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  1. #1
    Join Date
    Jan 2020
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    1

    Default Case Law Where Small Fence Encroachment Was Allowed to Remain to Avoid Removing Tree

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

    Is anyone aware of recent case law where a slight fence encroachment (a few inches in one part of the overall fence) was allowed to remain in order to avoid removing a mature large shade tree? The situation is that a boundary fence was replaced and the fence contractor offset one post a few inches to give clearance to this tree which is close to the property line. It may or may not be an encroachment (don't have a survey) but interested to see if anyone has heard of such a case?

    I know that there have been cases where courts allowed an encroachment where the harm to one owner was considerably less than the costs of abating, etc. Not sure about this particular situation though. Thanks.

  2. #2
    Join Date
    Mar 2013
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    17,604

    Default Re: Case Law Where Small Fence Encroachment Was Allowed to Remain to Avoid Removing T

    You want to make a federal case out of a few inches that saved a mature tree?

    And you don't even know yet if it is an encroachment?

    Jeez.

    Please, take your nastiness over to City-Data where they love debating with people like you.

  3. #3
    Join Date
    Oct 2006
    Posts
    15,983

    Default Re: Case Law Where Small Fence Encroachment Was Allowed to Remain to Avoid Removing T

    Quote Quoting adjusterjack
    View Post
    You want to make a federal case out of a few inches that saved a mature tree?

    And you don't even know yet if it is an encroachment?

    Jeez.

    Please, take your nastiness over to City-Data where they love debating with people like you.
    You are assuming that this is the neighbor that the fence may be encroaching upon asking the question. For all we know this is the neighbor who could potentially be doing the encroaching.

  4. #4
    Join Date
    Nov 2013
    Posts
    6,699

    Default Re: Case Law Where Small Fence Encroachment Was Allowed to Remain to Avoid Removing T

    The case law is pretty well set when it comes to encroachments on a property line. Your case is no different (assuming you are the encroached property owner).

    You could get a survey (and pay for it) and if the fence is on your property, get it removed. You would go to court for an order to have it removed (and pay big dollars for that too). Or you can just let it stay the way it its and if it is an encroachment on your property, send the neighbor a letter that states you acknowledge the encroachment and the neighbor has your permission to keep the fence where it is until such time as the tree is taken down. That give the neighbor a license (permission) to keep the fence where it is and you or your successors can revoke it at any time.

    Such permission would negate any claim in the future that the neighbor (or his successors) has any rights to claim an easement or adverse possession or a boundary by acquiescence to your land on the other side of the fence.

    FYI if the base of the tree is on the boundary line, you are joint owners of that tree and neither you or the neighbor can take it down without the permission of the other.

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