Neighbor called and said moving fence 1.5 feet

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Neighbor called and said moving fence 1.5 feet

Tyler Harvey
Tampa · Member since 2020 · 14 posts · 3 votes

Hey the neighbor on one of my properties called this mornings and said he was having a fence guy come and move the fence 1.5 feet on to my property and showed me a survey that he had done. Moving the fence will destroy my ability to get a car in the driveway at all. Is there anything I can do? Is there interpretation in surveying or if I get a second opinion are they going to tell me the same thing?

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Nathan GesnerBusiness Member
Moderator
Real Estate Broker · Cody, WY · Member since 2010 · 28k+ posts · 41k+ votes
5y

You can also check with an attorney. You may have what is referred to as an "easement by prescription" created by the open, notorious, uninterrupted, hostile, and adverse use of another's land for a period set by statute. In other words, if you park on your neighbor's front lawn for ten years and he knows and doesn't say anything about it, you basically gain a legal right to parking on his lawn and he can't tell you to stop.

If your driveway has existed for the right number of years and the neighbor knew about it and allowed it, you may have gained a right to that property that lasts forever.

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  • Wayne Brooks
    Real Estate Professional · West Palm Beach, FL · Member since 2012 · 23k+ posts · 13k+ votes
    5y

    Mistakes in surveying happen, but not often. Talk to the neighbor, see if you can convince him not to move it....if not, maybe hire your own surveyor to confirm. Do you know Why he is moving it now?

    1Reply
  • John UnderwoodPro Member
    Investor · Greer, SC · Member since 2014 · 13k+ posts · 17k+ votes
    5y

    Talk to an attorney.

    Have you used this for over 10 years? Check your state law but you may be able to claim ownership under squatter rights.

    2Reply
  • Nathan GesnerBusiness Member
    Moderator
    Real Estate Broker · Cody, WY · Member since 2010 · 28k+ posts · 41k+ votes
    5y

    You can also check with an attorney. You may have what is referred to as an "easement by prescription" created by the open, notorious, uninterrupted, hostile, and adverse use of another's land for a period set by statute. In other words, if you park on your neighbor's front lawn for ten years and he knows and doesn't say anything about it, you basically gain a legal right to parking on his lawn and he can't tell you to stop.

    If your driveway has existed for the right number of years and the neighbor knew about it and allowed it, you may have gained a right to that property that lasts forever.

    The DIY Landlord Book4.7247 Reviews
    WebsiteView Page
    8Reply
  • Mike McCarthy
    Investor · Philadelphia, PA · Member since 2016 · 2k+ posts · 1k+ votes
    5y

    @Tyler Harvey showed you a survey? As I’m on a piece of paper? The surveyor should have installed spikes or markers to show exactly where the property line is.

    First I would talk to the neighbor and see if you can come to some agreement. Second is probably to get your own survey to confirm what he says.

    Lastly, if neither of those go your way, a lawyer is your next step. There are things like adverse possession which may be applicable (though outside my knowledge) and may help.

    Other than option 1 and trying to work something out amicably, if he ends up being wrong, he’ll have to remove the fence. So it’s not something you have to get done before he installs the fence.

    Good luck!

    0Reply
  • Theresa HarrisPro Member
    Member since 2019 · 15k+ posts · 11k+ votes
    5y

    Get your own survey done.  Meantime tell him not to move the fence.  Is he moving is over 1.5 feet to the property line or is he moving it 1.5 feet on your side of the property line?

    If the property line is indeed wrong and you can't keep the fence where it is, consider not having a fence up on the front part where it will interfere with you using your driveway.

    0Reply
  • Steve Morris
    Real Estate Broker · Portland, OR · Member since 2019 · 4k+ posts · 2k+ votes
    5y

    Check the survey first.  If it's a legitimate surveyor with a current license or meets ALTA standards,

    Then I'd go to a land attorney, if the driveway has been there a while.  You might have earned an easement it sounds like open and notorious adverse possession (not a lawyer, just trying to sound like one).

    1Reply
  • Davido Davido
    Rental Property Investor · Olympia, WA · Member since 2012 · 544 posts · 311 votes
    5y

    @Tyler Harvey, In addition to gaining an easement by prescription as mentioned by @Nathan Gesner (Easements are used by multiple people) you could have exclusive rights to the 1.5' of fenced land, whether the neighbor's survey was accurate or not.  Exclusive right to the land could be yours if your fence has been there for seven years and your neighbor has NOT been planting, mowing or otherwise using your side of the fence.  Your right to continued exclusive use of your side of the fence can be established under the Florida Adverse Possession Statutes as mentioned by @Mike McCarthy.  Here is the statute.

    https://codes.findlaw.com/fl/t...   , but note that it requires reliance on your recorded Title.  Generally this statute can be applied even if your understanding of the legal description in your title was wrong, but check how the statute is applied by your courts.

    Florida Statutes Title VIII. Limitations § 95.16. Real property actions;  adverse possession under color of title

    (2) For the purpose of this section, property is deemed possessed in any of the following cases:

    (b) When it has been protected by a substantial enclosure. ...

    There is another Florida Statute which provides for Adverse Possession if you've paid taxes on another's parcel and used it. 

    http://www.leg.state.fl.us/sta...



    Nolo.com provides the following info, in part; https://www.nolo.com/legal-enc...

    Florida’s Requirements for Adverse Possession

    There is no single statute in Florida that spells out the elements that a trespasser must establish to prove adverse possession. Rather, the courts have established a variety of such factors, over many decades of making decisions in individual cases.

    Adverse possession in Florida depends on the nature of a trespasser’s possession and the length of time he or she possesses the land. A trespasser’s possession must be:

    1) hostile (against the right of the true owner and without permission)

    2) actual (exercising control over the property)

    3) exclusive (in the possession of the trespasser alone)

    4) open and notorious (using the property as the real owner would, without hiding his or her occupancy), and

    5) continuous for the statutory period (which is seven years in Florida under Fla. Stat. Ann. § 95.12).

    For example, imagine that Mike and Molly live next to one another in Orlando. There is no dividing fence, line of trees, or other obvious boundary between their yards. Mike builds a gazebo that is actually on Molly’s side of the property, covering about ten square feet of earth. Molly doesn’t say anything. Mike uses the gazebo as if it were on his own land. He does this for seven years. Under the rubric described above, Mike can probably establish that he “owns” the land on which he was encroaching. Molly could have stopped Mike by asking, over those seven years, that he remove his gazebo, or sign a rental agreement to make clear that the use was with permission, rather than hostile. But Florida courts won’t let her suddenly eject Mike after she failed to exercise her rights for so many years.

    Best Wishes

    4Reply
  • Tyler Harvey
    OP
    Tampa · Member since 2020 · 14 posts · 3 votes
    5y

    @Davido Davido thank you so much.

    0Reply
  • Daniel Graham
    Rental Property Investor · The Fox Valley Area - WI · Member since 2019 · 25 posts · 24 votes
    5y

    I am guessing there is more to this story than we are being told. Nobody hires a surveyer and moves a fence 1.5 feet on a whim. 

    6Reply
  • Clint ShelleyPro Member
    Surveyor · Dothan, AL · Member since 2014 · 425 posts · 391 votes
    5y

    @Tyler Harvey

    First, get an injunction to halt any fence removal, unless it's their fence. Whats the purpose of their new survey? Are you guys already fighting? New dog? Let's assume the boundary is correct, but what you're really concerned with is who owns the fence and what is it's nature to the boundary line? How long has it been installed? Was it their under convenience, has there been a boundary line agreement? Was it recorded? Have you talked with the surveyor? Lots of questions need to be answered. We need more info.

    Clint

    1Reply
  • Calvin Lin
    Investor · Raleigh, NC · Member since 2015 · 81 posts · 210 votes
    5y

    Want to add a contrarian opinion here: if turns out in fact his survey is correct and he has the legal right to move the fence and you then try to use some legal statue to claim possession, then how piss off do you think he will be and what kind of problem can he cause for your rental down the road?  It sounds like your drive way is partially on his property and if so I think most of us would try to correct that situation.

    2Reply
  • Joe SplitrockPro Member
    Moderator
    Rental Property Investor · Sioux Falls, SD · Member since 2015 · 9k+ posts · 18k+ votes
    5y

    Ideally work with them on a solution. Ask if you can negotiate long term land lease or easement for a reasonable amount of money. They still retain long term rights to their land, make a few dollars in the mean time and you get to keep using it as parking.

    You can't really stop them from removing a fence that is on their property. You can stop them from placing it on your property, which is what I would do. The fence company should not be installing or moving fences without a permit anyways. Tell them they do not have your consent to touch the fence or enter your property. 

    Do you have permit records for your fence being installed or did someone do it unpermitted? That could make it hard to determine who even owns the fence.

    2Reply
  • Tyler Harvey
    OP
    Tampa · Member since 2020 · 14 posts · 3 votes
    5y

    @Clint Shelley actually we’re not having any arguments. They have been great neighbors even came and talk to us about the renovation they were doing. They did not mention they would be moving the fence. There was only about 14’ between the house and the fence to begin with so getting a car down that driveway is tight. I’m more worried about the ability to park a car down there. The fence got installed this morning and they ended up over by about a foot according to my survey, but his survey shows something vastly different.

    1Reply
  • Clint ShelleyPro Member
    Surveyor · Dothan, AL · Member since 2014 · 425 posts · 391 votes
    5y

    @Tyler Harvey

    Ok. Is this a platted subdivision or metes and bounds lots? On your survey and his you should see the measured call which is what the surveyor measure today between the pins and the deed or plat call which is what the record call is. They should be pretty close but not exact. What I mean is the record call could be 123.45 ft with the measured call being 123.68 ft. That's within reason. Since you guys aren't fighting that's good. You guys should probably schedule a meeting with his surveyor to review his work and compare to yours first. You may have a situation where there could be double pins and that's throwing it off hard to tell from here. If so the surveyor should be able to explain his findings. Let me know what they say.

    Clint

    0Reply
  • Tyler Harvey
    OP
    Tampa · Member since 2020 · 14 posts · 3 votes
    5y

    @Clint Shelley thanks Clint

    0Reply
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