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Fence Encroachment / New Home Owner

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Mucha

Junior Member
My wife and I recently bought a house a few months ago ( first time home owners) and discovered a fence encroachment on our recent survey. Encroachment is 150' long tapering from 4.5' to the actual property line over the length. We have a few, probably fairly common questions, regarding the whole situation. When first contacting the neighbor, they stated that they would move the fence to the proper boundary. Our plan is to fence in the rest of our yard and we had planned on connecting to the fence that is encroaching once it was moved to the proper location. Now the neighbor states that they don't want the fence anymore and will just remove it. This would cause us to run a whole new fence on that side of the yard, so here are some of the questions that we have:

- Do we own the section of fence that is on our property? If so, would it then be illegal for them to tear it down without our permission?
- If they are stating that they no longer want it, should there be some kind of document stating that we now own the fence?
- If we continue with moving the fence, should they be required to pay for that?
- By the neighbor saying " we don't want the fence anymore", is that a legal way of getting out of the situation financially?
- Should they be held responsible for the cost of resurveying the property line after the fix? Current survey shows fence encroachment, which we are trying to remove

Thanks in advance for any help, and my apologies if these questions have been answered many times before. I did some searching but each situation seems to be fairly unique.
 


latigo

Senior Member
My wife and I recently bought a house a few months ago ( first time home owners) and discovered a fence encroachment on our recent survey. Encroachment is 150' long tapering from 4.5' to the actual property line over the length. We have a few, probably fairly common questions, regarding the whole situation. When first contacting the neighbor, they stated that they would move the fence to the proper boundary. Our plan is to fence in the rest of our yard and we had planned on connecting to the fence that is encroaching once it was moved to the proper location. Now the neighbor states that they don't want the fence anymore and will just remove it. This would cause us to run a whole new fence on that side of the yard, so here are some of the questions that we have:

- Do we own the section of fence that is on our property? If so, would it then be illegal for them to tear it down without our permission?
- If they are stating that they no longer want it, should there be some kind of document stating that we now own the fence?
- If we continue with moving the fence, should they be required to pay for that?
- By the neighbor saying " we don't want the fence anymore", is that a legal way of getting out of the situation financially?
- Should they be held responsible for the cost of resurveying the property line after the fix? Current survey shows fence encroachment, which we are trying to remove

Thanks in advance for any help, and my apologies if these questions have been answered many times before. I did some searching but each situation seems to be fairly unique.
U. S. A. law is only spoken here!
 

Zigner

Senior Member, Non-Attorney
You want them to remove the encroachment and they sound happy to comply. Let them do so and then you can do whatever you want on your property. Frankly, you sound like you want to have your cake and eat it to.
 

LdiJ

Senior Member
My wife and I recently bought a house a few months ago ( first time home owners) and discovered a fence encroachment on our recent survey. Encroachment is 150' long tapering from 4.5' to the actual property line over the length. We have a few, probably fairly common questions, regarding the whole situation. When first contacting the neighbor, they stated that they would move the fence to the proper boundary. Our plan is to fence in the rest of our yard and we had planned on connecting to the fence that is encroaching once it was moved to the proper location. Now the neighbor states that they don't want the fence anymore and will just remove it. This would cause us to run a whole new fence on that side of the yard, so here are some of the questions that we have:

- Do we own the section of fence that is on our property? If so, would it then be illegal for them to tear it down without our permission?
- If they are stating that they no longer want it, should there be some kind of document stating that we now own the fence?
- If we continue with moving the fence, should they be required to pay for that?
- By the neighbor saying " we don't want the fence anymore", is that a legal way of getting out of the situation financially?
- Should they be held responsible for the cost of resurveying the property line after the fix? Current survey shows fence encroachment, which we are trying to remove

Thanks in advance for any help, and my apologies if these questions have been answered many times before. I did some searching but each situation seems to be fairly unique.
They are encroaching on your land. They can fix the encroachment by removing the fence. If you choose to put up a new fence, that is your business and on your dime.
 

Mucha

Junior Member
They are encroaching on your land. They can fix the encroachment by removing the fence. If you choose to put up a new fence, that is your business and on your dime.
Ok, thanks for some clarification. As of this point, do we own the fence? Do we need the neighbors permission to move it? I ask because if we decide to move the existing fence over to the proper boundary, it would mostly be labor expenses and not materials. It seems like a waste to have the neighbors remove it, only to be replaced by another fence of the same kind. To have the fence encroachment removed from our survey, we would have to have the surveyor come out again correct? If so, that would cost us additional money to correct someone else's mistake, not ours. I don't understand how that is having our cake and eating it too?
 

Zigner

Senior Member, Non-Attorney
Ok, thanks for some clarification. As of this point, do we own the fence? Do we need the neighbors permission to move it? I ask because if we decide to move the existing fence over to the proper boundary, it would mostly be labor expenses and not materials. It seems like a waste to have the neighbors remove it, only to be replaced by another fence of the same kind. To have the fence encroachment removed from our survey, we would have to have the surveyor come out again correct? If so, that would cost us additional money to correct someone else's mistake, not ours. I don't understand how that is having our cake and eating it too?
Because you want them to move it AND you want to own it. If it's theirs, they can do with it what they please.

Maybe you should talk to them and see if they are willing to let you move it...
 

Mucha

Junior Member
Because you want them to move it AND you want to own it. If it's theirs, they can do with it what they please.

Maybe you should talk to them and see if they are willing to let you move it...
So the fence still belongs to them if it resides on our property? That would help me to understand if I need their permission to move it, or if they need our permission to remove it. I guess that's where I'm confused...
 

Mucha

Junior Member
So the fence still belongs to them if it resides on our property? That would help me to understand if I need their permission to move it, or if they need our permission to remove it. I guess that's where I'm confused...
I understand what your getting at, and WE would be the ones moving it...
 

Zigner

Senior Member, Non-Attorney
So the fence still belongs to them if it resides on our property? That would help me to understand if I need their permission to move it, or if they need our permission to remove it. I guess that's where I'm confused...
You have options, but arbitrarily stating that their property belongs to you is not one of them. What if it were a car? A house?

I just don't understand why you can't simply communicate with them. If they don't want it, have them write something saying that you can do with it what you wish and that they don't wish to assert any claims to the fence that is on your property.

If we're talking a lot of money, you may wish to speak with a local real estate attorney.
 

Mucha

Junior Member
You have options, but arbitrarily stating that their property belongs to you is not one of them. What if it were a car? A house?

I just don't understand why you can't simply communicate with them. If they don't want it, have them write something saying that you can do with it what you wish and that they don't wish to assert any claims to the fence that is on your property.

If we're talking a lot of money, you may wish to speak with a local real estate attorney.

Ok, that helps, thank you. We are in the beginning stages of communication with our neighbors and are on good terms. I came on here to better educate myself before we get more involved. We considered having a document made as you mentioned but didn't know if that was common or how to go about it. The costs associated would be in the several thousand dollar range due to the length of the fence and terrain.
 

OK-LL

Member
The survey you have was probably your mortgage survey which shows encroachments, etc., on your property. Unless it was recorded at the county clerk's land records office, it was only provided to you, your lender and your title insurer for your information; in that case you would not have to get a new survey unless your mortgage company or title insurer requires it.
 

Mucha

Junior Member
The survey you have was probably your mortgage survey which shows encroachments, etc., on your property. Unless it was recorded at the county clerk's land records office, it was only provided to you, your lender and your title insurer for your information; in that case you would not have to get a new survey unless your mortgage company or title insurer requires it.
The survey is currently being recorded/submitted to the county this week, with encroachment shown.
 

Mucha

Junior Member
"You have options, but arbitrarily stating that their property belongs to you is not one of them. What if it were a car? A house? "

Just spoke to an attorney to further clear things up and the fence does belong to us as it is affixed to our property. If the neighbors were to make any alterations to the fence without our permission it would be trespassing. A letter stating to leave the fence alone until we decide to move it was recommended.
 

Zigner

Senior Member, Non-Attorney
"You have options, but arbitrarily stating that their property belongs to you is not one of them. What if it were a car? A house? "

Just spoke to an attorney to further clear things up and the fence does belong to us as it is affixed to our property. If the neighbors were to make any alterations to the fence without our permission it would be trespassing. A letter stating to leave the fence alone until we decide to move it was recommended.
I would suggest consulting with another attorney for a second opinion.
 

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