What does my next door neighbor have to do? (Austin: rental, crime)

[needtoknow44]

I approached my next door neighbor 6 months ago about going halfsies on replacing our mutual chain link fence on one side. It was severely compromised to due his bushes and trees growing completely through it. I never heard back from him, meanwhile my finances changed so I postponed the plan. Now he came to me a month ago and asked if I would go half on the same fence. I said I could not financially, now. Two weeks ago he left me a note saying he was having his swimming pool filled in, and the workers might have to remove the fence in order to get a bobcat in his backyard. He said he would have the workers put plywood down to protect my grass, and have them replace the old fence right back as soon as they finished. (I have 6 rescue dogs, three of whom are special needs and have to go out to do their business 5-6 times a day.) He said he would let me know if and when they did need to enter my yard, take the fence down, etc. Never heard a word from him. Yesterday, I came home to find the fence down, and 20 feet of my grass torn up down to dirt from a bobcat. Thank God I had not left any of my dogs in the yard, because no one called me, no one knocked on my door, etc. The workers left, and I went out to discover they had hauled off the fence! They left my side, part of front and a big slice of backyard torn up, left the yard open and unsecured, left bricks and fencing parts in my yard, as well as their empty coke bottles and trash. I called my neighbor to tell him about the situation, and he said he was out of town and wouldn't be back until mid next week. I said that would just not work. Friends pointed out to me that the contractors did not even remove all of his tree stumps (when they removed the old fence), and that a new fence could not be put up, or they would grow right into the fence again. Two stumps are big, about 2 feet wide, right on his fence line. After a day of my repeatedly trying to get blind, deaf, geriatric dogs to walk on a leash in an unfamiliar looking backyard, cleaning up after them all day, and taking off work to do this, my neighbor just called me with his help: He is having the contractor come tomorrow and "do only one thing": Put up plastic orange crime scene fencing. He added "We'll address the rest sometime later." Please, let me know what you think I should do next. I am not happy. Thanks.

[pbnj07]

Can't really help, but for starters, take pictures, pictures, and more pictures. Especially before and after that orange fence goes up.

He-said/she-said isn't worth the paper it's printed on.

[CarnivalGal]

You could also file a police report. If they damaged your yard, the construction company is legally responsible to fix it. And if they came onto your property without your permission, then that is trespassing.

[CptnRn]

Who's land is the fence on? The improvement survey you received for your property should show this if it is on your property. If it is on his land it belongs to him, he can remove it whenever he wants. But he is still liable for any damages to your property. If the fence was on your property, it belonged to you, then he could be liable for a good deal more, such as the cost of kenneling your dogs while the fence was down, but you might have to sue or go to small claims court to collect those damages. And doing so would probably ruin your relationship with your neighbor.

It is best to try and work these things out with your neighbors, as you will both still be living there after this is over. However, if he is not being cooperative and responding helpfully to your verbal contacts, I would give him a letter stating exactly what you expect him to do to make you whole (to correct the damages he has done). For example, regrade the yard and replace the damaged grass with sod, not seed, to repair it. Filing a police report would be a good way to document the damages. But you should also take photos.

If the fence was on your property, I'd insist he install an adequate temporary fence (these can be rented from construction rental companies around town), to keep your dogs from getting out until he replaces the permanent fence. If the plastic fencing is not adequate to keep the dogs in tell him this. Notify him that if the temporary fence is not installed you will have to put your dogs in a kennel and will expect him to pay for it*.

* Again if the fence was on his property, you don't have any right to expect these things.

[Creedmoor_Mom]

City of Austin - 311 Citywide Customer Information Center Web Intake Form

I'd also file a complaint with COA Code Enforcement...

Make sure you document document document!
Lots of pictures & video in case you need to go to court over this. Paperwork from having to miss work, etc...

[AusParent]

Originally Posted by mm57553

You could also file a police report. If they damaged your yard, the construction company is legally responsible to fix it. And if they came onto your property without your permission, then that is trespassing.

For APD to cite criminal trespassing, you have to show that you provided written notice to the offender in advance.

As @Creedmore suggests, your next step is to call Code Enforcement. They will send someone but it will take time. It's nearly impossible to get someone in Code on the phone. I checked city code and found references to fence setbacks, height and safety nuisances. But I may have missed something. American Legal Publishing: Online Library

Your last recourse is Small Claims court. You would have to prove financial damages. You would also want to understand your own legal responsibility (if any) for a fence on adjoining properties.

Sorry you're having to deal with this. Your neighbor's actions were thoughtless.

[Biscuits]

Originally Posted by AusParent

For APD to cite criminal trespassing, you have to show that you provided written notice to the offender in advance.

PENAL CODEÂ*Â*CHAPTER 30. BURGLARY AND CRIMINAL TRESPASS

Sec. 30.05. CRIMINAL TRESPASS. (a) A person commits an offense if the person enters or remains on or in property of another, including residential land, agricultural land, a recreational vehicle park, a building, or an aircraft or other vehicle, without effective consent and the person:

(1) had notice that the entry was forbidden; or

(2) received notice to depart but failed to do so.

(b) For purposes of this section:

(1) "Entry" means the intrusion of the entire body.

(2) "Notice" means:

(A) oral or written communication by the owner or someone with apparent authority to act for the owner;

(B) fencing or other enclosure obviously designed to exclude intruders or to contain livestock;

[CptnRn]

Originally Posted by Biscuits

PENAL CODEÂ*Â*CHAPTER 30. BURGLARY AND CRIMINAL TRESPASS

Sec. 30.05. CRIMINAL TRESPASS. (a) A person commits an offense if the person enters or remains on or in property of another, including residential land, agricultural land, a recreational vehicle park, a building, or an aircraft or other vehicle, without effective consent and the person:

(1) had notice that the entry was forbidden; or

(2) received notice to depart but failed to do so.

(b) For purposes of this section:

(1) "Entry" means the intrusion of the entire body.

(2) "Notice" means:

(A) oral or written communication by the owner or someone with apparent authority to act for the owner;

(B) fencing or other enclosure obviously designed to exclude intruders or to contain livestock;

Citing the neighbor for criminal trespass is just going to hurt the working relationship. There is no point in punishing him before you have given him a chance to rectify the problems. Given the number of times they had talked about replacing this fence, and his latest notice that he was proceeding with plans to do so, and the lack of any specific objection regarding the removal, he very likely felt he had given "Notice" and had permission to proceed with the work. He made a mistake not telling his neighbor when he was going to start the work. But that does not make him a criminal. Show a little humanity, help him understand the problems this has created for you his neighbor and ask for his help correcting them, behave like a neighbor.

You are both still going to be living next door to each other when this is all done.

[Biscuits]

Originally Posted by CptnRn

Citing the neighbor for criminal trespass is just going to hurt the working relationship.

I agree. I posted the statue to clarify the point that a fence does indeed serve as "notice" to the entire world that they are not permitted entry.

[AusParent]

I called APD today to get clarification on how trespassing is actually addressed. Here is what is needed to cite someone. It basically boils down to what will hold in court.

You have to have physical evidence, like a photo or video. A witness may be seen as biased in court. There has to be some form of notice of boundaries. A written warning by the police or by the property owner (with proof of delivery) is the best form. Again, it is hard to prove an oral warning in court. A fence is a softer form of notice, meaning that it only invokes trespassing in certain circumstances: evidence of criminal intent or evidence of a pattern of trespassing. Criminal intent can include someone's mere presence in your fence if it occurs at night time. A defendant can also claim in court that oral permission was granted or implied. A no-trespass sign posted on the fence is also a softer form of notice. A defendant can also claim in court that a sign wasn't present or visible.

Hope this helps.