Boundary Dispute

[HavingFun12]

Here's a good one. A fence was placed down an alley that lies between two homes. A suit is filed claiming the fence does not split the alley equally between the two homes. A year and 3 months after the suit is filed and still in court, the plaintiff decides to file a lis pendens against the defendants.

The trick here is, the alley belongs to the municipality and NOT the defendant. There is NO easement shown or recorded as this property belongs to the municipality. The complaint seeks to have the fence removed or moved to the center of the alley and in no way does the movement of the fence or it's removal affect the defendant's property boundaries as described in the plat or in the deed.

Was this lis pendens improperly filed in that the complaint does not seek to alter the boundaries of the defendant's titled property but rather relocate or remove the fence from municipal property of which the defendant does not own?

 

[sagito327]

A lis pendens is only filed to make interested parties aware that an action has begun.

 

[FarmerJ]

H you wrote >> The trick here is, the alley belongs to the municipality and NOT the defendant. There is NO easement shown or recorded as this property belongs to the municipality.<<< so if this belongs to the city there is no reason for it to be heard by a civil court. Instead the city would deal with it. The only time a court would be involved would be if someone was caught in the act of damaging city property.

 

[HavingFun12]

H you wrote >> The trick here is, the alley belongs to the municipality and NOT the defendant. There is NO easement shown or recorded as this property belongs to the municipality.<<< so if this belongs to the city there is no reason for it to be heard by a civil court. Instead the city would deal with it. The only time a court would be involved would be if someone was caught in the act of damaging city property.

Several motions have been made to that end. The complaint is stating the Conveyance Act as giving the plaintiff rights to use 50% of the alley although nowhere in law is 50% or any % stated. This suit involved a third party, the municipality, and a motion was made to dismiss based on failure to join all parties. That was denied as the city doesn't get involved in these cases and the judge stated the dispute is over the use of the land, so he denied that dismissal.

So, in essence, this judge is allowing this case to continue for over 2 years now while in discovery. He wouldn't kill it based on failure to join, he wouldn't kill it for the complaint being baseless, yet he continues to allow all involved to waste money in discovery.

I believe he fully intends to hear this case through trial even though he will have to create new case law in order to allow the injunction and grant with his permission a right to exclusive use of city property to the plaintiff.

So back to the original question, is the lis pendens invalid since the dispute is located on municipal property and not on the deeded property?

 

[FarmerJ]

Better question yet is why hasnt any one been all over the town council and mayors butts to make them deal with what sounds like to me taxpayer owned land? Go for broke and go to the local TV media and get them to turn up the heat on the towns govt , there is no reason I know of that a city /county/ state agency cannot go in and remove the fence be done with it. NOW if the city were going to formally abandon /vacate the alley ill assume they would have to follow a proccess. BUT until that time comes its still city land ( taxpayer land ) and they should have to treat it as such. Get the local media involved Im sure your towns political machine will enjoy the attention they are getting especially if this coming fall seats might be up for re election.

 

[HavingFun12]

The municipality already has an ordinance on the books regarding this type of issue. This is an unimproved alley, and as such they are aware that homeowners routinely build fences within the alley, thereby increasing the useable size of their yard. Their position is not to get involved on either side unless the fence causes an access problem for the utilities. This is outlined in the ordinance by stating no one may erect any permanent structure in the alley.

There's no interest on this subject with the media, and drawing political pressure into the matter may only serve to cause problems for anyone in the municipality that has a fence located in the alley. The goal is to adjudicate this one issue on the basis of law and be done with it with predjudice.

The current issue under scrutiny at the moment is whether the lis pendens was improperly obtained on deeded property when the issue is solely on municipal property.

The municipality will never vacate the alley for the private purpose. There are ordinances on the books that state it is illegal for the city to vacate city property for private purposes unless it serves the public, such as not paying for maintenance of the property any longer thereby providing a tax savings. In this case, the property is unimproved alley space and has never been maintained by anyone other then the homeowners surrounding it, so it can't be vacated under those circumstances. In general, the municipality will never vacate any land for personal use unless the municipality will benefit greatly in some fashion.

Our contention is the alley space, unimproved or not, is still for public access and can be used at any time as such by anyone. The plaintiff is claiming a right to 50% direct access to the alley, defined as their ability to mow the grass or plant plants or build their own fence up to the 50% point in the alley. It's their position that the current fence prevents them from fencing off 50% of the alley to use as their own property. Our contention is that the plaintiff does have access to the entire width of the alley by walking around the end of the fence. Access is not prohibited by the current fence to any area of the alley. In fact, both parties have a right to access the entire width of the alley as does any citizen. The current fence does not preclude that access.

To give more background, there has been a chain link fence in this alley for over 20 years. 2 years ago this fence was repaired with the posts and rails being replaced with wooden counterparts in the exact same position as the old posts and rails. In truth, the fence line has not changed in either direction for more than 20 years and still exists in the same position today with the new wooden parts. The problem is, the plaintiff feels they're going to abuse the court system to inflict their personal will upon their neighors.