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  1. #11
    Join Date
    Nov 2013
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    6,890

    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    My point has been that some action taken by the neighbor (erecting a new fence) cannot suddenly make OP's fence non-compliant. I understand what the code official thinks could/might/may happen but I don't think he has any legal authority to compel OP to change his fence.

    The remedy to the potential problem would be to require the neighbor to either choose a different design of fence (one that has rails more that 45" apart according to the NY code) or move his fence off the property line.

    OP's fence is 48" high. What prevents a child (older child) from jumping the fence now? What child that can't get over a 48" fence is going to climb over a 72" fence?

    If you think about it, there is no combination of fences that would prevent the problem no matter how high they are.

    Who would be creating the attractive nuisance, the neighbor or OP? Who would be responsible if a child were able to get into OP's pool because the neighbor put up a 6 foot stockade fence?

  2. #12
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    I'm not disagreeing with ya bud. It just appeared you didn't understand the convoluted thoughts of the inspector where he could make such a conclusion

    Heres how you fight this

    your installation is compliant as it stands

    the neighbor installing the fence as he threatens would be what is not code compliant (if anything is) so he should not be issued a permit to install the fence as he threatens.

    Somebody might also let the neighbor know that if he builds a fence that allows a child to be injured, he will be included in any possible suit should a child be injured. Depending on how a court sees it he could be found 100% liable.

    I would bet the guys homeowners insurance would love to hear their customer is thinking about building a death trap for kids.

  3. #13
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    Nov 2013
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    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    Haven't you noticed that this dog gave up his bone?

    We are in agreement but I posted as I did because OP thinks he will find some code that addresses this situation. He will not. And he will not get anything in writing from some code official at the state level that clarifies the issue. That is just not how it works.

    The construction code official and a zoning official has discretionary power to abate, issue stop work orders, and violations, if in their judgment, there is a violation of the construction code, zoning code, or there is an unsafe condition that exists or is being created. However, OP is not the one creating the unsafe condition that the code official thinks is being created. Therefore, any action has to be taken against the person that is changing the statuesque.

    The local official can ask the local jurisdiction attorney or the state's attorney for an opinion on the matter. But OP cannot. The construction code and zoning code, as written, is the law and the interpretation of it is not up to the code official.

    What a neighbor does on their property cannot compel the other neighbor to do anything even under the color of law period.

  4. #14
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    As i said; if anything would be non-compliant it would be the neihbors fence and as such should not be allowed to build it.

    This way op doesn't have to argue proving inspector wrong. It allows inspector to think he is correct but demands city not allow a non-compliant fence be built. It is the new fence that would be the violation regardless of anything else. The code speaks to how a fence near a pool must be constructed.

  5. #15
    Join Date
    Nov 2013
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    6,890

    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    JK, it's not about what you said. OK? It's about what OP thinks he can get.

    Happy New Year.

  6. #16
    Join Date
    Jan 2006
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    38,867

    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    Okey dokey.

    And yes, a safe and happy new year to you and yours

  7. #17
    Join Date
    Apr 2012
    Posts
    29

    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    I actually appreciate your back and forth - because you are diving into good arguments!

    Another point to make here which flows from what both of you have said is this: I learned about my neighbor's threat FROM the local code guy. Because the neighbor TOLD the code guy that he would construct a fence on purpose to circumvent my pool code.

    So I know that the town has clear warning of the intent behind this malicious fence construction - and should NOT issue a permit to allow such a blatant attempt to circumvent pool safety.

    The guy can still build a stockade fence, he would just have to give himself the good side!

  8. #18
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,581

    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    This seems to me to be a classic "spite fence" situation.

    Although New York really has no statute except to prevent fences taller than ten feet, most states have no spite fence statutes at all.

    Yet spite fence cases continue to prodeed under the common law, which generally defines the spite fence:

    A. The fence builder's motive is malicious. This is frequently the most difficult requirement to prove, but the idiot neighbor has already admitted this in public, to public official(s).

    B. The fence serves no reasonable purpose. See "A". Malicious purpose is not a reasonable purpose.

    C. Use and enjoyment of property are harmed by the fence. Intent to put the swimming pool into non-compliance and make it unusable.

    The OP is probably seeing dollar signs and an unwanted court case at this point. I would guess that if the fence is built, and the OP is cited for non-compliance, he is likely headed to court anyway. It sounds to me as if the zoning guy is intimidated by the neighbor. I think the OP's idea of getting something in writing to zoning is a great idea. I would just urge a visit with a lawyer who would be doing the writing. The lawyer can discuss and advise the best approach, which might be an attempt to stop the thing cold, to let the fence be built without any effect on the pool, or some other solution.

    Such a letter will be a hot potato to zoning, who will pass it on asap to the city or county attorney, where hopefully clearer vision will previal. This could prove to be your least expensive solution overall.

    I would also say to the OP that you have not brought a problem to the forum, but more of a symptom. The problem is something else, and a nutcase neighbor will continue, in my expereince, to try to intimidate, irritate, annoy, and inconvenience you, which will eventually result in a need for a lawyer anyway.

    Good Luck!
    Resistance is not futile; it is voltage divided by current.

  9. #19
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    It seems questionable to me that building a property line fence would create a compliance issue for an otherwise full compliant fence around a swimming pool, that is entirely on an adjacent property. If the pool and pool fence were properly permitted, it would seem like a real stretch to argue that a subsequent boundary line fence would require the modification of the existing fence around the pool. That said, it is very unlikely that anything about a pool on a neighboring property would prevent the construction of an otherwise permissible boundary line fence on a neighbor's property, and it is implausible that a neighbor would be liable for injuries in the pool over which he has absolutely no control based upon the construction of that code-compliant property line fence.

    I would want to start by figuring out the inspector's reasoning for why the construction of a second fence, some distance away from the existing fence that surrounds the pool, would create a compliance issue in relation to the pre-existing fence around the pool. I can't speak with the inspector or review the relevant code provisions, which means I'm stuck -- so if you can't determine or figure out the inspector's reasoning and share it with us, as LandSurveyor suggested, I think you should consult a local real estate lawyer for an analysis of the situation.

    New York has a spite fence statute, which applies only to fences or structures in excess of ten feet in height:
    Quote Quoting New York RPAPL, Sec. 843. Fences and structures, when private nuisance.
    Whenever the owner or lessees of land shall erect or shall have erected thereon any fence or structure in the nature of a fence which shall exceed ten feet in height, to exclude the owner or occupant of a structure on adjoining land from the enjoyment of light or air, the owner or occupant who shall thereby be deprived of light or air shall be entitled to maintain an action in the supreme court to have such fence or structure adjudged a private nuisance. If it shall be so adjudged its continued maintenance may be enjoined. This section shall not preclude the owner or lessee of land from improving the same by the erection of any structure thereon in good faith.

  10. #20
    Join Date
    Jan 2006
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    38,867

    Default Re: Can a Neighbor's Fence Put a Pre-Existing Fence Out of Compliance

    I don't think anybody believes it changes the compliance of the pool installation. Even inspector seems unsure.


    In my opinion, if anything, the new fence would be the only construct in violation. The code section speaks to how a fence must be constructed when near a pool. Now logic says they are speaking to the fence enclosing the pool but apparently neighbor and inspector believe otherwise.

    So I say play their game. It isn't the pool that is at issue but the fence. It is independent of the pool even if it is the pool enclosure. If neighbor actually attempts to build the fence op contests the issuance of the permit based on the exact reasoning neighbor claims it would make the pool install non compliant. If the contest is rejected due to it being on the neighbors property or it not being the pool enclosure, op wins. If they deem the style of construct is relevant, permit cannot be issued to build an illegal fence.

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