I wouldn’t touch the fence. It’s not yours and it’s not on your property. If you hire someone to work on someone else’s property, who pays for damages or injuries sustained during the job? Contractors carry insurance, but they may sue the property owner (the developers) who may turn around and sue you. Not a risk I’d take for a 15-year-old fence. If you can’t afford a fence right now, don’t get one.
I would get a lawyer and let him/her handle all communication with the developers. The developers bought a property with a fence on it, so they should have to remove it. It would probably cost them more to take you to court to try to prove you erected it on their property (to try to force you to pay for its removal) than it would cost for them to remove the fence. But I’d take pictures of it in case they remove it and try to sue you for the cost of the removal.
I don’t know…it sounds to me like the previous owner was allowing kids to walk on his property to get to school more quickly. To be honest, for liability reasons, I would not allow that. I wouldn’t want to put in a claim because a kid slipped on my property and got injured.
You know…lots of kids get to schools without taking shortcuts through neighbors’ yards.
When I was growing up, our backyard was a shortcut for kids going to school. Never had a problem, thank heavens, except when one kid with “issues” (who didnt live near us so I am not sure why he was in our back yard) decided to trash our swingset. I still remember his name, and we were in kindergarten! Actually, now that I think about it he was a big kid and I think it may have started by his swinging that pulled the poles out of the ground. He then trashed it
As a bit of legal info, adverse possession cases are rare and cost a lot because no one wants to give up property. It typically comes up in:
Development cases, particularly when someone is trying to stop development or extort money by claiming ownership of some piece that figures into the calculations. These cases get settled unless rancor takes hold. So for example, if the OP's property was necessary for development, the OP could be a stick in the mud about ownership in hopes of getting some cash or a new fence, etc.
People who hate each other. Or one crazy person gets involved and life gets weird.
Easements. This is a big category: lots of cases involve rights to pass over land, like in rural areas or even the use of driveways. Many cases involve access to beaches or ponds or routes to them, which brings up ...
Public easements. Sometimes a government authority will either sue or be sued over access. This gets strange in MA because surveys come back with old wagon ruts marked - not kidding - and that suggests a very old pattern of usage.
Interesting to me is that MA has such old land ownership records you’d think they’d be clear but they aren’t - and they historically become less clear as you move toward Cape Cod. I’ve done business in many states, including some listed as “registration” states, but haven’t run into one like MA has: there is regular land which goes through the regular registry of deeds and there is registered land which goes through the Land Court. From what I’ve seen some states have registration schemes but I’m not aware of one in which title is adjudicated and registered as it can be in MA. Registration in MA means nothing goes on the title that isn’t approved by the Land Court - no easements, nothing - and by statute there can be no adverse possession. This actually came up for me on land I own: the people next door to it had been using a fringe for many years and were going to fence it until I told them that they could, that I didn’t care because the land was registered and the fence would be on my land and I could remove it if I wanted. I think their goal was to take the land over time.
I’ve seen in rural areas where properties rely on private easements for ingress/egress and there is no public road access. It can get pretty hairy when someone along easement all of a sudden puts up a fence because he’s got a mad on at someone else ‘down the easement’.
Is easement the same as adverse possession? We have a steep bank at the boundary. It used to be gentler but someone filled the slope to level their lot. It was done long before either my neighbor or we moved in. There used to be a fence on my neighbor’s side where it’s flat. When the fence fell down, my neighbor refused to replace it but allowed me to put up a fence on her land. I am on the lower side. It wouldn’t do much good to put up a fence on my side. Is there any chance to keep the fence through easement? I am not interested in possessing the land.
Easement isn’t same thing as adverse possession. Easement you usually retain ownership of your real property but you allow others to access and use your land for agreed purposes like utilities putting lines through your yard within the easement. Adverse possession is sorta like when others use your property for so long that they can end up making claim on your land and get it because yoo pretty much gave up your interest in the land. You let people drive through your property for years and years and you could end up losing ownership.
No. The major difference is ownership. Easement allows the grantee to use the land, for a specific purpose, without owning it (e.g., Fios can come and dig up a portion of my front yard to run their cables or my neighbor can access her home through a driveway on my property). Adverse possessor takes over the land as the new owner upon winning the claim and can legally exclude the prior owner from entering the property.
Establishing title through adverse possession is time intensive and expensive. An adverse possession suit is also something the developer will likely wish to avoid - delays in construction, possible re-engineering of water, sewer and other utilities, loss of a lot or two, etc. Have you ever played poker? The point about the adverse possession claim isn’t to get the property. It’s to get what you desire from the developer (removal of old fence, installation of new fence on your property line at developer’s expense). The risk is claiming the fence and the developer may call your bluff. I think it’s worth having an attorney look at your documents and advise you of best course of action.
I agree with Austin. I would say just wait and let them do what they want with fence. Of all things you shouldn’t pay to have it taken down, even if you do end up paying to put your own up. But I would be wary that the developer may try to bill you. That’s where I would get an attorney involved proactively to write a letter to developer stating that you don’t dispute their survey (if you don’t) and that an examination of your records show that you didn’t pay for fence, therefore it is not yours and it is up to them to deal with it at their cost.
I am having a hard time picturing this. Looking out at your backyard, there is a fence running along the back. Does it end at either side, or does it just keep going forever? Is there fence along the sides of your property that connect to the fence in back? Is there any enclosed (ie, fenced in) area? Why do you even think it is “your” fence to move?
We have the opposite situation. Our backyard is entirely fenced in, but on one side the fence is about 3 feet inside our property line. We had a survey done when we bought the house. The house on that side had no fence until new owners put in a fence, identical in style to ours, and naturally connected it to ours. (I have seen houses separated by 2 fences, one foot apart and I think it looks really stupid) So now our neighbors have a fenced in yard that looks huge, because it includes some of our property!
@njres:
That isn’t uncommon, people often put their fences inside the ‘real’ property line, in part to avoid conflict with a neighbor hung up on every foot of property and so forth. It can be awkward, so person A puts his 6’ fence 3’ in from the back of his property line, and that 3’ of space becomes overgrown with all kinds of nasty stuff…neighbor B is left with a quandary, let it go and have what looks like a tangled jungle of weeds, or maintain 3 feet of property and have person A go on a tear about ‘their property’ and how B is "trespassing’ (or worse, A goes behind the fence to clean up, and B is saying “that is my property”…). Personally I think some people really need to grow up a bit, but sadly this kind of crap happens.
With the OP, I reiterate, instead of getting lawyers and worries about easements and yada yada, I would just leave the fence there and if the developer asks, tell him it isn’t your fence, you have nothing to do with it, and he is more than welcome to take it down shrug. If he sends you a bill for taking down the fence, it doesn’t mean anything, he isn’t going to pay a lawyer to take that into court, especially as it is pretty easy to prove that the fence predates your time in the house, and I doubt he will do that. As others have pointed out, taking down that fence and getting rid of it will be a blip on the radar for him, and would cost him a lot more trying to prove you should pay for it then it will cost him.
“…he isn’t going to pay a lawyer to take that into court…”
Agree. But if it a big developer with an in-house counsel… It would likely not go to court, but the OP can expect a few pieces of correspondence from the lawyer.
How about OP sends a certified letter, return receipt requested, to the developer - stating that the fence is not her property and is not on her land - and that the developer is welcome to remove it at his own expense. I would add language that the act of fence removal by the developer constitutes his acceptance of any associated costs.
Less expensive than an attorney - but with some protection.
NJrs–hard to picture without a drawing, but the fence goes straight across the back yard. We are on a cul-de-sac, so as you’re facing the back fence, the right neighbor has a completely enclosed back yard. but my back fence doesn’t join his fence–the fences are more or less parallel. Mine starts where his ends, going east/west, but there is a north/south gap because mine is a couple feet south of his.
The left neighbor’s side yard is open to mine and his back fence should join mine at a 90* angle (because we are on the circle of the cul-de-sac, our yards are odd-shaped wedges and much wider in the back than the other yards), but, instead, it joins in a straight line–which is part of the problem. Picture a capital “L”–with a much longer stem and much shorter base. Now rotate it 90* clockwise. That is what my fence is like, with the gate in the base section, which now joins my left neighbor’s post. That base piece should be taken out, and the stem piece should go straight from one neighbor’s post to the other’s post. But then I would not have any part of my fence joining school property, as the “L” base/gate now does. If I move the fence to my actual property line, any gate I put in could only open toward the south, into the developer’s property, not east, into the school property.
There have always been kids cutting through to the school here. Parents on our street have even asked my permission for their kids to use my gate, kids are respectful, never a problem. It is a high school, and I have had 1 or 2 kids in the school continuously for 7 years, and will have 1 or 2 kids there for another 8 years. The way the subdivision is laid out, it is quite a long distance to walk around streets/sidewalks. I hate to see kids drive to school when it is a couple hundred yards away, but a lot of them actually drive. From an environmental standpoint, I like to facilitate their ability to walk to school by letting them cut through.
After spending a lot of time thinking about it, I will probably go ahead and move the fence. I want the fence, and don’t want to wait an unknown amount of time for someone to put up a fence, even if they pay for it and it is a nicer one. Another issue is that my view has already been ruined with the removal of the hill. Having the same fence would preserve a little of the look of my yard, and that would make me feel a little less unhappy and a little more protected from all the changes going on back there. I hate the idea of them tearing up and throwing away “my” fence, and leaving my yard exposed (even though, technically, it is not my fence)-- the thought of that is a “violation” of sorts. I figure that getting the fence into the right spot now is the fastest/cheapest/least conflict-ridden solution, and shortest path to peace of mind for me. I will leave a pass-through to the school now, and deal with access later if someone builds on that lot. (Thank you all for your input, and I’ll let you know if/when I actually get this done!)
As someone with experience in the land business, let me say that it is not uncommon for surveys of property to overlap. In fact, a reputable surveyor will have marked your fence and indicated the property as possibly disputed.
The developer knows that if he comes in and tears down what once was your fence, and then it is later shown that he was trespassing, he can be subject to substantial. Also, I think there is a tendency, which the OP has shown, to just “defer” to these developers.
Either the land is yours or it isn’t. You should not give up so much as one inch of your ground. For a relatively low cost you can get a surveyor to come in and look at where the lines are and give you a second opinion. You can then tell the developer that the fence is the line, it has been for many years, and if he wants to claim differently you will sue him for slander of title. On the other hand, if your property should come up short, you do as others have suggested and tell the guy that it isn’t your fence and never has been.
@atomom What is the material of this fence and how old might it be?
Have you priced having it moved? It may cost more than a new fence, especially if it’s wood and some pieces can’t be salvaged. I doubt that any of the posts can be salvaged because they would be set in concrete.
I know you don’t want to pay for it, but I really think you need to consult an attorney. It may save you so much grief down the road. It has been interesting to read and explore the topic here, but you need professional and local advice. Instead of paying to move the fence, pay an attorney for advice on whether you can even do this legally.
