I know that this is a case for a lawyer (or those who play one on CC), but what would you do in this situation?
My back property line, which is a subdivision boundary, had a fence when I got here 8 years ago–the rest of the yard is not fenced. Behind the fence is a narrow, partly wooded drainage area (about 6 ft wide), from which rose a 20ft hill, and beyond the hill, an empty field.
Now the field is being developed. Surveyors came and marked their property line–inside my fence. I do not doubt their survey.
The developer never contacted me; no one left a note or came to my door when they were surveying. I have had various flags in my yard marking utilities, and I didn’t even notice that their markers said “property line” for a couple weeks. The heavy equipment came and took down most of the hill behind my yard. I wondered if they would tear down the fence, as I heard from neighbors that another developer had torn up landscaping and fences where the property lines were “off.” I don’t like surprises, so I called my POA guy (who is new and didn’t seem to know much). He contacted the developer, who called me and, said (in a polite way), “Get your fence off my property ASAP.” I asked if he could remove the fence, but he said he couldn’t touch “my” fence. Another issue is that there are trees, some quite large, resting on both sides of this fence. The developer is leaving the tree line, so it seems there is no real urgency. I got an estimate to move the fence (about 180’), which was almost 2K, or 4.5K if I want a new fence. Meanwhile, my neighbor, who is a real estate agent and an original owner here (23 years) told me that there was a fence behind my yard, marking the subdivision boundary before the houses were built here. There are heavy metal stakes which may be old property boundary markers behind my fence, and I assume that someone may have used these markers to place the fence. Could be old survey markers or posts from farm fencing. My current fence doesn’t look more than 23 years old–fence company estimated about 10-15 years. I checked with county records and there is no record of a permit for the fence.
My options are:
Move the fence to the true property line. 2K
Tear down the fence and wait for new owner to pay for their own brand new fence (could take years, and I’d have my yard open to construction, which I don’t like–though some others on my street do have open back yards. New subdivision is a bit more upscale than mine, so I’m guessing that my new neighbor will build a fence, and a nicer one than I have.)
Leave the fence and let developer deal with it. It is actually not my fence. I mistakenly believed it was my fence for 8 years, but since I now realize it was never on my property and I didn’t build it, it is not my problem.
Build new fence now–why pay 2K to move old fence which may not last?
Any opinions or other options I haven’t thought of?
I would say it is not my fence it was here when I purchased the home.
Wait for the new owner to build the fence since it seems you only had it across the back anyway.
When you purchased your home did the survey indicate the property line with no fence?
Who’s to say that it is YOUR fence. You didn’t put it up. It sounds like it could be considered “their” fence…it’s on their property.
Why is it “your fence”? You may have thought it was “your fence” because you thought it was marking your property line, but it may never have been “your fence.”
When you bought your property, was there anything written that indicated that you were (also) buying that fence? If not, how is it yours?
The fact of the matter is that: it doesn’t matter where the fence is… What matters is where a licensed surveyor says your PL is… Hire a LS, and it will save you from a possible embarrassing situation.
You need an attorney to handle this. I would want to be positive the new survey is correct. Did you not have a survey when you bought the property? Didn’t the realtor provide you with property line information? How did you know what you were purchasing?
If it were me, I would hire an attorney and have the attorney deal with the developer. But I am A-Okay with spending money on professional expertise, especially in a case like this. I think it is important because it may decrease your property value unnecessarily, if you try to negotiate it yourself.
Good luck!!
ETA: to be honest, I would have gotten my own survey as soon as those markers showed up in what I had believed to be my yard.
Might be smart for you to get your own boundary survey done to show exactly where everything is and if there are any encroachments. Check for things like utility easements on your property in the survey too…if you put a new fence up in a utility easement the utility can probably legally tear it down anytime they want to service utilities. When hurricanes hit Florida and utility lines go down the electric companies sometimes just drive over backyard fences in the utility easements to restore electric service putting electric lines back up. Might need a real estate attorney too for your situation. Too, I don’t think surveys are required in many places to pull permit for a new fence…private property matter between adjoining property owners.
Are the trees in the back valuable to you? I would photograph them extensively. If they are damaged or die from the construction process you are entitled to compensation (for the ones on your property). Even if they extend over the other property, it is your tree if the trunk is on your property.
I would get an official survey done of your property and maybe put up a cheap temporary fence of flexible webbing or something along the back property line. Let the developer deal with the other fence. OTOH, even if you didn’t build the fence it may be considered that you bought the fence when you bought the property. I don’t know.
Why risk damaging your trees by removing this fence and/or building another one? Let the developer take that risk. He might say, “I can’t touch your fence” and you might say, “I can’t touch anything that is not on my property”.
Look through you home purchase papers for a survey. If none, ask at the town register. These surveys are all registered. It must have been surveyed in the past 30 years or so? You could measure frome house to fence. I you agree with the new survey, let them deal with the abandoned fence.
I’m another one who says get your own survey done so you know if that is in fact your property line or not. An original neighbor built a cement fence/retaining wall over our property line that was there when we moved in, but we had surveyed our property and located the buried original bronze stamped survey markers that defined three corners of our lot and assumed the 4th was under or on the other side of the cement fence so know that our survey is accurate. The neighbors place has been bought and sold and every time it went up for sale i sent a note to the realtor and a copy of the survey indicating that they had an obligation to reveal that the structure was within our property line.
I would think a developer would have a very good surveyor. Ask to see his survey and see if where they put their stakes conforms to it. It it does then tell the developer “not my property and not my fence.” Let him move it.
When you purchased the property did you just assume the fence was on your property or was there some document that indicated it was? Otherwise the fence was never conveyed to you with your purchase and it is not your responsibility.
Their survey seems to be correct. After I moved here, my next door neighbor, who had an open yard, got a dog and completely fenced his back yard. I noticed then that my fence was not even with his fence. I thought it was odd, but didn’t think much of it. I can see the survey markers going in a straight line across all the properties down the street/in line with fences where there are fences. This fence is out of line. I looked up the view of the plat surveys imposed on the landscape, and this fence is not straight and is not in the boundaries. The fence company said not to waste money on a survey–that surveys might be off by fractions of an inch, but not several feet as in this case. I did not get a survey when I moved here. Why? I never even thought of it, tbh. I guess I figured that in an established subdivision there would be no problem with property lines.
The other issue is that I do not have a lot of money to spend on this now, so I would not be inclined to hire a surveyor unless I thought their line was off. I do believe their survey is correct. I don’t want to get into any legal issues with the developer–no time/$ for that. I do not care if I “lose” this part of what I thought was my yard–it is just trees/mud/rocks, not landscaped, no lawn, etc. I was ready to move the fence–before I thought about it more and realized that it probably isn’t my fence.
So, if I wanted a discount on a pretty good used fence, would I be stealing if I just took this fence from the developer’s property and moved it back within my property line?
Several people I talked to have brought up adverse possession laws, 15 years in my state. Fence company person said not to get into that–she has never seen anyone except the actual owner win those cases.
atomom I would just make sure that the developer is aware that you did not erect the fence. Then I would do absolutely nothing. If he wants to utilize the land he will have to knock it down – you can’t as it is on his property and it was not erected by you.
My only other thought is that you might have some claim to that strip of land since the fence remained on his property for so long without being contested. Some courts will find that a property owner has a “prescriptive easement” after many years of uncontested use. But if you do not care about the small strip of land I would simply do nothing after informing the developer it is not your fence.
Since it’s not your fence I wouldn’t touch it. If they take it down you might want to wait it out and see if developer or new neighbor puts up a new fence so you can save 4.5K.
Get your own survey…and don’t assume the one done by the developer is accurate. It might not be.
I was in a jury for a boundary dispute…sort of similar. The new owner of an abutting property had a survey done that encroached on the property of the plaintiff in the case. She hired her own surveyor who did NOT agree with the first one. In the meantime…wealthy developer was sure he was right.
At the end of the suit, we ruled in favor of the plaintiff…whose survey was done from the pins that had been set.
You need your own survey.
You should also look into a cease and desist in terms of any work being done on the disputed property.
Re: the fence…if the developer says it’s not in your property…then i wouldn’t touch at all.
Thanks, CC friends for all your free advice–professional or not! I just thought it was odd the way the developer didn’t contact me, and then he (the developer) spoke to me somewhat harshly. He was professional, but not nice. I felt like he was talking down to me because I am female. (I once worked for a construction company, and I know how some of these guys who work mostly/exclusively with other guys can be. That’s why I had POA guy call him first. Sorry, men. I know that is sexist, but. . .) Another neighbor told me that this development has been in the works since before I moved here (might have changed hands after the real estate crash). I found documents/plans going back to 07–and they are just now starting it. She wondered why they are “just now discovering” that this fence, which has been there all along, is on their property, and it is an emergency that I get it taken care of ASAP because the graders will only be there for a few weeks? The way the developer talked, I was so stressed out–I got an estimate to move the fence the next day! (Even the fence company person said not to rush and didn’t want me to spend a lot of money on this, tried to help me think of other options. . .)
correction–in case anyone else did the math on this–I have been here 7 years, since 08.
