fence line disputes

You are jointly responsible for the upkeep of the fence. In this article we are going to take a look at a legal sausage, the “equitable easement.”. Thus, the prescriptive easement decisions cited by the Hirshfields are irrelevant.” Avoiding the “easement” terminology in this case, the Court of Appeal rephrased the trial court’s use of the word “easement,” and instead labeled it as an “equitable protective interest.” It also suggested that the decisions in Silacci and Mehdizadeh might be “overbroad.”. Does your neighbor have rights in your property? In this well-intended but terribly flawed decision the Court of Appeal has created an “equitable easement” while not calling it as such. If the neighbour has increased their fence size drastically recently, then you may be able to dispute this on the lines of privacy. For years Abramson had been using the disputed portion of property as a “back yard garden area.” The trial court determined that Abramson had acquired “an exclusive prescriptive easement” for the fenced-in portion of Silacci’s property. No worries, another strategy to solve the case and figure out which side of the fence are you responsible for is to put on your Sherlock Holmes hat on and find the Seller’s Property Information Form. Do I have to use a Notice to Fence? By now the astute reader of this article must be wondering how the Court of Appeal could reconcile this with the decisions holding that a backyard encroachment cannot create an easement. Ensure they prepare a new plan, to the required specification, showing the agreed boundary line for submission to the Land Registry as a Boundary Agreement. First, to explain the doctrine of agreed boundary, it arose as a means to settle boundary disputes in an earlier time when surveys were less accurate and survey monuments were often not able to be located. August 2001, The Equitable Easement is Born. The possession must be under a claim of ownership or right; in other words, contrary to the true owner’s claim. A fence built on the property line belongs to both property owners. A former owner of Mincer’s property had erected a fence with the acquiescence of his then-neighbors, the prior owners of Mehdizadeh’s property. If you find yourself in a dispute with your neighbour over a shared fence, the most important thing is to remain in contact with them and have open communication. Today surveys are more accurate and verifiable recorded boundaries are usually ascertainable. The elements of a prescriptive easement are nearly the same as for adverse possession: an open and notorious use of the property for a continuous period of five years or longer, under a claim of right to the use, in a manner that is contrary to the true owner’s rights. If you are unsure of where a boundary line is, you first need to check the legal documents that you acquired when you purchased your home. Our website uses cookies. A party who can establish all of these elements may prevail in a claim of ownership to the property. Then in June 1996 the Second District Court of Appeal (Los Angeles) weighed in on this subject with its decision in Mehdizadeh vs. Mincer. Sometimes, it can be as simple as where to stop shoveling the sidewalk in front of your property, or as complicated as an offending fence … Even if you ultimately do not proceed to litigation, an attorney can help you analyze the information you have and determine your legal rights. About your property boundaries, working out your boundary lines, boundaries and neighbour disputes, agreeing who's responsible for walls and fences Your property boundaries - GOV.UK Cookies on GOV.UK There are many common causes of fence disputes, including dangerous features and the look or style of a fence. Notice for removal of particular overhanging branches. Provincially, the Line Fences Act (LFA) seeks to provide a standard regime for resolving disputes over erection, repair and removal of line fences (fences that run along the property line) and over trees which fall onto line fences (but NOT trees overhanging property lines or line fences). This analysis must be more than simply balancing conveniences, because upholding the rights of an encroacher is close to being an exercise of eminent domain for the benefit of a private party, and so there must be proof of irreparable harm to the encroacher, not just the loss of a substantial benefit. You can read letter templates for property line disputes here. It appears the Court has made a legal sausage, only this one is hard to swallow. They are also not required to make changes to the fence simply because you have asked them to. If the fence belongs to you, you have certain rights and responsibilities. The El Paso Court of Appeals recently considered Eggemeyer v. Hughes, a case involving a disputed boundary line. In some cases title to or use of property can be acquired by merely occupying and using the property for an extended time. It is often said that the two things you do not want to see being made are laws and sausages. But this right to a specified use is a lesser right than outright ownership. However, what you can do to improve the look of the fence from your own garden is plant free standing shrubs or a hedge to conceal the fence from view or erect your own fence alongside your neighbour's. Please let us know how you heard about us, Administrative Law, Public Sector and Procurements, Private Client Services: Inheritance, Wills and Trusts, Trust, Inheritance and Succession Disputes, The International Family Law Group at Giambrone, How to solve fence property line disputes in the UK. Justice Home; About Justice; Media ＆ news; Forms, fees ＆ fines; Publications ＆ research; Contact Justice; LawAccess NSW Need legal help? First, if there is a dispute as to where the property line is, you may need to have a survey conducted to establish where your property actually … Good neighbors should agree to split the cost of the repair of fences or common boundary walls. The doctrine of agreed boundary is an exception to the general rule that the recorded property description is controlling. Neighbor Dispute #1: Boundary and Fence Issues With Neighbors. Thus no transfer of an interest as comprehensive as an exclusive prescriptive easement can be imputed to a property owner without a clear indication of an intention for such a transfer. You can also look for transfers or conveyance deeds, which you should have within your possession from when you purchased your property. Disputes about fences, trees and buildings . If a fence which is not yours is taking up space on your land, then it becomes an encroachment. The Court of Appeal was quick to say that although the trial court called its decision in favor of Schwartz an “easement,” it really didn’t mean an easement. Consider consulting an attorney. You can hand the Notice to Fence to your neighbour personally but we recommend registered post, so you can show that you actually sent it and the day it was received. You also cannot affix boards or panels to your side of the fence in order to conceal the support rails. There is a stone mound at the intersection of the section line dividing … Court Addresses Property Line Dispute Involving Fence and 100-Year Old Agreement. What do you do? They provide an impartial presence and will speak to both you and your neighbour to try and settle the dispute out of court. You can read more about having your property lines surveyed here. In that case Silacci filed suit against his neighbor, Abramson, contending that land fenced and used by Abramson as his back yard was actually Silacci’s property. In an appallingly bad decision the trial court entered judgment for Mehdizadeh, holding that the “doctrine of agreed boundary” established the boundary line at the original fence, and awarded the ten-foot strip to Mehdizadeh for the restricted purposes of landscaping and recreation, with an easement to Mincer for light, air, and privacy. When installing a fence, the customary way to do so will see posts being placed entirely on your land while the face of the fence points towards your neighbours land. Fences can, by themselves, be the subject of major neighbor disputes -- when to repair them, who pays, where exactly they go, and so on. Property line issues are ripe for disputes as improper fence placement can sometimes lead to lost land via easements or adverse possession. We’ll only use this information to handle your enquiry and we won’t share it with any third parties. Fencing disputes are often serious when the property line causes one neighbor to acquire a portion of the land that he or she did not originally purchase. The Hirschfields sued for quiet title, trespass, and declaratory relief. As a consequence of the equivocal decision in Hirschfield your lawyer cannot tell you with certainty what might be the effect of a displaced fence. It must be a substantial hardship on the encroacher to remove the encroachment for doctrine to apply to allow the encroachment to remain. Next door the Hirshfields maintained a garden that had become a “botanical showplace” with a wide variety of exotic plants and trees. Drawing on the 1994 California Supreme Court case of Bryant v. Blevins the Court said, “Where the evidence does not satisfy the requirements of the doctrine, the law should not employ the agreed-boundary doctrine ‘to trump the boundary established by the legal records’ and ‘to dispossess an owner of his land when a legal means of establishing an accurate boundary lies quite readily and conveniently to hand’.” (citations omitted). You and your neighbor may disagree as to where you should place a fence, whether a tree falls on your property or your neighbor’s property or simply where your neighbor should be allowed to plant their vegetable garden. The lawyers in Giambrone’s real estate team aim to resolve property disputes and avoid lengthy court proceedings with alternative dispute resolution. However, Oktoberfest is. A squatter who cannot establish all the elements of adverse possession, such as the requirement of having paid the taxes on the occupied land, may be able to acquire a permanent right to continue a historical use of the occupied land by acquiring a prescriptive easement. Another Fenceline Boundary Dispute. Each firm is independent of the others and regulated separately. You can clean your side of a neighbour’s fence, but you should alert your neighbour first. Disputes over property boundaries have been around for what seems like forever. Each year, over 6 million people converge upon Munich, Germany over the course of 16 days from late September thru October for the world’s largest beer festival. The Schwartzes are required to relinquish the “easement” when they sell or move. For more information or to arrange an appointment please fill in the form below. A prescriptive easement does not require the payment of taxes except in the rare instance where the disputed property is separately assessed. The trial court applied the “relative hardship doctrine” discussed in some older cases, including Christensen v. Tucker (1952). After Mincer bought his property he conducted a survey that revealed that the dividing line between the properties was ten feet farther out from the existing fence, and so he built a new fence on the property line. Property boundary disputes can exist in two different forms; trespassing, and encroachment. This perverted the long-recognized distinctions in property law between ownership and use. A successful claimant of a prescriptive easement does not acquire title, but, rather, acquires the right to continue a specific historical use of someone else’s property. If the fence being disputed is on a boundary line, you will need to find out who owns the fence and therefore who is liable to pay for repairs and replacements and who is entitled to paint it. They may supervise any fencing or building contractors to make sure there are no further arguments. The Court also reiterated that adverse possession requires the payment of the taxes on the disputed property. It can be useful to write a courteous letter to your neighbour outlining your issues and try to reach a mutually agreeable solution. However, where there is no evidence that present or prior owners had a boundary dispute or agreed to a particular resolution of it, and where recorded records provide a reasonable basis for ascertaining the boundary, the doctrine does not apply. The Court of Appeal said that the trial court erroneously granted Mehdizadeh an interest that amounted to adverse possession under the guise of a prescriptive easement because it excluded the Mincers from entering or making any use of their property. out your boundary line. Disputes over fence, wall or hedge ownership often raise blood pressure when it comes to maintenance and repair. Don’t use this disagreement to vent months or years of anger at your neighbor. In May 1996, the Sixth District Court of Appeal (San Jose) decided the case of Silacci v Abramson. For more details see our Privacy Policy. One issue that comes up frequently between neighbors is whether or not they are equally responsible for the costs, construction, and maintenance of a fence that sits on the boundary line between their properties. It described a case, also discussed in the Silacci decision, where a municipal water district had mistakenly built, fenced, and for years maintained part of its reservoir on another’s property. The law regarding fence and boundary line disputes is a combination of legislative statute and case law. November 25, 2009 | Erin Herbold Under Iowa law, if a partition fence is not located on the true boundary line and remains there for at least 10 years, it can become the boundary by default. Contact me at www.MarielSells.com or 610.310.6408! the line on which the works should be carried out (the boundary line) the type of works; the contractor; a cost estimate; how much either of you should contribute. If this doesn’t work and you cannot reach an agreement, you can report a dangerous wall or structure to your council on GOV.UK. A squatter can acquire ownership of a property by “adverse possession”, which is set out in the Code of Civil Procedure at § 325. Giambrone & Partners LLP is authorised and regulated by the Bar Standards Board in England and Wales. read The Hirshfields were two elderly sisters who, since 1940, had lived on a large lot of nearly three-quarters of an acre in Bel Air. By now the astute readers of this article will have begun to understand why the Court of Appeal reversed the decision of the trial court. Then in August 2001, the Second District Court of Appeal (Los Angeles) handed down its decision in Hirshfield v. Schwartz. Home; My legal problem i For example, the $23,000 monetary award to the Hirschfields is the “fair market value” of what? The fence has been there for as long as anyone can remember. If you intend to remove or alter an existing fence along a property line, you must have either your neighbour’s agreement or a court order. If a dispute ends up in court, it can be costly, so you should do everything in your power to avoid this. Alternatively, you can purchase the documents you need from the Land Registry. Section 841 of the Civil Code — also known as the Good Neighbor Fence Act of 2013 — states: “Adjoining landowners There are two main areas when it comes to property line disputes. One of the most common neighbor disputes is perhaps property boundary issues. In the next four paragraphs we will examine two relevant statutes as a background to understanding the case law that has evolved concerning fence and boundary lines. The firm’s client range from homeowners, brokers and lenders based in Santa Clara County, San Mateo County, San Francisco County, as well as throughout other counties in California. You may also need to seek out the seller’s property information form which can tell you more about the location and ownership of the fence. By continuing to use the site, you agree to our use of these cookies. If the fence being disputed is on a boundary line, you will need to find out who owns the fence and therefore who is liable to pay for repairs and replacements and who is entitled to paint it. For example, a boundary fence that … Both owners are responsible for keeping the fence in good repair, and neither may remove it without the other's permission. After all, fences exist not only for privacy, but also for the purpose of keeping others (mostly neighbors) out. Examples of problems could be a wall that needs repairing or who should pay to replace a fence. Palo Alto Real Estate Lawyer, Bay Area Real Estate Lawyer, Lending Law, Purchase Transactions, Foreclosure Law, Bankruptcy, Insurance Matters. A squatter who cannot establish all the elements of adverse possession, such as the requirement of having paid the taxes on the occupied land, may be able to acquire a permanent right to continue a historical use of the occupied land by acquiring a prescriptive The trial court also gave Mehdizadeh a prescriptive easement subject to the same conditions as the agreed boundary. However, it can be harder to for a dispute to come to a conclusion if you aren’t aware of where the boundary line is. Call LawAccess NSW 1300 888 529. You just discovered that the fence between your house and your neighbor’s, which has been there for years, is displaced from the true property line. The required elements are (1) uncertainty as to the true boundary, (2) an agreement between the adjoining owners to fix the property line, and (3) acceptance and acquiescence to the agreed line for five years or a different period if substantial loss would be caused by a change in the line. And, finally, the claimant must pay the taxes on the property. A misplaced fence does not create a prescriptive easement because a fence defines an exclusive use to the exclusion of the true owner. Again, it is always worth speaking to your neighbour before taking legal action. If the fence seems dangerous, you should point it out to your neighbour and try and come up with a solution. On the other hand, there may be an issue with a boundary fence … You can't paint, stain or varnish your neighbour's fence to make it a more attractive colour in your opinion. The Court held that a long period of acquiescence without evidence as to uncertainty and agreement among the original owners was insufficient to establish an agreed boundary and none could be inferred. Mehdizadeh sued, claiming a prescriptive easement over the ten-foot strip and seeking to have Mincer restore the original fence. Most of these disputes can be solved quickly and easily with open communication and compromise. Property Line and Fence Laws in California. If you and your neighbour disagree about a wall or fence, there are things you can do to solve the problem. Brewer and his firm also represent clients in debt collection, breach of contract matters, and other litigation and transactional work. If your neighbour’s fence is dangerous, the first step is to try to communicate the issue with them and come up with a solution. Fence disputes are common among neighbours with shared boundary lines. But an easement is not ownership, and therefore an “exclusive prescriptive easement” was inherently contradictory because it amounted to giving a portion of Silacci’s land to Abramson without any rights remaining to Silcacci. This article written and © Peter N. Brewer, Esq. For the most part, an easement, by definition, cannot be an exclusive use. Giambrone provides client services worldwide through its member firms and affiliates, including Giambrone & Partners LLP, Giambrone & Partners Studio Legale Associato, Giambrone & Partners Sociedad Limitada Profesional and their subsidiaries and affiliates. Under Florida law, adjoining landowners are under no legal obligation to erect fences … Anything growing over the boundary line and into your property can be cut back, including ivy. If you rent your home, ask your landlord if they’ll deal with the problem on your behalf. Mr. If your neighbour owns your fence, you cannot make changes to the fence without their express permission. Weighing the Hirshfields’ intended uses against the Schwartzes’ costs to remove and relocate the improvements, the Court determined that, although there were equities on each side, the balance tipped in the Schwartzes’ favor. Misplaced fences, roads and other boundary disputes There’s an old saying, “Good fences make good neighbors.” While that may be true normally, sometimes a neighbor’s fence is out of place and on your side of the property line. An easement is merely the right to use someone else’s land for a specific purpose; it is not ownership. You shouldn’t make any changes to walls or fences without their permission. Learn where to find details of past dividing fence disputes that may help you resolve your own issue. Mehdizadeh could not establish adverse possession because he had not paid the taxes on the strip between the original fence and the new fence. And so, since 1996, real estate lawyers have basked in the comfort of a fairly clear rule. Should you find a neighbour’s fence unsightly, there are certain things you can and cannot do. Property line disputes can occur for a few reasons. Because the doctrine of agreed boundary is an exception, it only applies under specific circumstances. This includes disagreements about boundary lines, fences, and tree trimming. A neighbour cannot affix things to your fence without your permission.

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