quote:

Originally posted by ASKSmith:
My parents bought their house in 1990. Had a survey done. New neighbors moved in, and put a firepit in. My parents got another survey done, and it does show the fire pit is encroaching their property by 1.98ft.

What kind of surveys? There are several. For residential properties usually only a location survey is done. For a truly accurate survey you need a boundary survey, where the surveyor will either set or recover (the existing) corner markers.

Boundary surveys are much more involved and expensive than location surveys.

quote:

Originally posted by ASKSmith:
It is basically centered on the property line. I’m not sure of their county’s ordnances, but I know some have statues that any structure muse be a certain amount of feet away from the property line.

ITYM statutes And, not being a lawyer, real estate or otherwise, ICBW, but I'm not certain a fire pit qualifies as a "structure."

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Originally posted by ASKSmith:
They are in the process of obtaining a lawyer, ...

Wise move. And communicate no further with the offending neighbor. Let the lawyer do his or her job.

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Originally posted by jhe888:

quote:

Originally posted by joel9507:
The concept of 'easement' is something that seems incredible when you first hear about it, but essentially if someone is not prevented from doing something on your property for long enough, under 'easement' they eventually gain the right to continue and the owner cannot then prevent them from doing so.

You are thinking of adverse possession, not easements.

I was 99-44/100% certain that was the case. Figured I'd let a Real Lawyer take it, though


Personally, I'd have surveillance cams up like right now. One of them would certainly capture the offending fire pit.

I'd have powerful motion-sensing floodlights that covered the offending area, as well.

Get a permit and put a fence right down the property line, have the fence builder pull up the half of the fire pit and nicely place it on their property. Fences make for good neighbors and probably cheaper than the lawyer avenue and a more permanent solution. They're not going to argue with the county building inspectors sign off on the fence.

You will need two people to resolve this: Licensed Surveyor for a boundary survey to locate the property line and an attorney to throw some weight behind the issue. If both parties can agree on a surveyor, that's even better, but they MUST be licensed in your state.

In certain circumstance you can get the local zoning dept involved if there is a violation, but they can't tell you where the property line is...only a surveyor can.

quote:

Originally posted by joel9507:
The other things is, depending on the 'easement' laws in their state, letting it slide for too long might wind up making it impossible to address later.

The concept of 'easement' is something that seems incredible when you first hear about it, but essentially if someone is not prevented from doing something on your property for long enough, under 'easement' they eventually gain the right to continue and the owner cannot then prevent them from doing so.

Ask your parents to bring this up with your lawyer - they'll know how the easement rules in their state impact your parents' options as to how to proceed.

It sounds like you are referring to what is called a prescriptive easement. In Kommiefornia, someone can sue for a prescriptive easement if they have been “openly and notoriously” using the property against the owner’s interest for a period of time. There are multiple strategies for dealing with this.

A good lawyer where your parents are is likely the best first step. They can guide your parents as to the potential for problems and the best solution.

A surveyor can survey and either find or set any missing corner points and file a record of survey with the county. It is illegal for your parents’ neighbor to interfere with the surveyor or move the survey markers, but it might be worth videoing things and or measuring offsets from fixed things like trees or buildings just in case.

Once the boundary is clearly marked, your parents can decide how they want to move forward. It is up to them, but IMO the expression “Good fences make good neighbors” has been around forever and is in the common vernacular for good reason.

But first, find that good lawyer, and quickly...

Resolving this issue depends on local law, which varies significantly from state to state. Adverse possession (taking property through use) is something to be concerned about but it generally takes a long time (seven years in Florida) and your parents' objection should preclude it.

Get the boundary established by a reputable, licensed surveyor and then take action if necessary. If it came to it, they could probably sue for trespass but these situations are very delicate because they will be living next door to their adversary. Get a lawyer who solves problems, not a self-styled litigator who treats every issue like a battle.

Surveyors are helpful when the correct survey product is ordered and performed.

I'll also echo...lawyer. A good, PROPER lawyer practicing the correct law. Also...there's the law, and then there is, how it really is. That is different by location, as pointed out earlier in some places like kommifornia, mean people can take your stuff and get away with it legally. That's when you stop talking on internet forums and solve the problem. I hope you can exhaust peaceful solutions first.

My firm handles similar situations quite often. We've been a part of litigation and solution to several worse than your parent's situation. Some people are just bullies, and use the loopholes good nature of most people to take advantage. Historical easements and other crazy property line and access disputes in Alaska have taken a national stage and we've had a few of our cases at the Supreme Court.

Some of your questions should very easily be solved by looking at the parcel plat appropriate to the neighborhood. An As-Built survey, as mentioned... isn't always the correct product, but it can be helpful in establishing the encroachment. It sounds like you've done that, so now boundary surveys and determinations of potential easement violations would come next. BUT...all of that should be handled by the Lawyer. Once the encroachments are established and proven, then viable solutions, as well as damages, can be determined, perhaps by a real estate appraiser appropriately qualified and experienced to perform such an analysis. We make decent money performing that analysis. We make even better money charging $300 an hour for the expert witness services when it all goes to court. In our state, the losing party pays the oppositions legal costs, including our fees. The extent of those costs can be an effective negotiating point. They might choose to move their fire pit and allow the fence to be built, it would be significantly cheaper than dealing with the damage costs they're potentially racking up.

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Originally posted by joel9507:

Assuming you got title insurance when you bought the property, talk to the title company. What you pay for with title insurance is for them to clear title issues, and if they can't give you what the deed you insured calls for, they open their wallet to litigate/settle/compensate. Some policies cover boundary disputes (ALTA?) and other's don't. The title company will know. Probably worth a nickle to call.[/QUOTE]

For an owner to have an extended coverage Owner's policy would be possible but it is rare. The lender will always get ALTA coverage but that only protects the lender.

quote:

Originally posted by ASKSmith:
This is a dispute between my parents and their neighbors, who live out of state.

My parents bought their house in 1990. Had a survey done. New neighbors moved in, and put a firepit in. My parents got another survey done, and it does show the fire pit is encroaching their property by 1.98ft. It is basically centered on the property line. I’m not sure of their county’s ordnances, but I know some have statues that any structure muse be a certain amount of feet away from the property line.

This has become a nightmare for my parents. It sounds like threats or intent of threat have been made by the husband/boyfriend towards my parents. My parents have made upgrades to their backyard, all of which are well within their property boundary. A fish pond, a fence to keep their dog in their yard, as well as keeping the neighbors kids out of the fish pond.

They are in the process of obtaining a lawyer, but what can they do in the meantime? They have concerns of their dog/fish being poisoned, vehicles damaged, etc... I’ve suggested they immediately put up cameras, post NO TRESPASSING signs, document everything, and call the police ASAP with any negative interactions with the neighbors. My parents are pushing 80y/o, and I’m not sure how old the neighbors are, but they have young kids.

They have contacted the fire marshall twice, and he told them to call back anytime the neighbors had a fire. So they have, and that is why they got the second survey done. I’m going to suggest they call the fire Marshall again, and send a copy of the new survey, which clearly shows the fire pit is on their property. There are trees directly above the pit, and that is the cause of concern for my parents. The neighbors are burning trash and using accelerant (as my dad calls it) to get the fires going, and the flames are coming into contact with tree branches on my parents property.

This is why I refuse to live in a town or city ... although, even we country folk have disputes about property lines, trespassing, hunting rights, littering, etc.

Gather as much proof as possible ... hire a lawyer as they are already doing and avoid confrontation as much as possible until the courts intercede and then abide by that ruling. In cities and towns you're at the mercy of the courts and mere inches make a big difference.

Out here it's usually over fence lines or livestock grazing or dirt road rightaways. We're fortunate to have good, fairly like-minded neighbors but out here we measure our neighbors by acres or miles. By how close the gunfire sounds during practice shooting weekends.

I would recommend talking to an attorney, especially as you may have legal rights that may be time-sensitive.

That being said, I might suggest you discuss with your attorney whether the cost of attorney's fees will eclipse (1) having a professional arborist cut the trees back from the pit, and; (2) having a company put up a 6' or 8' privacy fence three feet back on your side of the disputed property line?

Your attorney may point out the potential loss of rights, such as losing a 5' strip of land and some fees for the above and you can then balance whether the loss is worth the fee to preserve the right.

(For a comparison of rates, check out the USAO matrix: https://www.justice.gov/usao-d...ile/1305941/download. I would use this to set reasonable fees when asked for them.)

In the early middle of the 1960"s while still in high school I worked with a registered land surveyor after school / on weekends / summer vacations. Every thing from city residential lots / rurual acerage / to large tracts farm and timber acerage. During this time had several encounters with one or both unhappy land owners disputing the boundry lines. Had several encounters with one or both sides carrying shotguns and or pistols. Even after finding the old buried buggy axle marker as described in the old land records.. Get professional advice . ............................................. drill sgt.

Anything placed on my property - becomes my property.