Question: My wife and I bought our house in 2011. Soon after we bought it, we landscaped the back and front yards. We replaced the existing fence in its exact location, and we put in hardscaping and concrete planters that go right up to the fence line along with a concrete pad for a hot tub.
When we bought the house, our neighbor was an elderly woman with whom we were on friendly terms. We never had any discussion about the improvements apart from telling her that we would replace the fence at our cost. A few years later, she fell ill and went into a nursing home where she passed away.
Her children recently sold the home, and our lives have not been the same since. The new neighbors immediately informed us that, according to their survey, the true boundary line between our lots runs 18 inches inside our fence. We have seen the survey, which they had done before they even bought the property, and their survey is correct.
I have offered to pull back on some of the landscaping in the front yard, but tearing out the improvements in the back yard and moving the fence would be very costly and disruptive. When my wife and I approached our neighbor about working out a deal, he pointed to his circular saw and threatened to take the fence down himself — saying that he had fought overseas for the right to protect borders and that he had the right to do so here.
I called the cops on that occasion, who explained to him that he should not use self-help measures. But he’s still acting strangely. For example, he has recently been snapping photos of our property from his roof, standing outside our second-floor bedroom and bathroom windows. He says he is going to sue. What should we do?
Answer: Landscaping disputes can be dangerous, as evidenced by recent news accounts of the altercation between Sen. Rand Paul and his neighbor. Since your neighbor sounds a little intimidating, you’d best proceed with caution.
Although selling and moving may sound appealing, you likely will have to disclose the property boundary dispute to any prospective purchaser. So you may be stuck until the problem is resolved.
The yard improvements that cross onto your neighbor’s land are encroachments. An encroachment is the extension of a building or other structure beyond the boundaries of the land on which it was rightfully constructed without the permission of the owner.
Although the prior neighbor may not have objected, it sounds like she did not offer her actual permission. In fact, it sounds like no one knew where the true property line was at that time.
An encroachment constitutes a trespass on the land of another, and your neighbor can sue in court. But the real question is not whether you are liable for trespass but instead what remedy the court will apply in this situation.
In a case like this, a judge, without a jury, has the discretion to select the remedy. The court can issue a mandatory injunction, i.e., an order for removal of the encroaching improvements, or instead the court can allow you to keep the improvements and order you to pay your neighbor. It all depends.
The court will determine whether an injunction is appropriate based on the “relative hardship doctrine.” Under the relative hardship doctrine, the court looks at three factors: the innocence of the defendant encroacher, the type of injury to the plaintiff whose land is harmed, and the hardship on the defendant if the injunction is granted.
Here, the court should see that you acted innocently when you made the improvements, given that you and your prior neighbor honestly believed all the property within the fenced area was yours. The court also will look at the cost and disruption to you if you were ordered to remove the improvements.
As for your neighbor, the court will look at his injury, in particular to see whether monetary compensation would be adequate. Given that he only recently bought the house with actual knowledge of the existing property line defect, the court may believe that monetary compensation will address the harm.
If your neighbors proceed with legal action, be sure to present the lawsuit claims to your homeowner’s insurance company, your title insurance company, or both. These policies may offer some protection from their claims.
In addition, your neighbor’s pictures may be actionable claims for invasion of privacy. You have a right to privacy in your own home, and if he is positioning himself in such a way as to disturb your and your wife’s privacy, you should raise the issue.
You are probably in for some rough times ahead. But the Hatfields and McCoys ended their legendary feud, so there is always some hope — even after the lawsuit — that you and your neighbor will be able to peacefully coexist.
Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.
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