Lawyer's letter... But the "misplaced" fence isn't mine?

[GreenerGrass]

State: NY Received a letter from a lawyer today: You are being presented with a document for signature because due to your fence misplacement (it is about 4.0 feet in on my clients property) my client does not have access to a portion of their property and there is a possibility that my client is "out of possession".
Etc. It includes a survey map and and affidavit they want me to sign that I will not make a claim on the slice of property in question. The motivation for this letter is they're trying to sell the property and they need the agreement to be signed in order to close. TGIF.

Of course, I can get my own survey done and see if this is true, and decide on a response based on the survey results...

But about that fence... or fences. When I purchased my home in 2002 I had a chain link fence installed that encloses my back yard. It was my understanding at the time that the Fence Company installed the fence in accordance with our town's code, which requires non-mutual fences be erected with a 6 inch setback from the property line. (By the way, they're still in business, all glowing reviews.) So *my* fence has been there for well over 10 years.

My next door neighbors purchased their property 2006 or 2007. About 2 or 3 years ago, they put up a split rail fence in their front yard, and a stockade fence in back. As near as I can tell from the survey they enclosed the only fencing that doesn't follow the property line is the wood split rail fence. In addition to encroaching on town property by about 8 ft, there is a section that they've fence out that abuts my property.

My theory, based on observing the installation of this split rail fence, is that they started at the edge of the driveway, and rather than fence the entire width fromt the driveway to the edge of the lot, using some short rails, they rounded down, turned a corner, and made a straight line from there to the property line nearest the corner of my chain link fence.

If this is the "Strip of Land" refered to in the affidavit, wouldn't the fence they paid for and installed entirely on their property be their fence, not mine?

Why can't they just move their own fence to satisfy the title company, rather than sending me a letter that basically accuses me of trying to encroach on their land?

I guess that's a rhetorical question, since clearly they paid a lawyer and not a handyman with a post digger.

So, before getting my own survey, could there be anything gained by by contacting their lawyer for clarification, or contacting the people who installed my fence? If their whole concern is the consequence of the haphazardly erected split rail fence, then I'm not terribly concerned. Irked at the crazy citiots, but not contesting the assertion that that particular wedge is their land. But if this is about my chain link fence, I'm livid.

 

[quincy]

It sounds as if your fence is on the neighbor's property and the neighbor does not want you claiming ownership of the neighbor's land that falls inside your fence.

 

[xylene]

You should get your own survey done to confirm.

 

[not2cleverRed]

It sounds as if your fence is on the neighbor's property and the neighbor does not want you claiming ownership of the neighbor's land that falls inside your fence.

How do you get that? OP said on the survey the only fence that was within the neighbor's property line was the one the neighbor erected.

 

[quincy]

How do you get that? OP said on the survey the only fence that was within the neighbor's property line was the one the neighbor erected.

From the lawyer letter. The letter says that GreenerGrass's chain link fence is 4' into the neighbor's property.

The neighbors also have two fences that they erected (front and back) that are on their own property.

GreenerGrass's chain link fence between the properties is the fence that is the problem.

 

[not2cleverRed]

From the lawyer letter. The letter says that GreenerGrass's chain link fence is 4' into the neighbor's property.

My next door neighbors purchased their property 2006 or 2007. About 2 or 3 years ago, they put up a split rail fence in their front yard, and a stockade fence in back. As near as I can tell from the survey they enclosed the only fencing that doesn't follow the property line is the wood split rail fence. In addition to encroaching on town property by about 8 ft, there is a section that they've fence out that abuts my property.

According to the survey, the chain link fence is on the property line. The split rail fence is not.

 

[adjusterjack]

It was my understanding

That means "I didn't know and I didn't bother to find out."

It was my understanding at the time that the Fence Company installed the fence in accordance with our town's code, which requires non-mutual fences be erected with a 6 inch setback from the property line.

Did you verify your property line location and mark it before hiring the fence company? No matter how good a contractor's reviews are it's still your own responsibility to do that.

But if this is about my chain link fence, I'm livid.

You need to find out where your property line is for sure. Not guess. Not assume. Not rely on anybody else to do it for you. Did the lawyer provide a copy of the survey, showing how the measurements were done, not just the map (which could have been drawn by anybody)? If not, start by getting it.

Or, just sign the paper and be done with it. Up to you.

 

[quincy]

According to the survey, the chain link fence is on the property line. The split rail fence is not.

According to the lawyer letter, it isn't.

GreenerGrass said the chain link fence was supposed to be placed 6 inches away from the property line. A survey can tell if the chain link fence was installed properly or if, as claimed in the letter, it was installed improperly on the neighbors' property.

 

[GreenerGrass]

That means "I didn't know and I didn't bother to find out."

It's been a long week. I had surgery Tuesday, and my autistic adult son keeps interrupting my train of thought. But it was right after we moved in, so most likely there was was a survey done to keep the title company happy.

You need to find out where your property line is for sure. Not guess. Not assume. Not rely on anybody else to do it for you. Did the lawyer provide a copy of the survey, showing how the measurements were done, not just the map (which could have been drawn by anybody)? If not, start by getting it.

Or, just sign the paper and be done with it. Up to you.

The lawyer provided a copy of the survey, dated May 2018. The survey describes all the types of fences - my chain link fence, her other next door neighbors chain link fence, her backyard neighbors' fences, her backyard stockade fences, and her frontyard wooden (split rail) fences. On the survey, as near as I can tell, the only fences that do not fall on the property lines are the split rail fences that the owner herself had installed. There is a triangle of land that is part of her front yard, adjacent to mine, that is outside of her fence. If that's what her lawyer is referring to, then that's not my fence - it's her fence. I don't have any fencing on that side of my front yard.

I realize that a survey reduced to a single 8 1/2 by 11 sheet of paper can only show so much, even for a .34 acre lot. But I think even at that scale, a 4 foot discrepancy should be visible on the survey.

Should I clarify this with the surveyor? His phone and email are on the survey. Or would that be improper?

It would be useless to ask my neighbor herself. She's rarely here; it's not her primary residence. I think that if she wanted a friendly resolution she would not have gone directly to the lawyer.

No way I'm signing that paper unless someone can show me a survey that actually has my chain link fence on her side of the property line.

 

[HRZ]

Anything like a fence that has been there more than 10 years in NY is up for debate as yours by adverse possession even if it's in wrong place ...and NY recently changed its adverse possession laws.......if you contend based on survey information you believe is reliable that the chain link fence is at proper location ..I would NOT sign

 

[xylene]

It's been a long week. I had surgery Tuesday, and my autistic adult son keeps interrupting my train of thought. But it was right after we moved in, so most likely there was was a survey done to keep the title company happy.



The lawyer provided a copy of the survey, dated May 2018. The survey describes all the types of fences - my chain link fence, her other next door neighbors chain link fence, her backyard neighbors' fences, her backyard stockade fences, and her frontyard wooden (split rail) fences. On the survey, as near as I can tell, the only fences that do not fall on the property lines are the split rail fences that the owner herself had installed. There is a triangle of land that is part of her front yard, adjacent to mine, that is outside of her fence. If that's what her lawyer is referring to, then that's not my fence - it's her fence. I don't have any fencing on that side of my front yard.

I realize that a survey reduced to a single 8 1/2 by 11 sheet of paper can only show so much, even for a .34 acre lot. But I think even at that scale, a 4 foot discrepancy should be visible on the survey.

Should I clarify this with the surveyor? His phone and email are on the survey. Or would that be improper?

It would be useless to ask my neighbor herself. She's rarely here; it's not her primary residence. I think that if she wanted a friendly resolution she would not have gone directly to the lawyer.

No way I'm signing that paper unless someone can show me a survey that actually has my chain link fence on her side of the property line.

The survey done by your adversary is not an impartial document. You need your own. Done recently and certainly after you put up the fence.

Don't sign without talking to your lawyer.

 

[quincy]

There is no obligation on your part to sign the letter.

The four foot placement of your fence into the neighbor's yard that is claimed in the lawyer letter is a significant property encroachment that should have been noticed long before now. It is likely a mistake. A four inch encroachment could be legitimate but four feet might be a misreading of the survey.

It would be smart for you to get your own survey.

 

[HRZ]

And get some legal eyes on NYs somewhat unique recently changed adverse possession laws ...the lands enclosed by that fence that you put up decades ago might be yours by now even if there is 4' or 40' error w or wo a survey ....

The seller wants an easy solution...do NOT sign anything just yet .

 

[quincy]

A link to 2018's Lorenz v. Soares on New York's adverse possession:

https://law.justia.com/cases/new-york/other-courts/2018/2018-ny-slip-op-50019-u.html

The law was amended in 2008 (not all that recent).

A fence is considered a de minimis non-structural encroachment, permissive and not adverse, just as mowing a lawn or planting shrubs would be permissive and not adverse.

 

[Litigator22]

Do not hasten to obtain a survey as your existence fence may indeed establish the boundary line in spite of that called for by the respective deeds or plat. To explain, please read on.

In these boundary line disputes that involve an existing division fence (or some other permanent physical feature describing or marking an apparent but clearly defining a demarcation of a division line between adjoining properties) New York applies what is known as "the doctrine of practical location" - referred to in other states as boundary by acquiescence.

Meaning that if the fence has been in place more than ten (10) years and there is proof of mutual acquiescence by the respective property owners and/or their predecessors as setting the boundary, the fence line is then deemed conclusive of the location of such boundary. And this is so regardless of the fact that it may not be the true line as called for by the deeds of the adjoining owners. (See: Jakubowicz v. Solomon 2013 NY Slip Op 04578, 107 AD3d 852 and cases cited.)