Is this encroachment? (Austin: HOA, attorney, house)

[HungryATXn]

A little over a year ago my wife and I moved into our Austin neighborhood looking forward to owning our first home.

Long story short my neighbors welcomed us by tearing down a section of our fence to 'replace it due to its sad condition' this they did after cursing at us about how it is their right to tear down the fence whenever they wanted. They replaced this section but reversed the side that faced their house so they now had the 'flat' side even though the rest of the fence faced the other way. Had some family issues come up and ignored this for many months until they added 4-5 feet of plywood to the fence, this began my search into my rights on this matter.

I have discovered according to the measurements on our survey the fence is actually over 6 inches on my side of the property line and the property lines actually showed the fence post on my lot. They have since added pickets all along their side making a doubled up fence and a great place for rodents to live, I have since captured/killed nearly a dozen rats in my yard.

What can I do? Is this encroachment?

[Komeht]

Originally Posted by HungryATXn

A little over a year ago my wife and I moved into our Austin neighborhood looking forward to owning our first home.

Long story short my neighbors welcomed us by tearing down a section of our fence to 'replace it due to its sad condition' this they did after cursing at us about how it is their right to tear down the fence whenever they wanted. They replaced this section but reversed the side that faced their house so they now had the 'flat' side even though the rest of the fence faced the other way. Had some family issues come up and ignored this for many months until they added 4-5 feet of plywood to the fence, this began my search into my rights on this matter.

I have discovered according to the measurements on our survey the fence is actually over 6 inches on my side of the property line and the property lines actually showed the fence post on my lot. They have since added pickets all along their side making a doubled up fence and a great place for rodents to live, I have since captured/killed nearly a dozen rats in my yard.

What can I do? Is this encroachment?

Yup. Sounds like it anyway if your survey is accurate. You would need a surveyor to confirm. I would make the neighbor take the fence down if it's on your property as this can cause title issues and even adverse possession is enough time goes by.

If neighbor were friendly you might be able to work out a shared boundary fence, but doesn't seem likely. He should build his fence on his propert. Also, where was the fence that was removed located?

[CptnRn]

Yes, if the fence is on your property you need demand its removal in order to protect your property rights. If you allow it to remain for too long a time period (years) you could loose the property rights to that part of your property through adverse possession. In addition the City of Austin does not allow any solid wood fence to be built without the neighbors approval and even then it can't be more then 8' high.

So it sounds like they tore down a fence that was on your property without your permission.

They built a new fence on your property without your permission.

They violated the City ordinance in regard to its height.

Sounds like they are wrong on 3 major counts.

You can call 311 and to report the violations and they will come out and ticket the offending party.

Here is the code on building fences http://www.amlegal.com/nxt/gateway.dll/Texas/austin/title25landdevelopment/chapter25-12technicalcodes?f=templates$fn=default.htm$3.0$vi d=amlegal:austin_tx$anc=JD_25-12-243

R105.2 Work exempt from permit. Permits shall not be required for the following. Exemption from the permit requirements of this code shall not be deemed to grant authorization for any work to be done in any manner in violation of the provisions of this code or any other laws or ordinances of this jurisdiction.

Building:
1. One-story detached accessory structures, provided the floor area does not exceed 200 square feet (18.58 m2).
2. Fences not over 6 feet (1829 mm) high.

I know this because I did force a neighbor who put up an 8' high fence along my rear property line to remove it. There was already a 6' high solid wood fence in good condition there on my property, which is still there.

[atxcio]

Do you have a HOA in your neighborhood? Are you in the city limits?

Unfortunately, fence issues like this are pretty common. When everything goes right, usually the neighbors will split the cost of repairing/replacing a shared fence. And it will always be on one person's property or the other.

It sounds like this fence was always on your side of the property line, if the flat face was facing your yard. I'm guessing the neighbor was upset that the condition of the old fence was so bad, and he probably asked you to fix it? Maybe he had been bugging the previous owner for awhile, and just got sick of it. Or maybe you just have an ******* for a neighbor, happens to all of us. Anyway, in the end he put a fence in your yard, but I believe if it's on your property, it's yours. You can probably remove it or flip it or whatever... but if it's better than what was there before... maybe just address the other issues.

I'm not sure about the plywood -- did he put it on top to raise the fence? If so, that may be a violation of height restrictions with the city or HOA. The rats? That's a tough one, cause they can come from tree limbs and brush piles, etc. Not sure that any enforcement possibility exists for a neighbor who is creating rat-friendly environs. Get a good pest control company to do an exclusion on your home, it's a good idea anyway. Otherwise you'll eventually have critters in your attic, this is Texas after all.

[JERiv]

I'd get a surveyor to confirm your suspicions about the property line.

Once certain, if the fence is indeed in your property, I'd check if it's now considered yours or not. I'm assuming the surveyor would know the answer to this one?

That would be good to know, because if it's technically your fence it could be that you are in violation due to the height restriction.

Once you have your ducks in a row, inform your neighbor of what you'll be doing. Be it to tear it down and put up a new one on property border, modify it, take down the plywood, whatever you'd like to do.

I'm sure they'll complain about it, but it sounds like they were *******s to begin with, so I wouldn't worry too much about it. I doubt you'll be watching a game & sharing some beers anytime in the next century. Plus if you did your prep properly, you'll have the law on your side. And you don't really have much choice here, unless you're willing to lose some of your property to an *******.

[CarnivalGal]

If it is truly on your property, then it is your fence and they were in violation by removing the old one. Not only would they be obligated to remove it, they would probably be obligated to compensate you for the cost of building a new fence that was like the old one.

May be worth getting an attorney involved, especially if your neighbor is a jackass, which it sounds like he is. I don't envy your situation.

So, so, so glad we have wonderful neighbors.

[OpenD]

I'll add that you should do something to resolve this sooner rather than later. The longer you let this go, the more likely your neighbor can successfully claim ownership of the "6 inches" under the principal of "adverse possession."

A friend of mine went through this with a neighbor who asked if he could extend his vegetable garden over the property line, on the side of the house which my friend was not using. My friend said "Sure, why not?" Years later he decided to erect a fence down the property line, and was opposed in court by the neighbor, who claimed the property as his own now, under the principal of adverse possession, since he had been "working it," and my friend had not objected.

It cost many thousands in legal fees to dispose of this idiots' claim, so he could build the fence, on his own property.

Deal with it now.