send another letter that does so.

    It would be a good idea to also state how you will handle the materials salvaged from the old fence, that unless he participates in the fence replacement or directs you to dispose of the materials, you will assume that he wishes to retain them and that you will carefully stack them at a particular location on his property near the property line. And then take all reasonable care to preserve as much of the material in some usable state and stack them as you indicated.

    If you presume that he does not want the fence, he may sue you for a claimed value of those materials. If you stack the materials and it turns out he didn’t want them, he may sue you for the cost of disposal. But if you have a well-documented record of attempting to get your neighbor to participate or at least provide direction regarding the materials, I think it unlikely that a judge would sympathize with him for ignoring you and would see your having neatly stacked the materials as a good faith attempt to preserve any which may have been of value for the neighbor (pictures of the fence replacement process and the neatly stacked materials might come in handy in case such a dispute arises).

    Your new fence should not deviate significantly in type/style or cost of replacing the existing fence with new materials of the same type. If you were to replace an existing fence that has 4x4 posts and redwood board fencing with new pressure treated 4x4s and redwood board fencing, you stand a very good chance of being able to obtain a small claims judgment to recover ½ the cost of replacing the fence from your neighbor. If on the other hand, you replace such a fence with river rock & mortar columns with wrought iron sections between them, count on footing most or all of the bill yourself, with little or no cost recovery.

    The key is to not be unreasonable at any step, being perhaps more than reasonable in your efforts to permit your neighbor to join the process and participate in replacing the fence.

    Also consider that the real reason your neighbor does not want to replace the fence at this time may not be that he really thinks it’s in great shape, but perhaps it’s because he has no way of paying his share of the cost at this time. Some people are embarrassed to just come out and say it when that may be the case. The economy has a lot of people trying to stretch less money to cover their living expenses and leaving them with little or nothing for such things as property maintenance issues which when compared to making the mortgage and buying groceries, are things they view as being able to defer. If that’s your neighbor’s situation, are you willing to let him pay you what he can, when he can, even if it takes him several years to pay his portion in full?

    I put that out there because most often, keeping good relations with neighbors is more important than whatever it might cost to carry the cost oneself in order to get the job done.


    Since CA has the joint responsibility law, unless your neighbor is actively and aggressively fighting you in replacing the fence, I recommend placing the new fence as closely as possible to be centered on the property line. If you or your fence builder is not able to reliably stringline the property line to ensure as accurate placement, hire your surveyor to return and place some intermediate points for you along the line.

    If your neighbor is actively and aggressively fighting you on it, and it’s not simply a matter of offering to cover most or all of the costs at this time, it may be that you are left with building a new fence just on your side of the line right next to the old fence. As a surveyor, I hate it when I show up on a job and see that situation because it usually means that either my client or his neighbor is a cantankerous jerk who is going to make my job difficult. Try to use diplomacy to avoid the double fence situation. But if it’s a matter of safety (fence falling in pool or on someone, pets or small children getting out of the yard, etc.), a double fence is better than property damage or injury due to a failing fence.

    I hope that this situation eventually works out satisfactorily for both you and your neighbor.

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