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My Neighbor hasn't fixed his dangerously decaying fence for years.

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chandlerwithers

Junior Member
What is the name of your state (only U.S. law)? NY

Hi, We have a fence that borders the sides of both mine and my neighbors house that spans from our backyards down our respective houses side alleys. The fence and brick wall base has decayed and frayed to the point that the fence is leaning into my yard. The bricks surrounding the fence posts are all scattered & missing to where the posts are leaning freely on my side of the yard. I try to push it back but the wind just blows it back to my side.

My own gate at the end of the fence is connected to my own separate post & their gate is in line with their fence and the 18" brick wall base (that is falling to pieces
) that the fence is built into.

Here's the issue: Both houses were built from the same builder 20 years ago. My neighbor had purchased their house as the builder worked on it & had say-so on certain "specifics" along the way. It seems my neighbor might of knowingly or unknowingly coerced the builder to build their own brick base for their fence on the eight inches of my side of the property and thereby giving their yard & side alley the extra space that I see they have over mine. My house's first owner didn't come around until a year after the house was built and basically just purchased what was already laid out by my neighbor's and builder's (of both houses) original plans.

The reason I know it's their original fence (and not mine) is that bases is made from the same exclusive brick that they used for their house exterior walls. Also, that same fence brick base extends around the perimeter of their house leading up to their side gate. I also know it seems to be 8" on my property as their front bricked (same brick also) landscaping border is back the eight inches towards their proper property. So to visualize,my grass line from the street goes along their front properly aligned landscaping brick border, but then goes up to the 18 " brick base which is conveniently made to be eight inches onto my property, while giving them a walkable space on the side of their house to it's fullest surveyed property extent while having the luxury of maintaining their same brick border (again, used on their house exterior) and a good looking fence that was put up when they had the house built to have the nice side facing them.

Not a big deal until now that the expensive brick wall base started cracking and falling apart to the point the fence is leaning into my yard with constant brick debris all over as it continues to fall apart. Also, there's a danger for my kids that use their tricycles in the back yard as the wind blows on this vicariously swinging 7 ft chain fence with the fence post bases, brick, and mortar debris all exposed and dangling over on my side of the yard thereby taking even more of my property up then the original 8".

To top that, as we live in an exclusive neighborhood, my neighbors promptly fixed their decaying side gate (which faces the street) with an approximate $2000-3000 designer hand made wrought iron gate. But they have left the decaying side gate for years as it falls apart. For the past two years this eyesore & dangerous gate has leaned onto my property & has been the gorilla in the room yet we all have been politely just waving at each other as we get into our cars.

After watching them make repairs on all other parts of their house to keep it looking it's high level immaculate way yet ignoring the eyesore that only I can see, I realized this fence thing must be a waiting game for them as they must be looking for me to make the first move to offer in splitting costs.

One reason I haven't offered is the fact that this fence seemed to be knowingly encroaching on my property when they built it yet made to look like their property due to it bordering their house. Letting them have full use of their property to it's ends. An even BIGGER reason that it's a hard pill to swallow on helping split the cost is that ten years ago (about a year after I moved in) when they were upgrading their backyard to all pavers with landscaped borders, they, had a little accident with the small Bobcat Bulldozer they were using to dig out their earth for landscaping. They accidentally bumped into the fence's brick base that borders our property, thereby denting and damaging the fence. This knocked about 2 bricks out that fell on my side right under the post and started the crack that turned into today's eyesore. The neighbor (who's also a contractor) admitted to it back then, politely apologized for the eyesore I had of two bricks missing and said he'd fix it shortly. That $200, one day, brick patch and pointing job with bricks he possessed was never done. Now, ten years later, we have this 60ft span, $4000+ mess.

I tried politely talking to them recently about it but they politely told me they will get to it "sometime" this year which really means not really.

I live in NY. Any advice?
 


154NH773

Senior Member
The first thing you have to do is determine whether the fence is really on your property. Get a survey!

If the fence is on your side, ask them to move it, or you will have it removed. If it's on their side, put them on notice that you view it as a danger to you and your children, and they must not allow it to lean over your property line.
 

natetrain

Junior Member
I dont know why 154 says to just simply get a survey. They are expensive. I know here they cost around $850 and usually you already have a copy.
Your local county office should have public records on file. I found out my county has a library of public records that you can go look up for free. You should be able to pull up a copy of the neighbor plat and find the survey that was most recently done. I know in my state it is required to have a survey done anytime a house is built or bought. I know laws very by state though so I would make a call and find out if you can do that in NY where you are.
If you have your survey map check it out to be certain, but it does sound like you already know its 8 inches on your property from what I read. Personally if I were in your position I would give the neighbors a copy of your survey showing that the fence is on your property and tell them to fix it or take it out.
That or I'd just call code compliance which is very strict where I live. They'd tell them to fix it. Good luck at whatever you do though. I know all about neighbors and fences and when borders and property lines come into play its never an easy thing to deal with.
 

OHRoadwarrior

Senior Member
As it is knowingly encroaching on your property, it is also your fence. You are also legally responsible for its repair then. If you cannot work out a reasonable settlement regarding the repair, you need to have a survey to determine its legal status in a manner where the court can make an informed decision.
 

HomeGuru

Senior Member
What is the name of your state (only U.S. law)? NY

Hi, We have a fence that borders the sides of both mine and my neighbors house that spans from our backyards down our respective houses side alleys. The fence and brick wall base has decayed and frayed to the point that the fence is leaning into my yard. The bricks surrounding the fence posts are all scattered & missing to where the posts are leaning freely on my side of the yard. I try to push it back but the wind just blows it back to my side.

My own gate at the end of the fence is connected to my own separate post & their gate is in line with their fence and the 18" brick wall base (that is falling to pieces
) that the fence is built into.

Here's the issue: Both houses were built from the same builder 20 years ago. My neighbor had purchased their house as the builder worked on it & had say-so on certain "specifics" along the way. It seems my neighbor might of knowingly or unknowingly coerced the builder to build their own brick base for their fence on the eight inches of my side of the property and thereby giving their yard & side alley the extra space that I see they have over mine. My house's first owner didn't come around until a year after the house was built and basically just purchased what was already laid out by my neighbor's and builder's (of both houses) original plans.

The reason I know it's their original fence (and not mine) is that bases is made from the same exclusive brick that they used for their house exterior walls. Also, that same fence brick base extends around the perimeter of their house leading up to their side gate. I also know it seems to be 8" on my property as their front bricked (same brick also) landscaping border is back the eight inches towards their proper property. So to visualize,my grass line from the street goes along their front properly aligned landscaping brick border, but then goes up to the 18 " brick base which is conveniently made to be eight inches onto my property, while giving them a walkable space on the side of their house to it's fullest surveyed property extent while having the luxury of maintaining their same brick border (again, used on their house exterior) and a good looking fence that was put up when they had the house built to have the nice side facing them.

Not a big deal until now that the expensive brick wall base started cracking and falling apart to the point the fence is leaning into my yard with constant brick debris all over as it continues to fall apart. Also, there's a danger for my kids that use their tricycles in the back yard as the wind blows on this vicariously swinging 7 ft chain fence with the fence post bases, brick, and mortar debris all exposed and dangling over on my side of the yard thereby taking even more of my property up then the original 8".

To top that, as we live in an exclusive neighborhood, my neighbors promptly fixed their decaying side gate (which faces the street) with an approximate $2000-3000 designer hand made wrought iron gate. But they have left the decaying side gate for years as it falls apart. For the past two years this eyesore & dangerous gate has leaned onto my property & has been the gorilla in the room yet we all have been politely just waving at each other as we get into our cars.

After watching them make repairs on all other parts of their house to keep it looking it's high level immaculate way yet ignoring the eyesore that only I can see, I realized this fence thing must be a waiting game for them as they must be looking for me to make the first move to offer in splitting costs.

One reason I haven't offered is the fact that this fence seemed to be knowingly encroaching on my property when they built it yet made to look like their property due to it bordering their house. Letting them have full use of their property to it's ends. An even BIGGER reason that it's a hard pill to swallow on helping split the cost is that ten years ago (about a year after I moved in) when they were upgrading their backyard to all pavers with landscaped borders, they, had a little accident with the small Bobcat Bulldozer they were using to dig out their earth for landscaping. They accidentally bumped into the fence's brick base that borders our property, thereby denting and damaging the fence. This knocked about 2 bricks out that fell on my side right under the post and started the crack that turned into today's eyesore. The neighbor (who's also a contractor) admitted to it back then, politely apologized for the eyesore I had of two bricks missing and said he'd fix it shortly. That $200, one day, brick patch and pointing job with bricks he possessed was never done. Now, ten years later, we have this 60ft span, $4000+ mess.

I tried politely talking to them recently about it but they politely told me they will get to it "sometime" this year which really means not really.

I live in NY. Any advice?

**A: 10 years is too long. Either wait it out or take legal action and force the issue. You will have the opportunity to be dealing with the encroachment issue at the same time.
 

154NH773

Senior Member
I dont know why 154 says to just simply get a survey.
Because the OP didn't say that he had a survey, and as OHRoadwarrior said, "
you need to have a survey to determine its legal status in a manner where the court can make an informed decision.
All the OP has at this time is speculation. It may be correct, but I would not proceed until he knows for sure.
 

latigo

Senior Member
The first thing you have to do is determine whether the fence is really on your property. Get a survey!

If the fence is on your side, ask them to move it, or you will have it removed. If it's on their side, put them on notice that you view it as a danger to you and your children, and they must not allow it to lean over your property line.
Hold the phone! Let's don't get into a rush and throw money away!

I don’t know where you studied law or if you ever have. Nevertheless your response indicates your ignorance of the doctrine of mutual acquiescence (In New York referred to as "a practical location"). Not to mention the principles of adverse possession.

Survey or no survey, true with respect to the deed descriptions or not true to the deeds, that 20 year old fence represents the division line separating the two adjoining parcels of property! Period! Why?

Because it is settled law in the state of New York (as most elsewhere) that

“A practical location of a boundary line and an acquiescence therein for more than the statutory period (ten years) is conclusive of the location of such boundary line, although such line may not in fact be the true line according to the calls of the deeds of the adjoining owners.”

The above from McMahon vs. Thornton, a 2010 decision by The New York Supreme Court, Appellate Division, Third Judicial Department Case No 506742, which cites Hazen vs. Hazen (NY) 26 AD3rd 696; Fisher v MacVean, (NY) 25 AD2d 575, 575 [1966]

The New York Supreme court also noted in McMahon vs. Thornton that the doctrine of a practical location or mutual acquiescence:

“Requires a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that it is "definitely and equally known, understood and settled." (Citing: Robert v Shaul, 62 AD3d at 1128)

In spite of its disrepair there is nothing to indicate that its permanent presence for those 20-years is not easily discernable and thus supplies New York's necessary “clear demarcation”.

Moreover the fact that it has been mutually recognized as the demarcation line for the past two decades seem irrefutable.

Thus it would be a wasted expenditure to have the line as called for by the respective deeds established by survey.

Now, if you want to talk about principles of adverse possession as preventing the OP from claiming encroachment upon his deeded property and demanding restoration, we can do that as well.
 

154NH773

Senior Member
I don’t know where you studied law or if you ever have. Nevertheless your response indicates your ignorance of the doctrine of mutual acquiescence (In New York referred to as "a practical location"). Not to mention the principles of adverse possession.
I know that none of these things comes without a court decision favoring one or the other of these two neighbors. I also know that courts do not always decide cases based on settled law. The only way either party gets this property is by convincing a court that they should get it. I stand by my suggestion to first get a survey. I would then try and work it out with the neighbor without going to court.

Moreover the fact that it has been mutually recognized as the demarcation line for the past two decades seem irrefutable.
The fact that the neighbor damaged the fence ten years ago, and the OP shared in the cost of repair, might call into question who owned the fence and who claimed the property it sits on. This is not an open and shut situation, and will be very costly for all involved if they begin a court fight. Despite the quoted caselaw, the proof of "mutual acquiescence" in this example is not clear, and a good lawyer might get a decision on either side of this argument.
 
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Terminus

Member
To think I am going to suggest skipping a survey

Well probably not because this may go to court if you push things and you may need the exhibit. What I would think you have from the description is what is commonly referred to as a "party wall"...in your case a fence. As you stated the fence has an 18' base and extends 8" into your property. It would safe to then believe that the fence extends 8" on the other side.....leaving 2" in the middle which is the same size as a standard chain link fence post. OF course without a survey where the boundary interacts with the wall is unknown.

In my experiences wall (fences) like this usually are determined to be owned by both parties with cost of maintenance divided equally between both parties. I feel if you had a survey completed you would probably find that the fence is within an inch or to of the boundary and does represents it's relative location. As for the extra room the neighbor has...it very well could be his house is built a few feet farther from the boundary than yours.

As the other poster mention, there is laws pertaining to mutual acquiescence....there is also laws about misrepresentation of the facts. In that I mean if your neighbor knowingly coherced the builder to build the fence over the line a good lawyer would press for estoppel as the neighbor was knowingly misrepresenting facts.

In the end though...there is a lot of hearsay in this without solid evidence. Defending your position would probably be A LOT more expensive than just getting the fence fixed and protecting your children from injury.

And if you have a survey you might find the fence is on your property completely....or the neighbors.....so you do need a survey...specifically focusing on the boundary with the fence (which probably won't be shown on records in the courthouse, but it might) so you know and aren't assuming based on building materials (which very well might have been a batch order for the builder and he used the extra to build a wall instead of them moving back to his shop).
 

latigo

Senior Member
. . . . As the other poster mention, there is laws pertaining to mutual acquiescence....there is also laws about misrepresentation of the facts. In that I mean if your neighbor knowingly coherced (sic) the builder to build the fence over the line a good lawyer would press for estoppel as the neighbor was knowingly misrepresenting facts.. . .
Well, how indulgent of you to concede the existence of the ancient and universal law of “mutual acquiescence”. Its probably been around for ten or so centuries!

However, and if you will pardon me for saying so, your equitable estoppel theory isn't going to get off of the ground.

If you are convinced otherwise, then please favor us with case citations - New York or elsewhere – where a court has refused to apply the principle of “mutual acquiescence” solely because of a showing that one of the adjoining property owners or their predecessors in title intentionally and deceitfully caused a boundary fence to encroach upon the adjoining property?

Do you think your fancied theory of “estoppel” would likewise prevent such a “dishonest” neighbor from asserting title to the disputed ground under New York’s laws of adverse possession?

It seems that this is all a product of your fedora and confusion and misuse of legalese. Which is just fine, except that you might have seen fit to so inform the OP.

Hopefully, he hasn’t contracted for a survey. At least not solely for the purpose of locating the subject line as called for by the respective deeds.
 

154NH773

Senior Member
Hopefully, he hasn’t contracted for a survey. At least not solely for the purpose of locating the subject line as called for by the respective deeds.
I respectfully disagree. Without a survey and marked locations on the ground, the OP has no idea where the line is, or if the fence is actually on his property or the neighbor's. That fact is necessary to begin any meaningful discussion with the neighbor.

Colors of brick are not legal descriptions of a boundary, neither is speculation or unsubstantiated opinion.

Get a survey first.
 

154NH773

Senior Member
As to "the doctrine of mutual acquiescence"; McMahon vs. Thornton states:

Plaintiff's reliance, on appeal, on the theory of "boundary line by acquiescence," better known as the doctrine of practical location (see Robert v Shaul, 62 AD3d 1127, 1127-1128 [2009]), is equally unavailing. It is settled law that "`[a] practical location of a boundary line and an acquiescence therein for more than the statutory period is conclusive of the location of such boundary ... although such line may not in fact be the true line according to the calls of the deeds of the adjoining owners'" (Hazen v Hazen, 26 AD3d 696, 697-698 [2006], quoting Fisher v MacVean, 25 AD2d 575 [1966]). However, application of the doctrine requires a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that it is "definitely and equally known, understood and settled" (Robert v Shaul, 62 AD3d at 1128 [citations omitted]). Here, defendants submitted proof that former owners of their property and neighbors always assumed the trees were on defendants' property, and plaintiff has failed to allege facts that would support that the trees in question were mutually understood to reflect the boundary line and that such an understanding persisted for more than 10 years (see id. at 1128; Riggs v Benning, 290 AD2d 716, 718 [2002]; cf. Hazen v Hazen, 26 AD2d at 697).

In the current forum question, the OP has not stated that either he, or the neighbor, had "mutually understood" where the property line was, or whose property the fence was on. Neither has the OP stated that he and the neighbor had come to an acquiescence on the property line that was "definitely and equally known, understood and settled". On the contrary, the OP has always believed the fence was on his property.
 

154NH773

Senior Member
In: NEAL RIGGS et al., v. WILLIAM L. BENNING, it states:

the testimony failed, in our view, to establish that the border was sufficiently known, understood and settled among the parties and their predecessors-in-interest to have been established by practical location (cf., Fisher v MacVean, 25 AD2d 575). With the success of such theory premised upon a "long standing acquiescence in the * * * boundary lines as the dividing boundary between the two [properties] * * * notwithstanding any survey determination" (Konchar v Leichtman, 35 AD2d 890, 890), we agree that the deeds and the confirmatory survey should control (see, Lewis v Berleue, 48 AD2d 716).
Therefore; if the line is not known or settled, then a survey is the determining factor.

However; a warning to Chandlerwithers; sharing in the repair of the fence could be construed as acquiescence that the fence lies on the property line (Hazen v. Hazen).
 
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Terminus

Member
Partition Fences

Thank you for pointing out that the doctrine of mutual acquiescence was rejected in the case cited...I also thank Latigo for reminding me of the importance of this doctrine and how it has to be taken into account when making boundary opinions. I will add there is an excellent reference to the different doctrines we have been discussing in BAHR vs. IMUS No. 20090646.- Utah Supreme Court.

As for the OP, beyond the doctrine's we have been discussing there is also;

N.Y. ADC. LAW � 28-305.1.1 : NY Code - Section 28-305.1.1: Structures located on the lot line of adjacent properties and partially on both properties

"The owners of adjacent properties shall be responsible jointly for the proper maintenance and repair of
retaining walls, partition fences and other site structures, or portions
thereof, that are located along the common lot line and on both their
properties; and each such owner shall be responsible for one-half of the
costs of maintaining and repairing such fences, retaining walls and
other site structures, or such portions thereof. Where an owner elects
to remove temporarily a retaining wall or partition fence that is
required to support a grade differential between the two properties, or
for any other reason is required by this code, such owner shall protect
the adjacent property, shall not impair its safe use, and shall replace
the retaining wall or partition fence at his or her own cost."
 

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