Boundary line dispute

My neighbors recently informed us that they actually owned 2 ft of our property. They were installing a fence and since out city does not require setbacks, they planned to put it right on the property line. By doing this, they left us about 1ft behind our garage. We asked that they at least give us enough room to maintain the building, but they refused. We did get a new survey, but it supported them. Now, I realize that the Plat and Survey do not match the Deed. I haven't had time to go to the courthouse and do a title search, but I am wondering which document is the one that determines the boundary lines. I think it should be the deed. On my plat, the rear boundary point is noted as "fence post". It seems to me that the deed should overrule the plat. Am I right and should I pursue this? I would like for them to remove the fence and give me back my property. If I prove my case, would a judge be likely to order the fence removed. (This fence is a brick foundation picket fence with 2ft of concrete as a foundation.

I think it's time to do that title search & obtain copies of all recorded deeds on your property. Typically a recorded document (deed, etc.) will take precedence over a plat of survey; again, your city or county clerk's office can best answer that for your particular jurisdiction. Given the past problems you've already posted, you may want to consider consulting with an attorney well-versed in your local boundary dispute law who can better interpret your actual property lines and get these ongoing problems resolved, once and for all. Good luck.

Well, I have seen a lawyer. He agrees that I have a case, but it will cost me $10,000 to fight these people who have stolen MY property. It really seems absurd that it would cost me that much when I did nothing wrong. He told me that, in South Carolina, we can't ask for my lawyers fees if we win the suit. What's a person to do??? This problem really has to be solved. Any suggestions out there??? By the way, it is actually 4ft of property, not 2.
Thanks

Well, I live in SC and I haven't paid my attorney a penny for a lawsuit he is representing me in that has to do with prescriptive easements and a defective deed. My attorney is most assuredly asking for his fees as part of the damages for which we are suing.

In the situation involving my late husbands house which is now part of his estate and not owned by me, (separate financial interests) we (well, HE was sued, and as the executor of his estate, I am included) were sued by a former owner who "forgot" to record an easement on the deed when she sold the house years ago, but retained ownership of two small buildings behind the home. That was 12 years before my late husband purchased the home and is sued for reformation of the deed because they 'forgot' to record something and it took them a dozen years or so to remember it.

This type of law is complex and a CLERK cannot make the determination for you as to whether your deed or your plat is the accurate document. Far be it from me to ALSO point out that DEEDS, PLATS and SURVEYS ARE ALL RECORDED documents--not JUST DEEDS. Deeds are ruled to be defective-----and you do admit that there are other references to their having a right ( whether through prescriptive easement, or some other claim of right.) Of course, depending on how much time has lapsed, they could argue, as I have in my case, that they are barred from bringing this action against me based on the Doctrine of Laches (meaning, basically, that the other party has wasted time in asserting their right, slumbered--in common vernacular, ya snooze, ya loozzzzzzzeee.)

So, no, the deed isn't necessarily the authority on determining property ownership. It is possible for the deed to be defective , as it was in the case I just mentioned.

My countersuit, then was for damages, loss of property value, etc. and harassment and inconvenience. I have prevailed at every hearing so far.

You need to consult with another attorney.

Unfortunately, according to the American Rule it's true that you would probably not win a judgment for attorney's fees. Generally speaking, attorney's fees are only awarded when a contract specifies that the opposing party pay them, after defending against a frivolous suit, or where statute requires it (e.g. certain consumer protection laws and civil rights laws).

While I think you should speak to another lawyer about cost, $10,000 for a lawsuit is probably not out of line. If the attorney charges $200/hour and works a total of 50 hours on your case from beginning to end, that's $10k.

I guess I have gotten a bargain. ( Note to my avid fan: the action to which I am referring in this case <Lis Pendens> IS part of the public record if you wish to investigate it as you do everything else). I haven't paid a penny out of my pocket to my attorney. Remind me to send him a thank-you note.

The lawsuit that was levied against my husband and his property ( and subsequently me ) WAS and IS frivolous. The previous owner's attorney forgetting to record an easement "Well, we MEANT to put it in there"----on a deed 12 years ago is hardly grounds for reformation of the deed since my husband was a bonafied purchaser for value, there has been no adverse possession with opened, hostile, continuous, notorious < yada yada yada> use of the property, and prescriptive easement laws don't apply in this case either.

Perhaps therein lies the difference. Either way, such is my personal experience and that, only I can speak to.

Note to OP--perhaps you'd do better to take that money and BUY that four feet of property from your neighbor. Hey, it's worth a TRYYYYYYYYYYY.

Perhaps. As I previously mentioned, a defendant will sometimes be awarded attorney's fees if he is the victim of a frivolous lawsuit. Hopefully you won't be surprised if you (or your late husband's estate) are eventually billed. If I were you, I'd ask for clarification about what will happen if the court does not award attorney's fees as part of the judgment.

Here are a couple of recent quotes on the subject from the South Carolina Supreme Court:

"Under the "American Rule," the parties to a lawsuit generally bear the responsibility of paying their own attorneys' fees." Layman v. State, Opinion No. 26427 (S.C. 1/28/2008) (S.C., 2008).

"Attorney's fees are not recoverable unless authorized by contract or statute." Jackson v. Speed, 326 S.C. 289, 486 S.E.2d 750 (S.C., 1997).

Of course I asked that question before EVER entering the courtroom. I also have it in writing, very clearly, if the case is not won, I do not pay--In fact, I didn't even pay a retainer fee. In his response to the Lis Pendens, he listed there to recover his fees and has repeatedly pointed to the ridiculous nature of their complaint.

I think the situation was one where a wealthy family in our small town ( the plaintiff ) had engaged in other activities before the lawsuit in an attempt at "recovering" their easement. For example, I woke up one day to find a public STREET sign on my gravel driveway that led to nothing besides HER two small hovels. ( Her attorney is the CITY attorney ). I also had police officers at her beckoning come to my home and FORCE me to move my cars from out of my own driveway. I took on City Hall, Counsel, and the City Attorney personally and was issued an apology in writing from the City on behalf of the police officers who acted inappropriately, as well as the City attorney for putting up a public street sign when there had been no emminent domain or any other reason for such to happen. The matter had nothing to do with the city----but due to her wealth and influence, these events unfolded.

Perhaps my attorney was hoping something the City did would be actionable. Something about the case was attractive to him. Maybe it was me!!<delusional laugh>

Then you have indeed gotten a bargain and should send a thank you note.

I haven't written anything, but I do appear regularly with home made warm from the oven blue berry muffins.

I may be on to something. Hmmmm......