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  1. #1
    Join Date
    Oct 2008
    Posts
    18

    Default Neighbor Builds Fence - I Take Down - Trouble

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

    Neighbor has survey and neighbor and I watch surveyor mark property line 1 1/2 feet out from my foundation on old victorian house.

    Neighbor digs 3' deep hole against my foundation and pours cement for first support post of fence and continues to build 40' fence from my house to alley on my property. I tell him to stop, he says pound sand. I go to City, he has permit to build it on his 30' wide lot, but now created a 32' wide yard which includes my property. City refuses to come out though permit says "we inspect work". I make stink, City comes out and says he has 32' wide yard and is in violation of permit, will stop work. Bldg Dept guy types stop work order, gives to City Atty who says has no authority to stop work--it's civil matter.

    I go to police to file report--civil matter. I go to City Atty--civil matter. Call 4 civil and real estate attorneys, say don't do little fence disputes. I go to neighbor, tell him I'm going to remove, says will remove himself, 2 weeks go by, doesn't. Send certified letter, not accepted. Hire contractor, neighbor says will have arrested.

    2 weeks later I saw fence posts at base, lay panels on his yard. Neighbor buys brackets, puts fence posts and sections back up by bracketing onto stubs I left above cement footings! Police come two days later and cite me for "destruction of private property". I may be guilty of that code violation.

    Neighbor committed two class B misdemeanors by giving false information to police officer saying he owns land under fence and "'invited reliance by a police officer on a boundary mark he knows to be false to implicate me in a crime".

    Neighbor committed class A misdemeanor by illegally placing a surveyor's mark in cement next to my garage for purpose of taking my property (drilled hole, made chisel marks and painted to fake). Surveyor called, didn't mark cement, said illegal for neighbor to have done).

    Neighbor committed class C misdemeanor by trespassing on my property to build the fence, continues to deprive me of use or access to my property.

    Committed a class D felony damaging real property by digging against my tired, old brick foundation with loose chinking and pouring cement in, added fill dirt to change the grade on my property that allows rain runoff downhill into my basement. Police won't take report because already charged me based on neighbor statement. Will have to subpoena to my court date.

    Surveyor required by Statute to provide copy of his notes to anyone who requires it but won't give me copy or let me pay for him to re-visit his survey (charged neighbor $450) because "neighbor is his client", not me. Two other surveyors want $1200 and $1700. Will subpoena surveyor to my court date.

    Supreme Court type question: does property that has been permanently affixed by one person to another's land remain the private property of the one? OR Does property that has been permanently affixed to someone else's land cease to be the property of another?

    Technicality question: If two property owners agree on the property boundary (as we do), but one purposely builds on the other's property anyway, is it a boundary dispute (civil matter) or a "stupid criminal" matter?

    Real World question: what the heck do I do now? I'm starting to think a judge could be as wacko as all except the City Bldg Dept guy and make me pay to build him a new fence on his own property. Any help appreciated, Thank You

  2. #2

    Default Re: Neighbor Builds Fence - I Take Down - Trouble

    Interesting that it was a civil matter when you complained but then they were willing to cite you. Who does he know at city hall? Once you notified him to remove the fence by certified letter you were entitled to remove it if he did not. The fact he refused the letter should make no difference. Take it unopened to court with you. Check to see if you are entited to a jury trial and the procedures to demand one.

    You need to have a talk with your city councilman. If they wouldn't get involved to start with, then they should have stayed out of it or cited both of you and let the judge sort it out.

  3. #3
    Join Date
    Oct 2008
    Posts
    18

    Default Re: Neighbor Builds Fence - I Take Down - Trouble

    Thank you so much for a 'voice of reason' in the sea of buck-passing I'm wading around in.

    Sound advice, and I will take the letter with me (thankfully the lady at the post office told me not to open it when she gave it back to me and said 'take it with you if you have to go to court').

    I've also asked to talk to the Prosecuting Atty if she will meet with me as the officer, when I signed for the citation, suggested I might talk to her because she decides whether to proceed with charges based on the police report. If she won't meet with me, I will take your advice to go to my councilman.

    I hesitated to do that as I didn't want to make them look stupid publicly (wanted to keep it our little secret) and really turn them against me if someone could see the light and stop the insanity. But I have nothing to lose now.

    I'll also inquire about a jury vs judge to have the best chance--I appreciate that.

    Any thoughts on the Supreme Court type question about their property remaining their property--on my property? Only for the 10 years it takes to own it I guess, haha. Thank you again

  4. #4
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,558

    Default Re: Neighbor Builds Fence - I Take Down - Trouble

    Yes, you have had some good advice, both from lwpat (no surprise there) and from the lady at the post office.

    You seem to be able to put your thoughts into words, so I would reinforce the advice to go to your elected representative(s) with your story. If a verbal conversation does not produce results, resort to written complaints. A patient, polite, but relentless pursuit of this approach can work if you take it one step at a time. I have seen it work.

  5. #5
    Join Date
    Oct 2008
    Posts
    18

    Default Re: Neighbor Builds Fence - I Take Down - Trouble

    Thank you both so much--it was this forum and the advice I received that renewed my optimism about this merry-go-round situation. I'm trying to also see the humor in it.

    I went to the police department the other day to file a report of the offenses he's committed against me since it now wasn't a civil matter to them. But they refused to take a report now too--I went home, read that's a violation of Missouri Codes and Ordinances which say an officer will take any report from anyone, I went back and asked for help again.

    The officer who had come to the property was called in and explained their narrow vision of the situation. Neighbor says he owns fence, neighbor shows illegally made surveyor's mark (confirming my suspicion), fence posts are damaged, I did it, citation written. I understood and thanked him.

    But here's where the humor comes in--he said if the neighbor put his bicycle in my yard I have no right to damage it. I should just put it back in his yard. I said I understood, but when the neighbor attaches 40 feet of his personal property to what amounts to a 3' deep cement foundation in 7 places on my property and affixes it to my land, I can't pick it up and put it back in his yard. He said they don't go as far as "affixed to the land", and we laughed and he said I could always go back to the Building Dept!

    On the way home, I realized (for the same amount of money it will cost for a civil suit) I could pick it up and put it back in his yard??? Men could dig around the cement footings to free them, and it would be possible for a crane to sit in the alley, lift the entire thing about two feet over and set it down in his yard! I'd love to see the officer's faces if they got that call--

    "Help, she put my property back in my yard"!
    "Did she damage it?"
    "No, but it isn't on her property where I wanted it to be"
    "Okay, have a nice day"

    If the Prosecuting Atty won't see me, I'll send her a letter with copies of documentation (an email I got from the City's Chief Bldg Officer saying the neighbors agreed in August that it was on my property and they'd saw off the posts at the bases to prevent further damage to my foundation--but never did it) and expect the best.

    If I go to court, and am 'narrowly' found guilty of destruction of property, I destroyed 3 vinyl clad 4x4's, and there is a $200 fine for the Ordinance violation. I'll present it as sawing off the posts after giving him 2 months to do it as he agreed to do.

    I have a beautiful, framed, time-elapsed picture of horses moving on a carousel with the quotation, "Round and round she goes, where she stops nobody knows". One step at a time, as you said. I'll let you know, and thank you again.

  6. #6
    Join Date
    Oct 2008
    Posts
    18

    Default Re: Neighbor Builds Fence - I Take Down - Trouble

    OMG, I forgot to mention neighbor listed his property for sale, which is what prompted me to take action after waiting 2 months.

    I also need to tell the Prosecuting Atty he appropriated ("stole" according to Missouri Statutes) my real property (which has a true market value in US dollars, even in a declining market) for his own use--no idea if stealing property is a misdemeanor or felony--has deprived me of the use of it, is attempting to sell about 180 square feet of my stolen land to an unsuspecting buyer and has an unknowing Broker working hard to help him do it!

    He completed the Seller's Disclosure Form without disclosing he's aware of any dispute over the land he built the fence on (I think that's another crime).

    How much is a crane and a few good men?

  7. #7
    Join Date
    Jan 2006
    Posts
    38,345

    Default Re: Neighbor Builds Fence - I Take Down - Trouble

    have you considered calling the broker and telling him there is a dispute concerning the property line?

    I would bet your small claims court limit is great enough to recover the costs of moving the concrete and fnce. Get an estimate and sue the neighbor for the costs.

  8. #8
    Join Date
    Oct 2008
    Posts
    18

    Default Re: Neighbor Builds Fence - I Take Down - Trouble

    I've thought about when to call the Broker and felt I should wait until I see if I can get the Prosecuting Atty to ask the neighbor to show the survey as part of investigating my "crime" this week.

    She may/may not be in a position to ask for it. She also isn't in a legal position to settle any property issue or order him to remove it, though her request for the survey could give me access to it.

    If she won't/can't get the survey, I'll go see the Broker.

    The survey would give me the proof I need to be able to have it dug up and placed on his property piece by piece--no damage.

    Good thought on Small Claims--the limit is $3000--enough to get 'er done. I don't know if I can sue based on an estimate or if I pay for the work and sue for reimbursement, but I'll find out. I appreciate your thoughts.

  9. #9
    Join Date
    Oct 2008
    Posts
    18

    Default Re: Neighbor Builds Fence - I Take Down - Trouble

    Update:

    Met with RE Broker who listed neighbor's property and received copy of Seller's Disclosure Statement. Neighbor failed to disclose any knowledge of encroachment, fence question, etc.

    Form says Do Not Leave any Space Blank (underlined, bold). Neighbor left "Are you aware of any shared or common features with adjoining properties (e.g., walls, fences, etc)" Blank. "Are you aware of any: Existing or threatened legal action affecting the property" Blank. "Are you aware of any encroachments which affect the property"--checked box saying NO.

    Broker will inform neighbor Broker is aware of assertion fence is on my property, possible title problem once lawsuit filed (as I wrote neighbor 60 days ago when he agreed to take down and didn't), and possible fraudulent representation, upon initial viewing by potential buyers that fence and my land are included in the sale. Said if neighbor wants to change Seller's Disclosure form he can, or Broker will write in and disclose it himself.

  10. #10
    Join Date
    Oct 2008
    Posts
    18

    Default Re: Neighbor Builds Fence - I Take Down - Trouble

    Update:

    Finally got my Councilman to get me appt w/City Mgr, showed deeds to neighbor's property and mine (each bought 30' lot). Showed neighbor's surveyor's report (don't ask) showing neighbor has 30' wide lot--handwritten on plat by surveyor with locations of lot boundary markers (surveyor's proof neighbor actually HAS 30' by survey). Showed video of string line from rebar in front of lot with orange spray paint to make string stand out in grass, and 32' wide side fences on his property (each on adjoining lots) as measured by Chief Building Officer in August.

    City Mgr ordered Bldg Dept to issue stop-work order on neighbor's permit (against wishes of City Atty who's still rambling about poor survey equipment in 1889). Stop-work order issued.

    Received bid of $1200 today for removal of fence and footings and restoring grade by contractor. Another bid scheduled for tomorrow.

    Went to police department to file police report for damage to my property. Told (as in August, Sept, Oct and now Nov) they will not take a police report because it's...you guessed it..."a civil matter".

    This is getting so old--$1200 in property damage isn't a civil matter--it's a Class D Felony in Missouri to cause damage to real or personal property of another in an amount exceeding $750. He violated the permit, committed a felony by knowingly/willfully damaging my property, and I can't report it?

    I've copied about 20 Appeals Court cases supporting my owning the fence (thanks to a great lead from Iwpat), but I don't want to own the fence! I tried to give it back, and he rebuilt it on my property again!

    Does it take some overkill thing like the Civil Liberties Union to step in and say "Hey, everyone has a right to their property--undamaged--and it's obviously damaged, so take the stupid police report!" What am I missing?

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