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Old 06-16-2017, 12:02 PM
 
Location: Williamsburg, VA
3,550 posts, read 3,093,346 times
Reputation: 10433

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Heard from the realtor today. The good news is the wife has recovered and signed the forms we needed.

The bad news is our survey has been done and shows a corner of our neighbor's fence encroaching on the rear of the property.

At this point, I'm very tempted to say "Who cares?" We're talking about a 3/4 acre plot, more than half of which is woods. We're not ever going to build back there. In fact, we probably won't even go back there all that much. The encroachment represents a corner piece, about 17' in all.

After all the things we've asked them to change, is it worth it to ask for the fence corner to be removed? Or is that actually an important thing because it set some sort of legal precedence if we don't ask for it?
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Old 06-16-2017, 12:13 PM
 
3,604 posts, read 7,875,079 times
Reputation: 9174
My understanding of this sort of easement issue- either the fence has been there long enough for your neighbor to have already obtained a right to the area or he does not yet have that right. This depends on details and your state laws.

I think you would be opening a large can of legal worms by asking to have the fence removed, because it is not clear that the present owner has the right to remove it.

I am not a lawyer and I didn't stay at a Holiday Inn last night.
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Old 06-16-2017, 12:25 PM
 
28,455 posts, read 85,088,241 times
Reputation: 18726
Default Practical vs theoretical

Quote:
Originally Posted by Piney Creek View Post
Heard from the realtor today. The good news is the wife has recovered and signed the forms we needed.

The bad news is our survey has been done and shows a corner of our neighbor's fence encroaching on the rear of the property.

At this point, I'm very tempted to say "Who cares?" We're talking about a 3/4 acre plot, more than half of which is woods. We're not ever going to build back there. In fact, we probably won't even go back there all that much. The encroachment represents a corner piece, about 17' in all.

After all the things we've asked them to change, is it worth it to ask for the fence corner to be removed? Or is that actually an important thing because it set some sort of legal precedence if we don't ask for it?
I'm sure some folks with will weigh in with all sorts of theories about boundary disputes and adverse possession but as a PRACTICAL matter there is no reason to worry about this now. Fact is courts simply do not behave in a dunderheaded manner and in situations were there are no issues with egress (like for a driveway) or other planning / zoning issues like for lot coverage / setbacks nobody will really be hurt by this sort of thing.

What might not be a bad idea is to talk to the attorney that you probably have to help with the sale to draft a letter to the property owner who has the encroaching fence. The specifics of the encroachment can be called out with a copy of the survey. The attorney may suggest that when the fence needs to be maintained the assumption would be any encroachment would be corrected. The language should be sort of "lawerly" so that the neighbor does not get the impression this is something to blow off, but if you leave it open ended as to date of maintenance being at the discretion of the neighbor and "no desire to pursue legal action" that should not result in any sort of "bull in the china shop" trying to wreck what was probably an OK relationship of seller and neighbor...

Here is nice long boring and lawerly article that explains most of the issues:

Wisconsin Lawyer: Hey! That
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Old 06-16-2017, 01:47 PM
 
Location: NC
9,346 posts, read 13,980,872 times
Reputation: 20842
Simply write a letter to the neighbors saying what the survey found and that you give them permission for that piece of fence to be on your property for as long as the fence is standing. Then both of you sign the document, make a copy for each, and you are fine.

There is so such thing as adverse possession when permission has been granted. It will remain your property. I have read a lot about it.
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Old 06-16-2017, 01:49 PM
Status: "Made the Retirement Run in under 12 parsecs!!!" (set 12 days ago)
 
Location: Cary, NC
43,141 posts, read 76,719,434 times
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Quote:
Originally Posted by luv4horses View Post
Simply write a letter to the neighbors saying what the survey found and that you give them permission for that piece of fence to be on your property for as long as the fence is standing. Then both of you sign the document, make a copy for each, and you are fine.

There is so such thing as adverse possession when permission has been granted. It will remain your property. I have read a lot about it.
Agreed, although I might suggest you have any letter written by your attorney.

And, to me, a few inches may be immaterial, but not 17 feet, even on a lot that size.
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Old 06-16-2017, 02:52 PM
 
5,048 posts, read 9,574,341 times
Reputation: 4179
Yeah, if one is used to, say, a 1/4 or 1/3 acre yard it may seem minimal to have 17' taken from a huge yard like 3/4 acres. But it really is a good size piece out of a subdivision home lot.

If you don't have a lender, that part's not a concern.

If that's the case I'd have a short conversation to clarify just what happened, what the current owner's knew about this. Maybe they let the neighbor use part of their lot for a certain reason but nothing in writing. Maybe they never knew. Maybe the neighbor just assumed the fence should go straight back when actually the lot was not shaped that way. Maybe there was a tree in the way. Which would be good to know while you have current owners interested in talking about their property. You may just decide, based on whatever info the owners give you, to go ahead and close but pursue getting that fence in the right place.
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Old 06-16-2017, 02:52 PM
 
712 posts, read 835,430 times
Reputation: 994
Quote:
Originally Posted by Piney Creek View Post
Heard from the realtor today. The good news is the wife has recovered and signed the forms we needed.

The bad news is our survey has been done and shows a corner of our neighbor's fence encroaching on the rear of the property.

At this point, I'm very tempted to say "Who cares?" We're talking about a 3/4 acre plot, more than half of which is woods. We're not ever going to build back there. In fact, we probably won't even go back there all that much. The encroachment represents a corner piece, about 17' in all.

After all the things we've asked them to change, is it worth it to ask for the fence corner to be removed? Or is that actually an important thing because it set some sort of legal precedence if we don't ask for it?
Smart/quick/easy thing to do; (1) just buy the property (first) without worries,
and then (2)simply file an Affidavit of Fact stating the details of the encroachment of the fence and include copy of the survey illustrating the encroachment.

#2 above requires -0- interaction with (new) neighbor nor 'permission' , costs prolly under $50 to file with county, and puts a dead cold stop to ANY future possible 'adverse possession' claim or similar.
Since it's filed with the county, it will survive you, your heirs, and any future parties trying to 'take advantage'!

I'm not a lawer, and am not offering legal advice, but I did stay at a holiday inn once . . . .
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Old 06-16-2017, 03:36 PM
 
Location: Austin
7,244 posts, read 21,737,616 times
Reputation: 10013
Are you saying it's in your property by 17' or it's 17 sqft? Like you draw a box in the back corner of like 5'x3' (equals 15') type area? If it's 17 sqft, no biggie. If it's truly 17 feet into your property, what's the length of that encroachment? It needs to be multiplied out to see exactly what you're talking about, but that is A LOT to say you're not worried about it. My backyard is about 30' deep. If I was missing 17' of it, that would be extremely unacceptable.
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Old 06-16-2017, 03:55 PM
 
Location: Back in the Mitten. Formerly NC
3,830 posts, read 6,703,406 times
Reputation: 5367
Maybe she means it is over the line a few inches, but 17 feet in length?
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Old 06-16-2017, 05:05 PM
 
11,550 posts, read 53,004,833 times
Reputation: 16329
much depends upon the laws of adverse possession in the state this property is located.

in some states, the fence on your property may allow the adjacent property owner to move it to a minimal set-back distance from your residence, effectively "taking" the use of the land from you due to their adverse possession.

you might want to investigate how and when the fence came into being. If your seller (or prior owner) didn't know the fence was on his property and didn't contest it for the specified time of an adverse possession claim, you may have some quiet enjoyment issues in the future.

don't count on the courts to always "do the right thing". I've seen situations in a couple of states where a property owner deliberately fenced onto a neighbor's land a minimal distance. Later, when the adverse possession claim could be filed, they did so and moved their fence almost right up to the next house. The court ruled in the favor of the adverse possession claim, even while acknowledging that the lawyers who'd put up the encroaching fence did so with an eye towards a potential adverse possession in years to come. They did.

Nothing new about these situations. Many years ago, I had friends with one of the last remaining privately owned SoCal beachfront parcels in Del Mar, CA. Every year, they'd find a new lifeguard station located a miniscule distance onto their land ... sometimes, only by inches. The apparent plan was to get the use of their private property from the high tide average shoreline down to the water for public use without having to buy the property with public funds. At the time, the land from that high tide mark to the ocean was worth over a $mil. The private property had been operated as a beach resort for many years, with surfrider, cabana, lounge chairs for rent and a very popular beachfront hamburger/hot dog stand with outdoor seating. My friends had to wait each year for the lifeguard station to be placed and then get a new survey documenting the encroachment so that they could demand that the station be moved. It got to be quite a game, some years the station was moved in the dead of night several times during the summer season ... back onto the private property.
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