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property line encroachment/retaining wall

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What is the name of your state?What is the name of your state?What is the name of your state? New York

Hi--I'm a newbie--looking forward to some great advice!! (PLEASE!)

Here's the story:

I've lived here for 7 years. About 6 months ago, my neighboring property was sold. Immediately had trouble with the new neighbor (she had my husband arrested for trespassing-long story). So we decided to put a fence up to preserve our sanity and close her out as much as we can. Had the village code enforcement officer come to our house to inspect a 2 ft high concrete retaining wall that is on her property that is falling over and is severely cracked and crumbling. At the time, he said it was a citable violation, but because it was along the property line, and there were no clear markers as to who's property it was, he couldn't do anything without knowing who to cite. So we paid to have a survey done and survey says that it's neighbor's wall and that it is encroaching onto our property by way of the angle at which it is falling. (the encroachment is noted on the survey). The base of the wall itself is on her property. Well, I recalled the code inspector and now he doesn't seem to want to deal with this issue, advising me to take her to court because the village won't get involved in boundary disputes. As far as I know, there isn't a boundary dispute yet. I simply would like the code enforcement guy to state whether or not there is a safety issue with the condition of the retaining wall. I have made an appointment with an attorney to deal with the encroachment issue, but would like some opinion from the forum as to what my legal rights (or responsibilities) are, whether the village can choose not to act on this question of safety (regardless of whose property it is, determining the safety of the wall is their responsibility, correct?)... it would be my neighbor's responsibility to dispute the survey, right? Bottom line is that I want to put a fence up, but the retaining wall is in the way. (and it gets in progressively worse condition every winter). If I put the fence up out of the way of the retaining wall, am I giving up my rights to my land that would be on her side of the fence? Or have I done that already by not having a survey done when the former owners were there?? What happens if the retaining wall comes down and takes out my fence (or worse, depending on what the retaining wall's structural purpose is, I guess)?? I don't want to piss the code enforcment guy off, but I would like to compel him to do his job and definitively state whether or not the retaining wall is safe or not-- am I out of line here?? We're only talking about inches of my property, but it's my property, and I do feel there is a safety issue to be dealt with..... any opinions/similar experiences would be greatly appreciated!!
 


HomeGuru

Senior Member
gr8smile1966 said:
What is the name of your state?What is the name of your state?What is the name of your state? New York

Hi--I'm a newbie--looking forward to some great advice!! (PLEASE!)

Here's the story:

I've lived here for 7 years. About 6 months ago, my neighboring property was sold. Immediately had trouble with the new neighbor (she had my husband arrested for trespassing-long story). So we decided to put a fence up to preserve our sanity and close her out as much as we can. Had the village code enforcement officer come to our house to inspect a 2 ft high concrete retaining wall that is on her property that is falling over and is severely cracked and crumbling. At the time, he said it was a citable violation, but because it was along the property line, and there were no clear markers as to who's property it was, he couldn't do anything without knowing who to cite. So we paid to have a survey done and survey says that it's neighbor's wall and that it is encroaching onto our property by way of the angle at which it is falling. (the encroachment is noted on the survey). The base of the wall itself is on her property. Well, I recalled the code inspector and now he doesn't seem to want to deal with this issue, advising me to take her to court because the village won't get involved in boundary disputes. As far as I know, there isn't a boundary dispute yet. I simply would like the code enforcement guy to state whether or not there is a safety issue with the condition of the retaining wall. I have made an appointment with an attorney to deal with the encroachment issue, but would like some opinion from the forum as to what my legal rights (or responsibilities) are, whether the village can choose not to act on this question of safety (regardless of whose property it is, determining the safety of the wall is their responsibility, correct?)... it would be my neighbor's responsibility to dispute the survey, right? Bottom line is that I want to put a fence up, but the retaining wall is in the way. (and it gets in progressively worse condition every winter). If I put the fence up out of the way of the retaining wall, am I giving up my rights to my land that would be on her side of the fence? Or have I done that already by not having a survey done when the former owners were there?? What happens if the retaining wall comes down and takes out my fence (or worse, depending on what the retaining wall's structural purpose is, I guess)?? I don't want to piss the code enforcment guy off, but I would like to compel him to do his job and definitively state whether or not the retaining wall is safe or not-- am I out of line here?? We're only talking about inches of my property, but it's my property, and I do feel there is a safety issue to be dealt with..... any opinions/similar experiences would be greatly appreciated!!

**A: have your attorney write a demand letter to the neighbor to repair the wall and resolve the encroachment. This issue really does not involve the code inspector at all.
 
Last edited:
Homeguru:
Thanks for the response-- but I don't understand why this wouldn't involve the code inspector--isn't it their job to evaluate the safety of structures? And if there is a safety issue brought up, aren't they required to address it, even if only to officially state that there is or is not a safety issue? I will be addressing the encroachment issue with the lawyer tomorrow, but I can't believe that the village can just say that it's my problem alone if there is a viable safety concern. There would be too much liability involved if god forbid something did happen and they were aware of the problem and just let it go?? I guess I don't understand why he indicated citable violations Before the survey and now is backtracking to say that there is nothing they can do (except to avoid what will probably be a long and expensive court battle). :confused:
 

HomeGuru

Senior Member
gr8smile1966 said:
Homeguru:
Thanks for the response-- but I don't understand why this wouldn't involve the code inspector--isn't it their job to evaluate the safety of structures? And if there is a safety issue brought up, aren't they required to address it, even if only to officially state that there is or is not a safety issue? I will be addressing the encroachment issue with the lawyer tomorrow, but I can't believe that the village can just say that it's my problem alone if there is a viable safety concern. There would be too much liability involved if god forbid something did happen and they were aware of the problem and just let it go?? I guess I don't understand why he indicated citable violations Before the survey and now is backtracking to say that there is nothing they can do (except to avoid what will probably be a long and expensive court battle). :confused:

**A: you are correct about the safety code issue but even if the wall was not damaged, the fact remains that this is an encroachment issue. so whether the wall was damaged or not, there would still be an encroachment.
 
OK, so I spoke to the lawyer the other day, who happens to also be the legal counsel for the village (small town, go figure), so I can't retain him. But he did say that the village needs to do their part and gave me the paragraph in the village code that pertains to "property maintenance"... after the lawyer's visit, I went down to the village clerk's office and lo and behold, there stood Mr. Code Inspector!! I introduced myself and was greeted in return with, "are you trying to do my job?" in a not very nice tone of voice. So I guess calling the guy 4-5 times because he won't return my calls pissed him off. I was expecting that. He did calm down a little bit and say that he has sent her certified notices to correct the retaining wall situation as well as a falling down shed in her back yard. She has until Sept 21 to respond.

So now I'm wondering if I have the right to know what's going on with the code enforcement issue, and what I can do to make sure that the code enforcer keeps going after her for this? He did tell me that he has other issues with her at other properties she owns and basically said good luck trying to get her to fix anything. I guess I don't understand. If there are issues, and the village has the authority to fix them, why aren't they being fixed, unless the village isn't doing their job?? Anyway, this isn't really the right forum for that issue.

I have sent the neighbor a letter requesting that she immediately commence action to remove the encroaching structure and gave her ten days to respond. I'm not anticipating any response or action from her, so any suggestions what the next step should be? Should I send her one more certified letter advising that the next letter will be from my lawyer? and then go get a lawyer? Realistically, how long can this process take? I would like to be able to put the fence up next spring.

I really would like the village to take the heat off of me by handling their end. I don't mind doing my part, but if she is made to bring the wall up to code, then the encroachment issued will be solved. Any suggestions on how I can get the village to keep moving on their end?

thanks for any advice!
 
Update/Need more advice, please!

Hello--

Well, the nasty B*tch next door is playing games with me.... she has taken down the retaining wall to ground level (with large amount of concrete still in the ground), and intends to go no further. I have had the code inspector back up here and he says that it is fine the way it is as far as village code goes. (I'll wait and see if he puts it in writing). I am going to be installing a fence probably by the end of the week. :)

Now, my problem is, the base of the wall is indeed on my property--I've strung a taut line between the surveyor's stakes, but the survey states that the encroachment is in the tilt of the wall. Who's wall is it?? The B*tch has definitely removed the parts of the wall that were tilting, but not the entire wall. There is about a two foot drop off of her driveway onto my property (which is cragged concrete now), and there is no wall there now to support her driveway.

When I put my fence up, the part of the concrete wall that is on my property will be on her side of the fence, leaving about a six inch gap between my fence and her driveway.

I want to make sure that I cover myself legally here. I do not intend to rebuild a wall that supports her property's structures (the driveway). I am concerned about the 2 foot drop that will be on her side of the fence, could I be held liable if someone were to break an ankle or something because of it? How could I protect myself from that, other than building a wall to protect her driveway?

Do I still have an encroachment issue here?? Or is the fact that she removed part of the wall down to ground level enough to remove the encroachment??

Can I at this point remove the rest of the wall, and can I be held liable if her driveway collapses during or after the removal??

Should I get a lawyer?? I have called several, but none seem too eager to deal with an issue such as this. Am I fighting a losing battle?

Thanks for any input!!
 

HomeGuru

Senior Member
gr8smile1966 said:
Hello--

Well, the nasty B*tch next door is playing games with me.... she has taken down the retaining wall to ground level (with large amount of concrete still in the ground), and intends to go no further. I have had the code inspector back up here and he says that it is fine the way it is as far as village code goes. (I'll wait and see if he puts it in writing). I am going to be installing a fence probably by the end of the week. :)

Now, my problem is, the base of the wall is indeed on my property--I've strung a taut line between the surveyor's stakes, but the survey states that the encroachment is in the tilt of the wall. Who's wall is it?? The B*tch has definitely removed the parts of the wall that were tilting, but not the entire wall. There is about a two foot drop off of her driveway onto my property (which is cragged concrete now), and there is no wall there now to support her driveway.

When I put my fence up, the part of the concrete wall that is on my property will be on her side of the fence, leaving about a six inch gap between my fence and her driveway.

I want to make sure that I cover myself legally here. I do not intend to rebuild a wall that supports her property's structures (the driveway). I am concerned about the 2 foot drop that will be on her side of the fence, could I be held liable if someone were to break an ankle or something because of it? How could I protect myself from that, other than building a wall to protect her driveway?

Do I still have an encroachment issue here?? Or is the fact that she removed part of the wall down to ground level enough to remove the encroachment??

Can I at this point remove the rest of the wall, and can I be held liable if her driveway collapses during or after the removal??

Should I get a lawyer?? I have called several, but none seem too eager to deal with an issue such as this. Am I fighting a losing battle?

Thanks for any input!!
**A: get your surveyor out and do an encroachment survey.
 
OK, I'll bite.....

What is the difference between a property survey and an encroachment survey?? And should I assume that this will cost me yet again???

Thanks......
 

HomeGuru

Senior Member
gr8smile1966 said:
OK, I'll bite.....

What is the difference between a property survey and an encroachment survey?? And should I assume that this will cost me yet again???

Thanks......

**A: ask your surveyor then report back here with the answer.
 

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