Who moves fences put on neighbors prop with permission?

[xdm9mm]

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

1989 Waser bought 15 acre parcel of land containing 1 farmhouse. Waser built fencing on land for livestock. On north edge of property, an easement was recorded on the dirt road bordering property to allow southern neighbor access to irrigation pump used by both properties. In 1995 Waser subdivided land into 5 parcels. From east to west, parcel 1 and 2 were 1 acre each, Parcel 3 is 7.44 acres, which we now own contains original farmhouse and livestock facilities. Parcel 4 is furthest west and is roughly 3 acres. The 5th parcel is called "Outlot A" and is the dirt drive that runs along the entire north border of the property giving access to each parcel. The actual parcel width of Outlot A is 60 feet, but the road only takes up about 25 feet. After subdividing, Waser builds new home on parcel 4, retains ownership of "Outlot A", and sells the other 3 parcels. Waser records access easements for owners of parcels 1-4 along "outlot A"

We buy Parcel 3 in 2002 with fences existing, installed by Waser. We update and improve the fences and install landscaping along fence lines at our expense with permission from Waser. Owner of parcel 1 installs landscaping within boundaries of "Outlot A" at his expense with permission from Waser.

In 2005 Kness purchases Parcels 4 and 5 from Waser. In April 2011, Kness surveys Outlot A and decides to remove everything found within "Outlot A", starting with landscaping in parcel 1.

Kness has not yet notified us of their intentions for our fence line and landscaping found within boundaries of Outlot A, but we suspect they intend to remove it as they did with our neighbor. We are not attempting to claim ownership of land inside our fences through adverse possession, but we paid to install the fences and landscaping and installed them with permission. Who is responsible to remove the fences and landscaping and who is responsible to rebuild the fences and landscaping inside property lines?

Please cite any case law I can refer to that pertains!

 

[154NH773]

We buy Parcel 3 in 2002 with fences existing, installed by Waser

You did not buy any fences installed by Waser on Outlot A (#5).

Kness has the right to do anything on Lot 5 that he wants, providing he does not violate any rights you received in the grant of easement.

Any permissions granted by Waser do not bind Kness, unless there was some written agreement granting you rights to perpetuate those permissions (this would essentially be an easement).

You should never expend any money improving other people's property unless you have some written agreement protecting your investment. You are probably out of luck, and your money.

As to who should pay for removal of the fence; you should make a claim to Kness that the fencing belongs to you, and you want time to remove it. If you fail to remove it, Kness could remove it and leave the remains for you (on your property). If he removes the fence and doesn't provide you with the remains, despite your claim of ownership and offer to remove it, you could take him to court for the value of the fencing. Maybe you would win, or maybe not. The same might generally apply to landscaping, although that is more questionable. Ask if you can remove any ornamental shrubs and relocate them onto your property. Kness is under no obligation to restore any landscaping on Lot #5 unless the easement grant requires him to.

 

[xdm9mm]

Thanks for the fast response! The information will really help us decide how to proceed.

Any permissions granted by Waser do not bind Kness, unless there was some written agreement granting you rights to perpetuate those permissions (this would essentially be an easement).

Does it matter that Kness is my husband's mother and gave us verbal permission to keep fences on her property, included them in my husband's inheritance in her will and promised to give us first right of refusal to purchase parcel 5 (Outlot A) if she ever decided to sell...all before we had a falling out in 2009?

 

[154NH773]

included them in my husband's inheritance in her will and promised to give us first right of refusal to purchase parcel 5 (Outlot A)

She sold the property before she died, and therefore; there will be nothing to inherit.

Do you have a written right of first refusal? You should have acted on that when you learned she was selling the property in 2005, you have waited too long, and it means nothing in your current argument.

So... in short; the answer is NO.

 

[xdm9mm]

Oops, let me clarify. My mother-in-law is Kness, the one who BOUGHT the property in 2005, the same one who is trying to rip out the fencing now. She gave us verbal permission to have the fences on her property for the last 6 years but now, due to a "family dispute" is reneging on the permission.

I only bring up the will because it is written proof that she did have intention of granting us permanent access to that land if she had died, though she is still very much alive.

As I stated in the initial post, we're not trying to keep the property or leave the fences, just trying to figure out if we have to pay to remove them or if there's shared responsibility since she gave us verbal permission to have them on her property and then changed her mind.

 

[TigerD]

Oops, let me clarify. My mother-in-law is Kness, the one who BOUGHT the property in 2005, the same one who is trying to rip out the fencing now. She gave us verbal permission to have the fences on her property for the last 6 years but now, due to a "family dispute" is reneging on the permission.

Ah, so this is a family squabble in the guise of a real estate dispute. You need to decide what is more important: Winning the fight, or healing the family. Then plan the battle.

DC

 

[xdm9mm]

Winning the fight, or healing the family.

The family damage is done...everyone has paid. We are trying to sell our property and move on, so we don't care where the fences lie. Whatever makes her happy...just trying to determine if there is sufficient law to ask her to pay for half. Does anyone have case law that applies?

 

[154NH773]

She gave us verbal permission to have the fences on her property for the last 6 years but now, due to a "family dispute" is reneging on the permission.

Regardless; she has now revoked the permission, which is her right. Perhaps you have a case for asking for reimbursement for your costs to REMOVE the fence, but that is probably negligible and she could remove it as long as she gives the remains to you.

Caselaw might/could apply to a single small issue of your claim, so it is difficult to determine if some particular caselaw would apply to your exact situation. I would still say that under the circumstances you really can't expect a court to determine that she should pay half (or anything; except perhaps cost to remove).