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FENCE LINE DISPUTES

Posted by: In: Newsletter Archive 25 Mar 2015 Comments: 0

BY THOMAS J. SCRIBNER

(Please understand that the answers to these questions are general in nature and may not cover every individual situation.)

One of the most often asked questions I get in a real estate practice is regarding a fence line dispute. The facts are usually these: person A has a survey done and finds out his property line actually goes on the other side of his neighbor, person B’s, fence. A is upset that B has taken such advantage of him and wants B to immediately move his fence or he will take it down and sue for damages.

Before this matter blows up, whether you are person A or B, ask yourself the following questions:

  1. Why am I really upset? I find that about half the time the fence line dispute is really just being used as leverage to place pressure on the other party for a completely unrelated set of facts.

If there isn’t something else at the root of the problem, ask this question:

  1. How much is the property worth that we are arguing over? Often when you look at the price per square foot the property is selling for and then multiply that amount by the number of square feet at issue, the value of land you are fighting over is not more than a few hundred dollars. If that is the case and you don’t need the property for another reason, think hard before you spend thousands of dollars taking it to court; it is simply a bad business decision.

If you get through these questions and still want to go forward, ask yourself this:

  1. How long has the existing fence been there? Society in general does not want to fill the courts with fence line disputes, so it has determined that if the fence has been there twenty years or more, it will generally be upheld, even though the survey says otherwise. Don’t forget that surveyors often don’t even agree where the line should be. These questions are the ones most often litigated and it can be quite costly to do so, because it often requires witnesses to get on the stand and testify about when and why the fence was put in.
  2. Finally, is there a contractual right to be reimbursed attorney’s fees if you win? These cases rarely have attorney’s fees available, so you can spend many thousands of dollars going to trial, win, and then realize that you have spent ten times the value of the property at issue.
Make sure that if you are thinking about going forward with one of these cases, you use experienced real estate attorneys.

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