Neighbor's Encroaching Fence and Backyard

[usafdrew]

What is the name of your state (only U.S. law)? GA

Hello everyone. I found this forum while searching for information about my plight and I think this is an excellent website.

For the introduction, I am in the military and bought my house in Middle GA in 2006. The homes on my street are all the same and very close together. Given that I don't make much money, I was exstatic to finally own a home (albeit small) for what I considered a great and affordable price. I was a bit concerned of the proximity of the homes (~10' on either side) and that on one side of my home, a fence ran straight across from the neighbor's house to mine about halfway down the house. Then, on that same side, a fence ran from the back corner of my house to the end corner of the backyard (the backyard is only about 10' long as well). In effect, this made the entire side of my house (from the fence on the side, to the end of the fence on the back corner) a part of the neighbor's backyard. I have included links to pictures of the area below. As such, I do not have access to the portion of the side of my house without asking the neighbor to enter their backyard first.

[url]http://www.layson.net/drew/house/DSC00204.jpg[/url]
[url]http://www.layson.net/drew/house/DSC00205.jpg[/url]
[url]http://www.layson.net/drew/house/DSC00206.jpg[/url]
[url]http://www.layson.net/drew/house/DSC00207.jpg[/url]
[url]http://www.layson.net/drew/house/DSC00208.jpg[/url]

As if not having access to that part of the house w/o asking isn't bad enough, these neighbors are very territorial and hostile (as well as shady and a bunch of other terms if I went into detail). I never bothered to act on this encroachment until an incident a few days ago. The neighbor had a guy pressure washing her house and then started doing it to mine. Knowing that there is a certain way you have to pressure wash vinyl siding so as not to cause water damage (not to mention that I was not asked for permission), I peeked over the fence and asked sternly, but politely as I could "what's going on here?". I was told to "stop asking stupid 'f-ing' questions" and to "get the 'f' back in my house". That blew my lid and I'm thankful I have restraint.

Basically, this neighbor considers that back half side of my house her property. I know this because she has her vines growing up my siding to where they grow into the roof sofets and never bothers to trim them (she has since taken them down for the winter). She also has her shrubs right up against my house. And now, she has that side section of my house pressure washed along with hers so it'll look pretty.

Enough is enough. I want her shrubs and fence moved back. When I bought the house, I never got a survey so I don't know where the property line is. The property line is either right down the side of my house (zero lot line) or midway between our houses. Either way, I think I have grounds for her to remove her fence because I should have access to all parts of my home. I would think if the lot line runs down the side of my home, then an easement should be in place for me to perform maintenance on that side and she would have to move the fences and shrubs back however many feet. If the property line is midway between our homes, of course I could just order her to remove the fences and shrubs from my property, right?

So far, I have researched everything I could as a matter of public record. I have the county code, subdivision covenants, plot maps, and deeds for both homes. I have talked with the city planner (who so happened to approve the maps of the subdivision in 1991). My next step is to get a survey done to find the property line. Then talk with a real estate attorney to see if I have a case in the event she won't heed my letter. Then send a registered letter (CC the attorney) giving her 15 days to remove the fence and shrubs. Does this sound like I'm on the right track? Am I missing a step?

In doing my research, I have come across the term adverse posession and I now know what it is. However, Georgia law says adverse posession can either be 7 or 20 years, but I can't differentiate between the two. The homes were built in 1994 so that's only 14 yrs, but I don't know how long the fences and shrubs have been in place for. The neighbor has lived there for 5 yrs.

Basically after all this long post (and I'm sorry for that, just very determined), could I order her to remove or move back the fence and shrubs. If I could and she doesn't comply, will my case hold up in court? Also, could she possibly claim adverse posession? Thank you in advance for responses.

[HomeGuru]

Originally Posted by usafdrew

What is the name of your state (only U.S. law)? GA

Hello everyone. I found this forum while searching for information about my plight and I think this is an excellent website.

For the introduction, I am in the military and bought my house in Middle GA in 2006. The homes on my street are all the same and very close together. Given that I don't make much money, I was exstatic to finally own a home (albeit small) for what I considered a great and affordable price. I was a bit concerned of the proximity of the homes (~10' on either side) and that on one side of my home, a fence ran straight across from the neighbor's house to mine about halfway down the house. Then, on that same side, a fence ran from the back corner of my house to the end corner of the backyard (the backyard is only about 10' long as well). In effect, this made the entire side of my house (from the fence on the side, to the end of the fence on the back corner) a part of the neighbor's backyard. I have included links to pictures of the area below. As such, I do not have access to the portion of the side of my house without asking the neighbor to enter their backyard first.

[url]http://www.layson.net/drew/house/DSC00204.jpg[/url]
[url]http://www.layson.net/drew/house/DSC00205.jpg[/url]
[url]http://www.layson.net/drew/house/DSC00206.jpg[/url]
[url]http://www.layson.net/drew/house/DSC00207.jpg[/url]
[url]http://www.layson.net/drew/house/DSC00208.jpg[/url]

As if not having access to that part of the house w/o asking isn't bad enough, these neighbors are very territorial and hostile (as well as shady and a bunch of other terms if I went into detail). I never bothered to act on this encroachment until an incident a few days ago. The neighbor had a guy pressure washing her house and then started doing it to mine. Knowing that there is a certain way you have to pressure wash vinyl siding so as not to cause water damage (not to mention that I was not asked for permission), I peeked over the fence and asked sternly, but politely as I could "what's going on here?". I was told to "stop asking stupid 'f-ing' questions" and to "get the 'f' back in my house". That blew my lid and I'm thankful I have restraint.

Basically, this neighbor considers that back half side of my house her property. I know this because she has her vines growing up my siding to where they grow into the roof sofets and never bothers to trim them (she has since taken them down for the winter). She also has her shrubs right up against my house. And now, she has that side section of my house pressure washed along with hers so it'll look pretty.

Enough is enough. I want her shrubs and fence moved back. When I bought the house, I never got a survey so I don't know where the property line is. The property line is either right down the side of my house (zero lot line) or midway between our houses. Either way, I think I have grounds for her to remove her fence because I should have access to all parts of my home. I would think if the lot line runs down the side of my home, then an easement should be in place for me to perform maintenance on that side and she would have to move the fences and shrubs back however many feet. If the property line is midway between our homes, of course I could just order her to remove the fences and shrubs from my property, right?

So far, I have researched everything I could as a matter of public record. I have the county code, subdivision covenants, plot maps, and deeds for both homes. I have talked with the city planner (who so happened to approve the maps of the subdivision in 1991). My next step is to get a survey done to find the property line. Then talk with a real estate attorney to see if I have a case in the event she won't heed my letter. Then send a registered letter (CC the attorney) giving her 15 days to remove the fence and shrubs. Does this sound like I'm on the right track? Am I missing a step?

In doing my research, I have come across the term adverse posession and I now know what it is. However, Georgia law says adverse posession can either be 7 or 20 years, but I can't differentiate between the two. The homes were built in 1994 so that's only 14 yrs, but I don't know how long the fences and shrubs have been in place for. The neighbor has lived there for 5 yrs.

Basically after all this long post (and I'm sorry for that, just very determined), could I order her to remove or move back the fence and shrubs. If I could and she doesn't comply, will my case hold up in court? Also, could she possibly claim adverse posession? Thank you in advance for responses.

**A: post back when you get a current survey and are able to tell us the facts.

[usafdrew]

I am having a surveyor come out next week and I'll get a plat map. In the meantime, can anyone shed some light as to if my neighbor could possibly claim adverse possession if the property line runs between the two homes rather than down the side of my home? Like I said, the georgia law gives either 7 or 20 years, but I can't differentiate between the two.



O.C.G.A. § 44-5-163 is the 20-year adverse possession code
O.C.G.A. § 44-5-164 is the 7-year one

Then I found this:

O.C.G.A. § 44-5-177

Possession of personal property in conformance with the requirements of Code Section 44-5-161 for a period of four years confers title to the property by prescription. No prescription arises if the property is concealed, is removed from the state, or is otherwise not subject to reclamation.

Does this mean that after only 4 years being on my property, that my neighbor could claim possession by prescription?

[JustAPal00]

The 4 year one (44-5-177)is for personal property. Land, a house, or anything attached to the house is "Real" Property. After reading the code, she would have had to lay claim in writing for the land and I think the fact that it was fenced could mean it wasn't open to the public. The house is yours, you can remove anything attached to your home and call the police if she touches it. As far as the land, I think whatever the survey says is yours will be yours.

[FarmerJ]

Before the survey is done consider going to a hardware store and buying a 6 ft long copper grounding rod , the ones that are used for grounding electrical services , Cut into say 4 equal lengths , If you are positive there would be no shallow underground utilitie lines then once you know where the lot lines are and they are marked use a hammer and drive those rods into the ground next to the stakes if wooden stakes were used , drive the copper rods down so they cannot be pulled out ! This way if the markers from the survey vanish , you have something that a metal detector can find.

[usafdrew]

Originally Posted by FarmerJ

Before the survey is done consider going to a hardware store and buying a 6 ft long copper grounding rod , the ones that are used for grounding electrical services , Cut into say 4 equal lengths , If you are positive there would be no shallow underground utilitie lines then once you know where the lot lines are and they are marked use a hammer and drive those rods into the ground next to the stakes if wooden stakes were used , drive the copper rods down so they cannot be pulled out ! This way if the markers from the survey vanish , you have something that a metal detector can find.

There are "supposed" to be rebars in place at all 4 corners of the properties so the surveyor can easily locate the ends. I guess I'll find out when the survey is done if those rebars were pulled up and if so, then yeah I will drive in grounding rods after the survey -- great idea; thanks FarmerJ. I thought for a minute there when reading your post that you suggested I just drive those rods in before the surveyors come so that I can make the property line wherever I wanted. Say, starting 1/4 of the way through her garage...lol. Oh gosh, I'm glad I can find some humor in all of this.

[VictorD]

Originally Posted by usafdrew

I am having a surveyor come out next week and I'll get a plat map. In the meantime, can anyone shed some light as to if my neighbor could possibly claim adverse possession if the property line runs between the two homes rather than down the side of my home? Like I said, the georgia law gives either 7 or 20 years, but I can't differentiate between the two.



O.C.G.A. § 44-5-163 is the 20-year adverse possession code
O.C.G.A. § 44-5-164 is the 7-year one

Then I found this:

I am not an attorney and I don't live in GA, but my next door neighbor sued me for adverse possession, so I've had to learn a lot about it.

Assuming that the survey shows that the property line goes midway between the two houses, I don't believe that your neighbor would be able to win an adverse possession case. While your neighbor has clearly been using some of your land as her own, she and the previous owners have not been using it for the required 20 years.

The 7-year rule (O.C.G.A. § 44-5-164) only applies if she has "color of title". That means that she would have to have a deed (which she did not forge) and which shows that her property includes all of the land that she is using. In other words, for O.C.G.A. § 44-5-164 to apply, there would have to be a situation where two people (you and your neighbor) both have deeds that include the same little strip of land. That could only happen through some kind of mistake or some kind of fraud. But since the subdivision was created so recently (1991), that scenario is unlikely. Since you have a copy of her deed, it should be simple to look at the property descriptions to make sure that her property ends where yours begins. Assuming that's the case, then you just need to wait for the surveyor to determine where the property line is on the site.

Looks like you will have a nasty situation to deal with. If the survey shows that the property line runs midway between the two houses, then you would certainly be justified in sending the neighbor a letter requiring her to remove the fence, shrubs, etc. If she doesn't, then you can do whatever you want to on your property, including taking down the fence and digging up whatever vegetation you don't like.

[Kiawah]

I suspect when surveyed, that the lot line will run right down between the houses. That obviously is a key and critical starting point that you need to determine. Where exactly is your property?

Do you know that she put up the fence, or perhaps it was your original homeowner. It looks like it might have been a decorative fence initially, but then had the fence slats added at a later date.

If the fence is on your property, then you own it and if you don't want it there it's on you to get rid of it or move it. I suppose if the neighbor indicates they installed it, then you give them the option of taking it down and putting it on their own property.....else, you can take it down.

You should check your local laws and/or HomeOwners association, which undoubtedly have fence rules as to where you can put it (e.g. setbacks from property lines, height, good side out, material, whether permits are required, etc.).

Heck, for all you know, there might be a fence setback which is the same setback as the house, so your original homeowner put it up where it is.

[usafdrew]

I have returned to this issue after being TDY for awhile. Peru is nice this time of year!

I have located the property pins today. The problem side of my house is built right on the property line. I guess now all I'm wondering is do I have any way of ordering the neighbor to move her shrubs and fence back a few feet so she is not right up against my home and I will have access without asking her to let me in her backyard?

I'm thinking that the only grounds I would have in ordering her to move the fence and shrubs back is in the wording of the covenants of the neighborhood. It reads:

"The structures erected or to be erected upon the lots or parcels to which these restrictions are applicable contemplate the use of a zero lot line concept..."

"...There is hereby reserved unto each lot an easement for roof overhang not to exceed twenty-four (24) inches onto each adjoining lot, which said easement for roof overhang shall be and same hereby is deemed to be applicable to any structures erected on said lots or parcels. Provided, however, in the event that an existing structure has been erected on an adjoining lot or parcel, the easement for roof overhang hereby reserved unto each lot shall be effectual only to the extent that the use thereof would not interfere with said existing structure on an adjoining lot or parcel. The owner of the property to which such easement for roof overhang is appurtenant shall also have and enjoy an easement over, upon and across such portion of the adjoining lot or parcel as is reasonably necessary to provide access for the construction, maintenance and upkeep of such roof overhang."

Here are the pics of the area again:

[url]http://www.layson.net/drew/house/DSC00204.jpg[/url]
[url]http://www.layson.net/drew/house/DSC00205.jpg[/url]
[url]http://www.layson.net/drew/house/DSC00206.jpg[/url]
[url]http://www.layson.net/drew/house/DSC00207.jpg[/url]
[url]http://www.layson.net/drew/house/DSC00208.jpg[/url]

To me, this means that her fence extends into (and her shrubs lie within) the easement. My questions are: is she allowed to build in the easement? Is she allowed to fence-off access to the easement? Are the shrubs allowed to grow right on the side of my home?

Perhaps, the argument can be made here that she must give me access into her backyard for maintenance on my home whenever I need it, but since the incident, I do not feel as though I should have to ask permission to access my home. Also, I don't want her shrubs growing up against the side of my house and I certainly don't want her pressure washing my home again!

What are my options? Thanks in advance.

[HomeGuru]

Originally Posted by usafdrew

I have located the property pins today. The problem side of my house is built right on the property line. I guess now all I'm wondering is do I have any way of ordering the neighbor to move her shrubs and fence back a few feet so she is not right up against my home and I will have access without getting into her backyard?

I'm thinking that the only grounds I would have in ordering her to move the fence and shrubs back is in the wording of the covenants of the neighborhood. It reads:

"The structures erected or to be erected upon the lots or parcels to which these restrictions are applicable contemplate the use of a zero lot line concept..."

"...There is hereby reserved unto each lot an easement for roof overhang not to exceed twenty-four (24) inches onto each adjoining lot, which said easement for roof overhang shall be and same hereby is deemed to be applicable to any structures erected on said lots or parcels. Provided, however, in the event that an existing structure has been erected on an adjoining lot or parcel, the easement for roof overhang hereby reserved unto each lot shall be effectual only to the extent that the use thereof would not interfere with said existing structure on an adjoining lot or parcel. The owner of the property to which such easement for roof overhang is appurtenant shall also have and enjoy an easement over, upon and across such portion of the adjoining lot or parcel as is reasonably necessary to provide access for the construction, maintenance and upkeep of such roof overhang."

To me, this means that her fence extends into (and her shrubs are within) the easement. My questions are: is she allowed to build in the easement? Is she allowed to fence-off access to the easement?

Perhaps, the argument can be made here that she must give me access into her backyard for maintenance on my home whenever I need it, but since the incident, I do not feel as though I should have to ask permission to access my home. Also, i don't want her shrubs growing up against the side of my house and I certainly don't want her pressure washing my home again!

What are my options? Thanks in advance.

**A: who located the pins? Do you have a current survey?

[usafdrew]

Originally Posted by HomeGuru

**A: who located the pins? Do you have a current survey?

Thanks for your quick reply. I have located the pins myself. They were about 2ft under the sod. I have no reason to believe that they were ever moved from their origin. I found all 4 pins (even some of the other neighbor's pins to verify) and they are consistent with zero lot line layout where one side of the home is built on the lot line. I am trying to avoid paying for a survey especially since it seems now that the neighbor's fence is not on my property per se.

[usafdrew]

I have also learned that the easement for roof overhang is called an appurtenant easement and I would be considered having the dominant tenement.

I have found this bit of information in wikipedia:

"Blocking access to someone who has an easement is a trespass upon the right of easement and creates a cause of action for civil suit. For example, putting up a fence across a long-used public path through private property may be a trespass and a court may order the obstacle removed. "

So what about this scenario:

The neighbor blocking access to the easement by fencing it off could be construed as my abandonment of the easement.

[Zigner]

Originally Posted by usafdrew

I have also learned that the easement for roof overhang is called an appurtenant easement and I would be considered having the dominant tenement.

I have found this bit of information in wikipedia:

"Blocking access to someone who has an easement is a trespass upon the right of easement and creates a cause of action for civil suit. For example, putting up a fence across a long-used public path through private property may be a trespass and a court may order the obstacle removed. "

So what about this scenario:

The neighbor blocking access to the easement by fencing it off could be construed as my abandonment of the easement.

Don't use Wikipedia for law reference. Research the actual law in your state.

[usafdrew]

Originally Posted by Zigner

Don't use Wikipedia for law reference. Research the actual law in your state.

Thank you for that correction. Here is from Georgia Code:

"§ 44-9-6. Loss of easement by abandonment or nonuse

An easement may be lost by abandonment or forfeited by nonuse if the abandonment or nonuse continues for a term sufficient to raise the presumption of release or abandonment."

[my_wan]

Has your or your neighbors title got covenant conditions? These are restrictions that establish the general rules and guidelines that homeowners agree to abide by. Even these the courts can strike down for being prejudiced and not affording equal opportunity, etc.

I don't know your location but the Georgia website has this Model Ordinance.
[url]http://www.dca.state.ga.us/intra_nonpub/Toolkit/ModelOrdinances/ModOrdInfl.pdf[/url]

5. Zero-lot line buildings require an access easement not less than ten feet in
width running the entire length of the side wall to be granted by the adjacent
property owner and filed as a covenant running with the titles for both
properties.

In effect this would entitle you to full access to the side of your house by way of your neighbors property. Generally your neighbor has right to grow flowers or anything else as long as they don’t obstruct your “egress”. This would mean that you can require your neighbor to remove the fence and whatever else obstructs your access to your house. Adverse possession would absolutely have no bearing whatsoever in such a zero lot line development.

Here it says:
[url]http://www.dca.state.ga.us/intra_nonpub/Toolkit/ModelOrdinances/AltZ/3_10.pdf[/url]

Said map may be amended by the local government by following procedures specified in the Zoning Procedures Law, O.C.G.A. 36-66.

So check for local amendments, otherwise it appears this would apply as a default.

My bet is that you in fact have full “egress” rights, and anything of theirs that interferes you can require them to remove it. Most certainly they have no right to the use of any part of your house for any purpose. You also most certainly have the right to relief from any damages they or their plants, water, etc. does to your house.

I would hold the fence and/or flowers hostage to the rules you can by rights impose in exchange for the concessions you need. Once the legal maneuvers start I would also buy a cheap web cam ($30) and video record on your computer any actions they take on the side of your house. People can get very nasty.