Boundary/fence problem from new construction on adjacent property

[RajunCajun]

What is the name of your state? Louisiana. A contractor is building a spec. home on the property adjacent to my lot. I'm scheduled to begin building in the fall. These homesites are narrow (48ft. wide) but long courtyard style homes in a 5 yr. old development in the city with a HOA. The builder has tresspassed on my lot, using all of the lot, for the better part of 5 months. Very uncooperative, and a nuisance to existing neighbors. The grade on the back part of my lot is messed up due to the tractors, etc. I filed police report & contacted HOA. The HOA has rules but they're not enforcing any of it. They returned my calls but offered no recourse thru the HOA saying it was between me & the builder.

Bigger problem is - the builder has constructed a large brick fence on my property without my permission. I want it off of my property. Not sure of legal steps needed? Contacted the builder several times over 3 weeks prior to the fence going up and requested that we meet about it. With the way the builder tresspassed repeatedly, I had big concerns that the fence would not be placed correctly. Made it clear that I did not want it on my property.

The HOA does not require a fence for the lots in this section of the development. There is a provision that property owners can have a common garden wall if they should choose to. I was not going to fence that side of my property & don't care if there is one or not. It just needs to be on their own property. Remember this builder is neither the owner of the current property nor the future homeowner. I have no intention of entering into a property agreement that would impact my title & complicate future maintenance issues for a fence I don't need on that side of my home.

The HOA did not have an answer for why the covenants were not enforced. Said I would have to pursue it in court with the builder. They indicated the builder was creating a common fence. The builder is a preferred builder for this development. Read between the lines, that means kickbacks to the developer, they are all in this club together. They constructed this fence over a weekend. I had gone by on a Friday afternoon and a massive trench had been dug to start the fence. I immediately contacted the builder and told them to stop until we could resolve where they were constructing it. The response they gave me that day was "it would be on my property". They were "giving me a fence".

I have contacted a survey company for a survey so any encroachments can be verified. What are my options? I plan to contact an attorney to review the covenants, survey, etc.
I contacted the Codes dept. and the fence does not have a permit & was not submitted with the original building permit. They may get around it because it's 6 ft. & under. I did find out that the certificate of occupancy can be withheld if my attorney submits documentation showing a property encroachment created by the fence. But time is getting short so I have to move fast. Once the builder sells that property wouldnt' it give me limited recourse and make problems for the new owners too??? Any suggestions?What is the name of your state?

 

[pojo2]

Get the survey and see the Atty and handle this legally. If you get the survey you could send a CRRR letter to said contractor and demand removal of the fence in 10 days or it will be removed at his/her expense. Then do it and immediately file a small claims case to recover the expenses. But I'd make darned sure of the finds before undertaking such action.

 

[Proejo]

I suggest that you not look a gift horse in the mouth. You say it's not important to you one way or another if there's a fence, just that you don't want it on your property. Well... just how far into your property is it? Is it straddling the two properties' boundary lines, but you want it moved back 6" to be totally off your lot? A 6' brick fence costs a lot to erect. If you're getting an attractive addition to your property at no cost to you then I don't understand your beef. Yeah, yeah, yeah, maybe he should have conferred with you and adhered to your wishes, but in the end there's going to be a fence there and if you're only talking about a few inches, you may as well get over it and enjoy having a nice brick fence trhat you get free and clear. I wish somebody'd come build me a free brick fence. They have my permission starting right now. Anyone?

Second, when building homes in a subdivision, it is exteremely common and highly likely that contractors will enter your lot. Unless they are damaging trees that you intend to preserve, then the incidental damage caused by their trucks and equipment will also be caused by the same kinds of trucks and equipment when you build yours. The contractor next door should check with you on your schedule and if you're a ways out, he'll probably grade and seed that area. Additionally, because of grading between the properties, it is also likely that a landscape architech laying out the properties will have recommended a graded area between the two properties for drainage. The contractor for the other property should coordinate that with you or your planned contractor. The contractor that YOU use to build your home will, at the completion of your project, grade the land properly (including where all of the trucks and equipment have entered for both properties, install a sprinkler system (probably) and then lay down sod. In the end, your worries now are much ado about nothing. Unles you were preserving your lot as a nature preserve and never going to build there, I think you should drop it. You are only going end up alienating sub-contractors who will probably be working on your house under contract to your builder, who is probably friends with the other builder. You're going to be paying interim financing while the house is constructed. It'd be in your best interest not to do anything that might slow things down, if you get my drift.

 

[pojo2]

but in the end there's going to be a fence there and if you're only talking about a few inches, you may as well get over it and enjoy having a nice brick fence trhat you get free and clear. ]/quote]

What a response! Your, the OP, are absolutely correct in getting this issue cleared up. That fence may not be a problem right now but future issues, like ZONING ordinance concerning fences might dictate it is inappropriate!

It'd be in your best interest not to do anything that might slow things down, if you get my drift.

Oh, your drift is loud and clear you haven't a single clue!

 

[RajunCajun]

Wow Proejo...you don't much about laws regarding real property. A brick fence does sound nice, but sometimes you do need "to look a gift horse in the mouth", to be sure it's not the Trojan horse that comes back to bite you in the Arse!

Sounds like you're a contractor or sub trying to defend the builder's actions. I gave as much history as I could so potential surveyors or possibly an expereinced legal professional that might read this board would have a better picture of how this occurred. I did try to prevent it. The fact is...the fence is there now.

I own the land and it is important, very important that I don't "sleep on my rights". Doing so could cause major problems down the road, with neighbors, titles, boundaries, and future liability issues. My first step is to verify the boundaries in relation to this new fence with a new survey. Then I will have my attorney review the survey and all applicable convenants, and ordinances.

I am not interested in preserving my "lot as a nature preserve". I'm reserving my interests & investment. It's very expensive real estate (cost/sq. ft.) in a highly desirable location of a planned community for mixed use purposes. There are no remaining residential lots.

Most of the posts on this board contain one example after another where a property owner looked the other way, and allowed a situation (property issues) to exist without proper agreements orlegal documentation. even after they became aware of it. And in case you didn't read the other posts... the legal issues don't disappear. They are just compounded with time and inaction.

As far as the threat that I will "end up alienating sub-contractors... who are friends with this builder"...who cares? I wouldn't want them working for me anyway if that's the way they do business. And for the record, this adjacent site to mine is a corner lot with a alley dirve behind it. They had access to their property from 3x sides which is more that enough to build the home. I would have granted temporary access to the 4th side from my property for them to properly construct theirfence inside of their property. I'm a reasonable person. I was never asked!!

I found out about the possibility of delaying the builder's CO from someone else who had been thru this is another state. Codes didn't just volunteer that detail. I had to ask.

I welcome feedback from professionals or laypersons that have other insight, knowledge or personal experience.

 

[jimmler]

Wow Proejo...you don't much about laws regarding real property. A brick fence does sound nice, but sometimes you do need "to look a gift horse in the mouth", to be sure it's not the Trojan horse that comes back to bite you in the Arse!

Sounds like you're a contractor or sub trying to defend the builder's actions. I gave as much history as I could so potential surveyors or possibly an expereinced legal professional that might read this board would have a better picture of how this occurred. I did try to prevent it. The fact is...the fence is there now.

I own the land and it is important, very important that I don't "sleep on my rights". Doing so could cause major problems down the road, with neighbors, titles, boundaries, and future liability issues. My first step is to verify the boundaries in relation to this new fence with a new survey. Then I will have my attorney review the survey and all applicable convenants, and ordinances.

I am not interested in preserving my "lot as a nature preserve". I'm reserving my interests & investment. It's very expensive real estate (cost/sq. ft.) in a highly desirable location of a planned community for mixed use purposes. There are no remaining residential lots.

Most of the posts on this board contain one example after another where a property owner looked the other way, and allowed a situation (property issues) to exist without proper agreements orlegal documentation. even after they became aware of it. And in case you didn't read the other posts... the legal issues don't disappear. They are just compounded with time and inaction.

As far as the threat that I will "end up alienating sub-contractors... who are friends with this builder"...who cares? I wouldn't want them working for me anyway if that's the way they do business. And for the record, this adjacent site to mine is a corner lot with a alley dirve behind it. They had access to their property from 3x sides which is more that enough to build the home. I would have granted temporary access to the 4th side from my property for them to properly construct theirfence inside of their property. I'm a reasonable person. I was never asked!!

I found out about the possibility of delaying the builder's CO from someone else who had been thru this is another state. Codes didn't just volunteer that detail. I had to ask.

I welcome feedback from professionals or laypersons that have other insight, knowledge or personal experience.

When you contact the surveyor, be sure to tell them you need a boundary survey and you need the fence located. Also tell them you need a drawing showing the same.
A boundary survey does not usually include any locations other than the actual boundary, and you will need a drawing to give to your lawyer to figure out your next step.

jimmler
I am not a lawyer, I have been in surveying since 1989.

 

[Proejo]

but in the end there's going to be a fence there and if you're only talking about a few inches, you may as well get over it and enjoy having a nice brick fence trhat you get free and clear. ]/quote]

What a response! Your, the OP, are absolutely correct in getting this issue cleared up. That fence may not be a problem right now but future issues, like ZONING ordinance concerning fences might dictate it is inappropriate!



Oh, your drift is loud and clear you haven't a single clue!

Wow! You really don't appreciate anybody thinking that not every perceived infraction requires legal action.

 

[nextwife]

I suggest that you not look a gift horse in the mouth. You say it's not important to you one way or another if there's a fence, just that you don't want it on your property. Well... just how far into your property is it? Is it straddling the two properties' boundary lines, but you want it moved back 6" to be totally off your lot? A 6' brick fence costs a lot to erect. If you're getting an attractive addition to your property at no cost to you then I don't understand your beef. Yeah, yeah, yeah, maybe he should have conferred with you and adhered to your wishes, but in the end there's going to be a fence there and if you're only talking about a few inches, you may as well get over it and enjoy having a nice brick fence trhat you get free and clear. I wish somebody'd come build me a free brick fence. They have my permission starting right now. Anyone?

Second, when building homes in a subdivision, it is exteremely common and highly likely that contractors will enter your lot. Unless they are damaging trees that you intend to preserve, then the incidental damage caused by their trucks and equipment will also be caused by the same kinds of trucks and equipment when you build yours. The contractor next door should check with you on your schedule and if you're a ways out, he'll probably grade and seed that area. Additionally, because of grading between the properties, it is also likely that a landscape architech laying out the properties will have recommended a graded area between the two properties for drainage. The contractor for the other property should coordinate that with you or your planned contractor. The contractor that YOU use to build your home will, at the completion of your project, grade the land properly (including where all of the trucks and equipment have entered for both properties, install a sprinkler system (probably) and then lay down sod. In the end, your worries now are much ado about nothing. Unles you were preserving your lot as a nature preserve and never going to build there, I think you should drop it. You are only going end up alienating sub-contractors who will probably be working on your house under contract to your builder, who is probably friends with the other builder. You're going to be paying interim financing while the house is constructed. It'd be in your best interest not to do anything that might slow things down, if you get my drift.

I agree with our more senior members - you don't have a clue. All sorts of future conveyance TITLE problems are possible once an encroachment like this exists. The contractor was already on notice that they appeared to be locating the fence incorrectly, and could have verified placement BEFORE construction. It is the contractors DUTY to make certain that improvements are placed where they belong. Yes, a brick wall IS expensive to move - that's why he SHOULD have done it right in the first place.

The contractor ignored the rights of the contiguous owner and basically just did what he wanted. That's his tough luck - and maybe a learning opportunity (what NOT to do!)

I doubt any subs that have to rebuild the fence will be upset - as the cost will probably need to be eaten by the contractor who directed them to build it in the wrong place. The mason will simply get another job (redoing) out of the process.

FYI- Personally, I would not want any fencing along my lot that interferred with light to my perennial beds Certainly any neighbor has a right to erect one- within code restrictions and on THEIR lot - but not everyone WANTS a big, DARK, fence blocking sunlight to their garden. In my neighborhood, only homes with pools (and that is only one out of 15) have fences on lot lines. Most communities have a permit process for lot line fences.

 

[BelizeBreeze]

Wow! You really don't appreciate anybody thinking that not every perceived infraction requires legal action.

And you don't really appreciate that this is a LEGAL forum and such drivel as you posted belongs on a teen chat line.

Put a sock in it.

 

[pojo2]

Wow! You really don't appreciate anybody thinking that not every perceived infraction requires legal action.

No I just don't appreciate an ignorant answer!