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

[quincy]

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.)

I disagree that the doctrine of practical location applies in the described situation.

Look at when the fence was installed (2002) and the adverse possession law's amendment (2008).

Here is a direct link to the case you cited: https://caselaw.findlaw.com/ny-supreme-court/1635409.html

A New York Supreme Court, it might be important to note, is not the highest court in the state, unlike other states where the state's Supreme Court is the highest court.

 

[GreenerGrass]

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.)

As quincy has pointed out, the 2008 change might be a factor.

However, in order to install the fence we had to remove poles with live electrical wires running out to them. I have been told by other neighbors (and my electrician) that a previous owner of my property, who died in 1979, had erected him. (Apparently this man was a bit of a local legend in the electrician community, even decades after his death.)

 

[quincy]

I think you will need your own survey ... although you have the luxury of doing nothing at this point. A lawyer letter is just a letter.

 

[GreenerGrass]

Update: I've spoken to my next door neighbors' other next door neighbor. He's an occasion handyman for her. Apparently the would be buyers were going to get their mortgage through her, as the bank denied them. But she hadn't mentioned the fence as an issue.

He also said that he had a similar problem with another neighbor. He refused to sign it as the misplaced fence was their own fence.

I realize that this is not much of an update. I'm going to wait on getting a survey until I clarify with the neighbors' lawyer that the letter means what you've concluded it means.

I figure worse case scenario, they really do mean my chain link fence. In which case, I'm not signing and will get my own survey.

And if it turns out that no, my suspicions are correct, and the neighbor misunderstood her own survey, jeopardizing her home sale with her wooden fences all erected without a care for property lines, well, we could all use a good laugh. And I'm still not signing.

Best thing: either way the neighbor gets billed for my phone inquiry.

 

[quincy]

I think you have a good plan.

If you have the opportunity to provide an update later, we would be interested in hearing how it all turns out.

Good luck.

 

[GreenerGrass]

Spoke to the neighbor's lawyer. He said the area in question is a triangle on the survey. That triangle is in my neighbors' front yard. So yes, the issue is the split rail fence that my neighbor had her handyman put up. (It appears that in addition to fencing out a triangular wedge in her front yard, adjacent to mine, she also encroached 9 feet onto town land.)

However, that's not what the letter says. The letter says the property is, "behind your house," and refers to "your fence misplacement". The letter from the lawyer additionally states that he has "highlighted the problem area" on the enclosed survey, even though there is nothing highlighted on the survey.

Of course, the more important part, I would guess is the affidavit. The description there is of "a fence located on the property owned my neighbor and which fence is located up to 4.0 feet southwest of the northeasterly record line of the division line between the property that I own and the property owned by my neighbor."

Am I being difficult or unreasonably picky in feeling this isn't specific enough? As written, couldn't this apply to any fence near/on that property line? The wooden fence is less than 50' long. The lot line between us is 150'.

Am I being mean in not wanting to sign this, and thinking that if my neighbor is having problems with title insurance and making a sale because of the fence she put up, maybe she should just fix it by putting it in the right place.

I also spoke to a local real estate agent (not one involved in the listing), and she commented that about 1 in 4 properties in our area have a problem like this at sale, the title insurance people just want it free of a threat of eminent domain. I don't see how eminent domain could be an issue with a fence put in around 2015, well after 2008.

 

[Zigner]

Tell the attorney it's not your fence, nor is it on your land, so you don't understand why you are even being asked to sign the document.

 

[quincy]

Spoke to the neighbor's lawyer. He said the area in question is a triangle on the survey. That triangle is in my neighbors' front yard. So yes, the issue is the split rail fence that my neighbor had her handyman put up. (It appears that in addition to fencing out a triangular wedge in her front yard, adjacent to mine, she also encroached 9 feet onto town land.)

However, that's not what the letter says. The letter says the property is, "behind your house," and refers to "your fence misplacement". The letter from the lawyer additionally states that he has "highlighted the problem area" on the enclosed survey, even though there is nothing highlighted on the survey.

Of course, the more important part, I would guess is the affidavit. The description there is of "a fence located on the property owned my neighbor and which fence is located up to 4.0 feet southwest of the northeasterly record line of the division line between the property that I own and the property owned by my neighbor."

Am I being difficult or unreasonably picky in feeling this isn't specific enough? As written, couldn't this apply to any fence near/on that property line? The wooden fence is less than 50' long. The lot line between us is 150'.

Am I being mean in not wanting to sign this, and thinking that if my neighbor is having problems with title insurance and making a sale because of the fence she put up, maybe she should just fix it by putting it in the right place.

I also spoke to a local real estate agent (not one involved in the listing), and she commented that about 1 in 4 properties in our area have a problem like this at sale, the title insurance people just want it free of a threat of eminent domain. I don't see how eminent domain could be an issue with a fence put in around 2015, well after 2008.

With the attorney letter, you are under no legal obligation to sign anything - so just refuse to sign.

You can have your own survey done if you feel it is necessary (your option) or if a legal action of some sort is pursued against you (which seems unlikely).

Good luck.

 

[GreenerGrass]

Update: I didn't sign. Somehow the sale went through anyhow.

I told the new neighbor about the fence/survey issue. He said that he didn't like the fence and plans on removing it.

Thank you!

<3 GG

 

[quincy]

Thank you for the update. That worked out well.

 

[Stephen1]

I'm seeing a lot of guessing here regarding which fence and which area of property the lawyer is referring to. I believe OP should write to the lawyer and request a clarification in writing as to which fence the lawyer is referring to and to what area of the neighbor's property the neighbor doesn't have access to and is concerned about. With that information then OP can proceed with an informed discussion and decisions.

 

[quincy]

I'm seeing a lot of guessing here regarding which fence and which area of property the lawyer is referring to. I believe OP should write to the lawyer and request a clarification in writing as to which fence the lawyer is referring to and to what area of the neighbor's property the neighbor doesn't have access to and is concerned about. With that information then OP can proceed with an informed discussion and decisions.

It appears from the update that no discussion on the fence will be needed. The house sale went through and the new owner has plans to remove the fence.

 

[GreenerGrass]

It appears from the update that no discussion on the fence will be needed. The house sale went through and the new owner has plans to remove the fence.

Yep.

The new owners haven't removed the fence yet, but given their landscaping choices (fairy statues unlike the metal 5 ft rooster and removing the vines in the back yard), I am optimistic that they will be easier to get along with.