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Old 12-07-2014, 09:29 PM   #1 (permalink)
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Join Date: Dec 2014
Posts: 1
Whose Responsibility?

Background:

My home was built in 1908 and my neighbors before that. In that era, property lines were odd, and in the case of all the homes in this neighborhood, one person's property line butts up against the home of the neighbor.

I bought my home 13 years ago. My neighbor and the previous owner agreed to an easement which allowed a fence to built on their property to allow a reasonable space along the side of the house. When I bought the house my neighbor reiterated that the property was there's but it was ok that that I use the space as an easement and the fence could remain.

6 years ago, the fence rotted and started falling apart. The neighbor had a space on the other side of the fence that had a dilapidated bird house and the area around it was becoming a garbage pit. I asked that if I cleaned up the area and paid for a new fence, would you allow me to use that extra space. They said they don't use it and go right ahead. A handshake agreement. So I cleaned everything up and had a really nice fence built. It replaced the existing fence in the exact same place and included the new 200 sq ft square area. I had a gate put in so that they had direct access if they needed it and/or if they ever decided they wanted the property back. At no time did I ever consider the property to be mine. .

6 years went by and no issues, but now older they have decided to sell their property. Figuring they would need access I cleared out my patio furniture etc and the area is clear for them to do with as they will, show etc.

However I just received a letter telling me to take down the fence immediately. Failure to do so will necessitate their remedy of removal and will seek damages through the court process. Honestly, we have had such a good rapport of the years to receive a letter like this is a bit dumbfounding.

My question - The fence is 100% on their property. So despite the fact that I paid for the fence, the fence is theirs. As mentioned their property line butts up against my house. If they want to remove the fence they have every right to do so, I am not stopping them if that is their wish. I am not claiming the property is mine. Never have. It was an easement of mutual agreement. Am I correct in thinking that the removal of the fence is not my physical or financial responsibility? That if they want to remove it, it is their responsibility?

Also, as previously mentioned, it has been over 6 years since the agreement of the additional space and over 13 years for the initial access easement. If they continue to be difficult, I could and have every right to acquire a Prescriptive Easement preventing them from taking down the fence or forcing me to do so and retain the right to use the space.

I have suggested that the most logical and common sense approach is to leave well enough alone, sell their property and let the new prospective owners and I work it out. They wouldn't have to worry or deal with it at all. I have also stated that removing the fence would potentially do more harm for them than good as by doing so would leave no fence between the properties, thus no boundary or privacy.

Thanks for any advice-
Krazy Kritter is offline  
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Old 12-08-2014, 10:47 AM   #2 (permalink)
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Join Date: Apr 2014
Location: San Jose, CA
Posts: 98
Fence Dispute

A fence that is completely on another neighbors property and not sharing boundaries with your property would be the responsibility of the owner who owns that land in which the fence is built on. First you need to determine whether the fence is actually and completely on their property by hiring someone who can come and measure the actual boundary lines between you and your neighbor. If the fence is on your property as well, then you and your neighbor must split the cost for the fence maintenance. If the fence is completely on the neighbors property, than the fence would not be your liability and you would not have to share or split the cost for the repair or takedown.
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