Legal Question in Real Estate Law in California
Fense location
Our neighbor had a survey done and it indicated that the fense is 4.5 inches into his property. The survey company said the margin of error is a couple of inches. Our neighbor wants to move the fense to be the deadcenter of the property line and split the cost with us.
We verbally agreed to it
as long as he leave our trees by the fense along.
He has now torn down the fense and put in new posts in a position
that require one of our trees to be practically cut down.
Does he have right the the
few inches of the land? The fense has been there for at
least 10 years. No one has disclosed to us that the fense
is at the wrong place. Both of us purchased our houses
around 5 years ago. Is there a grandfather law?
Our neighbor extended a line from the markers from other neighbors
to form the new fense line, so we
do not know how accurate this line is. Does
this new fense define the new property line? Our title company
told us did not think so. Is this true?
Is there a law fense must be built and the neighbors must
to share the cost?
He said that he will seek mediation service or file class
action suit against us. I really do not see what he can
suit us for. We are at Los Altos, California.
1 Answer from Attorneys
Re: Fense location
Please consider what type of person you are dealing with who
makes a fuss over 4.5".
It is not easy to predict what will happen in a case like yours, if you had gone
to court to prevent the removal of the fence or now to claim some rights in the
4.5". Some
judges might find an "easement" for the 4.5", although some decisions
criticize an easement which amounts basically to a right of ownership.
Your neighbor has no right to build a fence "down the middle", which means
partially on your property, without your consent. Without your consent, he
must build the fence on his own property. If your verbal promise was conditioned
on the safety of the trees, and he is breaking that promise, you can try to seek
a preliminary injunction and/or file a trespass suit. Probably, his idea about
a mediation service makes most sense.
A fence by itself does not define property lines unless there had been
some doubt or uncertainty about the boundary, and it was agreed that the
fence defined it. That rule is not generally applied in semi-urban areas
where property lines generally can be determined with some precision.
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