Neighbor Drama, Fence installed over property line.

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Neighbor Drama, Fence installed over property line.

Dewain J.
Investor · Philadelphia, PA · Member since 2016 · 87 posts · 29 votes

So I'll try to keep this as brief as possible. It’s a long story. Extra credit to anyone who finishes…

We purchased a house to live in, and it was a fixer upper. During the construction phase some materials were placed on the fence in the backyard, (which was on our property). The fence was in poor condition, and succumbed to the weight of the materials. No big deal, we didn't want the fence anymore. Turns out the fence belonged to our neighbor.

Apparently, the previous owner of the property accidentally built the fence over to far and onto the property of the previous owner of our house. They worked it out and no big deal was made of it. The current of the owner of that property just knew it was his fence and didn't know of that arrangement.

Whatever the case, we compensated him for the fence. We also discussed what to do about a new fence and potentially partnering on it. We had some early talks about it, but nothing formal, nothing in writing, (which you would certainly expect from a lawyer like our neighbor).

Next thing you know he’s already having the fence built on our property, without any permits being pulled. He even damaged brickwork while doing it. We didn’t pay him anything towards the fence because of the damage and the fact that we didn’t approve it being done, and were planning to tell him to just move it onto his property to avoid any confusion.

Fast forward, the sewage line in the yard, which is under the fence he installed on our property needs to be replaced. Waste has been backing up into both our yards. Now the fence will be compromised in order to complete the work. We have informed him that he needs to move his fence to his side and he has a problem with it and it’s turned into a big deal. Are we unreasonable for expecting him to move his unpermitted/unapproved fence to his side? It shouldn’t be on our property anyway.

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Davido Davido
Rental Property Investor · Olympia, WA · Member since 2012 · 543 posts · 311 votes
9y

@Dewain J.  fortunately for you Pennsylvania requires 21 years to adversely possess real estate (one of the longer periods in the country),

http://legalbeagle.com/6581465-pennsylvania-squatters-rights.html

though the Pennsylvania Bar Association wants to reduce the time required to adversely possess.

http://www.philadelphiabar.org/page/BoardResolution1138206252004?appNum=5

My own response would be to verify and prove the key fact -the location your property line first (before getting a lawyer).  I would also verify in person with your local permitting agency whether a fence building permit was required and what actions the agency is able to take as well as what they are likely to do if a complaint is filed.

If you are certain on where the property line is, take your information as politely but as directly and unequivocally as possible back to your neighbor along with a specific demand, a deadline, and a clear statement of what you intend to do if you and your neighbor can not come to an agreement.   For example, tell your neighbor what you understand the situation to be (Our mutual property line is between these two points and your fence is x' on our side of the line), what you are asking the neighbor to do (I'd like you to join me this weekend in moving the fence back to your property.  Offer to provide the beer and brats.), when it must be done (This must be resolved by Wednesday), and what you will do if an agreement can not be reached.  (I will proceed to file a code violation complaint regarding your fence with Code Enforcement, my Attorney (give him your Attorney's business card) will commence a trespassing civil suit against you seeking $XX,000 in damages and fees), and I will personally call the police and file a criminal trespassing complaint against you with XX law enforcement agency.  I prefer to work with you cordially.  However, your fence is on my property, here is the proof.  Let me help you move it back to your own property line.

It is not known whether it will be necessary for you to defend against a claim of adverse possession.  If you must here are some facts to consider as suggested in the legalbeagle.com link above.

Remedies

The original owner of the land has a few options to cure an adverse possession and evict the claimant, but these actions must be taken before the 21-year deadline.

  • Proof: The true owner first must prove that some or all of the adverse possession criteria have not been met. For example, the owner might show that the claimant hasn’t possessed the property for the full 21 years or hasn’t possessed it continuously.
  • Permission: The property owner might also consider giving the claimant permission to use the property and to get him to document this by signing an agreement. This establishes the claimant's knowledge of the true owner of the property and eliminates the “hostility” of the possession, knocking out two of the necessary qualifications.
  • Lawsuit: The third option is to take legal action, such as filing a trespassing lawsuit or an injunction that bans anyone from using the property. This establishes legal ownership of the property and provides a way to start the eviction process. Plaintiffs can also request a jury trial to decide ownership.

Good luck.  Let us know how this situation works out for you.

 
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  • James Enright
    Investor · Fairview Heights, IL · Member since 2008 · 189 posts · 62 votes
    9y

    Need to talk to a lawyer and possibly have it surveyed again to be sure of boundary lines.

    1Reply
  • Matthew Anderson
    Nashville, TN · Member since 2015 · 83 posts · 38 votes
    9y
    Yeah this is an issue you need to work through with a local lawyer experienced In these matters unless you can come to an agreement to your satisfaction without having to pay for an attorney.
    1Reply
  • Dewain J.
    OP
    Investor · Philadelphia, PA · Member since 2016 · 87 posts · 29 votes
    9y

    @James Enright and @Matthew Anderson


    I don't have any doubt that the fence is on my property. Doesn't seem like we are going to come to any agreement we've been going back and forth for some time. Our thought was that if someone has something on your property, you have the right to remove it. Especially since it was unapproved by us, and the proper permits weren't pulled to perform the work. 

    1Reply
  • Matthew Anderson
    Nashville, TN · Member since 2015 · 83 posts · 38 votes
    9y

     @Dewain J. while I see the logic in your position, and you very well may be correct in your assessment of your rights under the circumstances, I would still think it wise to consult with a local attorney. 

    Your understanding of the prior neighbors' agreement only complicates the situation at hand.  You and your future lawyer may need to deal with the legal principles of easements and/or covenants in order to determine your rights and risks with regard to unilaterally removing the fence. 

    You do not want to be in a lawsuit if you can help it; I can tell you that for sure.

    1Reply
  • Curtis J.
    Investor · Lovington, NM · Member since 2016 · 46 posts · 25 votes
    9y

    Get a lawyer.  look up adverse possesion.  

    You need a lawyer and a surveyor yesterday. 

    2Reply
  • Olivia C.
    Point Roberts, WA · Member since 2015 · 102 posts · 18 votes
    9y

    Curtis is right.  Adverse possession could be a big problem.  Get a lawyer.  Now.

    1Reply
  • Davido Davido
    Rental Property Investor · Olympia, WA · Member since 2012 · 543 posts · 311 votes
    9y

    @Dewain J.  fortunately for you Pennsylvania requires 21 years to adversely possess real estate (one of the longer periods in the country),

    http://legalbeagle.com/6581465-pennsylvania-squatters-rights.html

    though the Pennsylvania Bar Association wants to reduce the time required to adversely possess.

    http://www.philadelphiabar.org/page/BoardResolution1138206252004?appNum=5

    My own response would be to verify and prove the key fact -the location your property line first (before getting a lawyer).  I would also verify in person with your local permitting agency whether a fence building permit was required and what actions the agency is able to take as well as what they are likely to do if a complaint is filed.

    If you are certain on where the property line is, take your information as politely but as directly and unequivocally as possible back to your neighbor along with a specific demand, a deadline, and a clear statement of what you intend to do if you and your neighbor can not come to an agreement.   For example, tell your neighbor what you understand the situation to be (Our mutual property line is between these two points and your fence is x' on our side of the line), what you are asking the neighbor to do (I'd like you to join me this weekend in moving the fence back to your property.  Offer to provide the beer and brats.), when it must be done (This must be resolved by Wednesday), and what you will do if an agreement can not be reached.  (I will proceed to file a code violation complaint regarding your fence with Code Enforcement, my Attorney (give him your Attorney's business card) will commence a trespassing civil suit against you seeking $XX,000 in damages and fees), and I will personally call the police and file a criminal trespassing complaint against you with XX law enforcement agency.  I prefer to work with you cordially.  However, your fence is on my property, here is the proof.  Let me help you move it back to your own property line.

    It is not known whether it will be necessary for you to defend against a claim of adverse possession.  If you must here are some facts to consider as suggested in the legalbeagle.com link above.

    Remedies

    The original owner of the land has a few options to cure an adverse possession and evict the claimant, but these actions must be taken before the 21-year deadline.

    • Proof: The true owner first must prove that some or all of the adverse possession criteria have not been met. For example, the owner might show that the claimant hasn’t possessed the property for the full 21 years or hasn’t possessed it continuously.
    • Permission: The property owner might also consider giving the claimant permission to use the property and to get him to document this by signing an agreement. This establishes the claimant's knowledge of the true owner of the property and eliminates the “hostility” of the possession, knocking out two of the necessary qualifications.
    • Lawsuit: The third option is to take legal action, such as filing a trespassing lawsuit or an injunction that bans anyone from using the property. This establishes legal ownership of the property and provides a way to start the eviction process. Plaintiffs can also request a jury trial to decide ownership.

    Good luck.  Let us know how this situation works out for you.

     
    3Reply
  • James Mc Ree
    Rental Property Investor · Malvern, PA · Member since 2016 · 1k+ posts · 935 votes
    9y

    All good advice above.

    Consider engaging your local municipality and sewage authority as an independent 3rd or 4th force in this situation.  One-on-one it is you against your neighbor who is a lawyer.  You might be able to make this three-on-one, two of which are government agencies that don't care how much something costs.

    If the local municipality requires a permit for the fence, as mentioned above - check with them to see if one was pulled (wasn't), then ask the municipality to act: not you.  They may just say that it is a civil matter and you have to sue to take action, but could provide a letter supporting your position.  That letter will be gold in your lawsuit and your lawyer neighbor will know it.

    Most sewage authorities (municipal authority usually in PA) have easements for the sewer lines requiring them to be clear of obstructions.  Ask your sewage company to address your sewer issue.  They will tell you the fence must come down.  "No problem", you say.  Ask them to send you and your neighbor that requirement in writing.  Give them permission to take it down since it is on your property and copy your neighbor.  Set it up so the sewer authority is doing all of the action.

    These are 2 ideas if the friendly, neighborly approach doesn't work of course.

    2Reply
  • Steve Babiak
    Real Estate Investor · Audubon, PA · Member since 2009 · 13k+ posts · 8k+ votes
    9y

    It looks like you are in Philadelphia - since it doesn't seem like you and this neighbor will be getting along, the fence is a good idea but it needs to be placed properly. L&I in the city will crack down on work needing a permit but performed without a permit. 

    1Reply
  • Chris K.
    Attorney · Nashville, TN · Member since 2015 · 1k+ posts · 1k+ votes
    9y

    Hi @Dewain J.

    1. As other folks mentioned above, the basic underlying issue is adverse possession. Note that while the law on adverse possession is relatively simple to recite, it’s often an expensive case to litigate. Most cases end up being a battle of “he said, she said.” You will likely end up with a five-figure bill to finish the case at the trial court level. Six-figure bills are not out of the questions if you consider appeals.

    2. While @Davido Davido is correct that the PA law requires 21 years for adverse possession, the law looks at the entire history of the property. So even if you can show that this neighbor didn't own this property for 21 years, that doesn't mean you win. Your neighbor could try to show, for example, that the previous owners also had a fence at the dispute area or otherwise used the disputed area if the disputed area was theirs. It also doesn't deal with related issues (e.g. irrevocable license, laches, etc.).

    3. Note that local law doesn’t always require the owner to pull a permit to install a fence. That’s something you can check with L&I. For what it’s worth, the link below suggests that the Philly Code requires no permit for: (1) non-masonry fences that do not exceed six feet high; and (2) masonry fence walls that do not exceed two feet high. No idea if the law is current or whether there are other permits the owner needs to pull. 

    http://www.phila.gov/philacode/html/_data/title04/subcode_a_the_philadelphia_adm/SECTION_A_301_APPLICATION_FOR_.html

    4. Note that the lack of a permit doesn’t resolve the adverse-possession issue. It may not even resolve the issue of whether your neighbor can reinstall the fence since many municipalities do not require proof of ownership before issuing a permit. In my experience, municipalities and agencies try very hard to stay out of boundary disputes. My guess is that they will tell both of you to “figure it out.”

    5. The fact that your neighbor is a lawyer will likely make your life difficult for at least two reasons. First, the fact that he is a lawyer means he has means to reduce his legal bills in a way that you can’t. For example, he can decide to represent himself during the dispute. He may also hire another lawyer but participate during the costly parts of the dispute (e.g. discovery). Second, lawyers tend to dislike suing each other. This is not as obvious in bigger cities like Philadelphia, but you may discover that lawyers in town do not want to take this case because the opposing party is a lawyer. 

    Disclaimer: While I’m an attorney licensed to practice in PA, I’m not your attorney. What I wrote above does not create an attorney/client relationship between us. I wrote the above for informational purposes. Do not rely on it as legal advice. Always consult with your attorney before you rely on the above information.

    3Reply
  • Dewain J.
    OP
    Investor · Philadelphia, PA · Member since 2016 · 87 posts · 29 votes
    9y

    @Davido Davido

    Thanks for all the very thorough and detailed advice. I agree that getting a lawyer involved might be ideal, but when it comes down to it, just doesn't make fiscal sense in this scenario, because of the cost of the fence. By the time I got down doing surveys and getting lawyers involved, I could just pay to relocate his fence. His fence was $3800. 

    I don't think the adverse possession should be an issue, although it is great to be aware of that, because the fence is new. It's not even a year old and has been a point of contention since it was put in place. The previous that was there has been gone for a while and we agreed on a compensation amount to him when we took it down. 

    I'm leaning towards going the route of explaining to him again the issues at hand and allowing him to make arrangements to move it over onto his property, and if that doesn't work involving the municipalities to make the decision for us. I like that approach. 

    0Reply
  • James Mc Ree
    Rental Property Investor · Malvern, PA · Member since 2016 · 1k+ posts · 935 votes
    9y

    If you were to need to sue, you would make all the costs you mentioned (lawyer, survey, etc) part of your claim as you would not have done any of those things if not for the fence being there.

    An additional option: after obtaining the letter from your township, municipal authority, etc supporting your position; survey results and anything else you have, give your neighbor a letter stating you are going to take down the fence he built on your property against your will.  State the fence materials will likely be destroyed and you will sue him for the bill for the removal, disposal and all of your other costs.  He will need to sue you to stop you and will realize he will lose his fence in the process.  After all of that, you can still sue to recover costs but the fence will be gone.  Unfortunately, you would have to front the fence removal cost.

    1Reply
  • Scott C.
    Philadelphia, PA · Member since 2016 · 142 posts · 26 votes
    9y

    Get a lawyer.

    0Reply
  • Matthew Anderson
    Nashville, TN · Member since 2015 · 83 posts · 38 votes
    9y

    Adverse possession would be unlikely to apply here (if I'm understanding the facts correctly) due to the fact that it does not appear that the use was hostile with the previous owners - they agreed to allow the fence, and considering it sounds like this fence was only recently put up again while you owned the property.  Adverse possession usually takes many years 15-30 depending on the state.  

    1Reply
  • Paulette Midgette
    Investor · Philadelphia, PA · Member since 2014 · 344 posts · 276 votes
    9y

    @Dewain J., may I suggest something out of the box.  Try the office of your district council person.  Depending on the serious of your dispute the office may try and mediate between you and your neighbor.  If nothing else they may have some help suggestions  or resources to point you toward for affordable or free legal counsel if it comes to that.

    1Reply
  • Chris K.
    Attorney · Nashville, TN · Member since 2015 · 1k+ posts · 1k+ votes
    9y

    @Dewain J.

    Note that for adverse possession, it doesn’t matter if the fence is new or old. Essentially what matters is whether your neighbor used the disputed land as if he owned it. Putting a fence within the disputed land is one way for him to do so. But it’s hardly the only way. There are cases suggesting that even just taking care of a land (e.g. by mowing, trimming, removing snow, etc.) is enough to establish adverse possession.

    Note that if the sewer authority needs to tear down parts of the fence to service the sewer line, it will do so regardless of who owns the land where the fence is located.  

    @Matthew Anderson is correct that permission can destroy an adverse-possession claim. But your post suggests neither you nor the current neighbor had anything to do with the original “agreement” between the previous owners. Proving permission is often difficult in that scenario. Also note that even if you prove can permission and defeat the adverse-possession claim, you may still have to deal with other claims (e.g. claim for an irrevocable license).  

    @James Mc Ree: unfortunately Dewain most likely cannot recover attorney's fees in this scenario. Hence the problem of spending five figures in legal fees to deal with what amounts to a $3,800 problem. 

    1Reply
  • Account Closed
    Accountant · Philadelphia, PA · Member since 2013 · 303 posts · 210 votes
    9y

    Does the fence happen to be blocking an egress to an ally?

    1Reply
  • Dewain J.
    OP
    Investor · Philadelphia, PA · Member since 2016 · 87 posts · 29 votes
    9y

    @Account Closed

    No it doesn't, not for us anyway. Only one side of the fence is on our property. We don't actually have a fence that encloses our yard. 

    0Reply
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