Allow me to begin by stating this is only an academic question. While it illustrates a real situation, there is absolutely no property dispute between any of the involved parties.

Facts:

1. Several years ago, property owner "A" contracted to have a decorative retaining wall constructed on his property. With owner "B's" permission, owner "A" had the wall extend perpendicularly ~2 feet over owner "B's" property line. It was agreed upon at the time the construction of the wall in this manner was of benefit to both owners.

2. Owners "A" and "B" had only a verbal agreement. There is nothing in writing.

3. Owner "A" exclusively contracted with and paid the landscaping company for the wall. Owner "B" had no input in the design or payment of the wall.

4. Recently, owner "B" sold the property to owner "C" and moved away.

Here is my question:

If the new owner "C" desired to be disagreeable, could owner "C" successfully sue owner "A" to have the ~2 foot section of encroaching wall removed at owner "A's" expense (assuming owner "B" is unable to testify he gave verbal permission to owner "A" to have the wall built over the line)?

Thank you for addressing my curiosity.

This message has been edited. Last edited by: hjs157,

How long has the Wall in question existed ?

Around these parts, if it has been there 7 years, the new owner cannot force the issue.

This depends on your state's law. What they do in other states is the same only by coincidence.

I don't know the answer in Texas, and I certainly don't know the answer in Pennsylvania.

quote:

Originally posted by wreckdiver:
Around these parts, if it has been there 7 years, the new owner cannot force the issue.

This for my area as well. BUT, if I was the buyer of the property I would force it to be moved, because I certainly wouldn't want to lose 2' of my property if it stays over 7 years.

quote:

Originally posted by TomV:
How long has the Wall in question existed ?

I'm guessing the wall is at least 7 years old but certainly no more than 10. New owner "C" assumed the deed to the property about a year ago. In PA, "statutory law provides an owner 21 years to eject an adverse possessor. I'm not sure how the law applies in this example since the wall predates the recent sale of the property.

I would challenge Owner C bought said property with the wall included.

As the retaining wall in on Owner C's side of the line, it is their prerogative (and at his/her expense) to keep or remove the said wall unless, Owner A can show property damage (like from flooding) will occur if said wall is removed.

If the wall is functional, and Owner A doesn't want the wall removed, things can get complicated.

When I bought my first home we had a survey done. It showed the neighbor put half a bricklined flowerbed in our yard. My family's advice was to tell him to remove it lest it becomes their property. I asked and they did so. Unwillingly. The puchasing homeowner has rights especially if the survey shows he does.

I purchased my first house and it looked like the trailer next door was over the line. I had a survey done and sure enough it was.

A letter from a real estate attorney and I notified the town and the trailer was torn down pretty quick. The city was gonna fine them 100 a day.

The seven year doctrine referenced above is called adverse possession, and it does not apply here because the possession has to be adverse (without permission) and exclusive (to the exclusion of the real owner). The time period can usually be “tacked” which means the clock does not reset when the property is sold.

There are a couple of scenarios I see:

1. The verbal agreement created an easement in favor of A which allowed A to build a wall belonging to A on B’s property. Whether a verbal easement followed by use is binding is a local question.

2. The agreement allowed a wall to be placed on B’s property but it did not convey any interest in the land, therefore the part of the wall on B’s property belongs to B and he can do with it what he wishes.

If the property had been called Blackacre this would have brought back memories of my first year of law school.

quote:

I would challenge Owner C bought said property with the wall included.

As the retaining wall in on Owner C's side of the line, it is their prerogative (and at his/her expense) to keep or remove the said wall u

That's how it would work around here, but as stated earlier, there are probably different remedies in different states based on their laws.

quote:

Originally posted by a1abdj:

quote:

I would challenge Owner C bought said property with the wall included.

As the retaining wall in on Owner C's side of the line, it is their prerogative (and at his/her expense) to keep or remove the said wall u

That's how it would work around here, but as stated earlier, there are probably different remedies in different states based on their laws.

The section of the wall on B's property would have (almost certainly) been shown as an encroachment on C's survey and excluded from coverage under the title policy so C probably knew about it. That doesn't mean that A owns the wall or has the right to keep it on C's property free from interference by C. There are a lot of circumstances where a buyer is stuck with non-conformities that they knew about when they made their purchase but real estate isn't one of them. The law is intentionally set up to make it hard to permanently divest yourself of real property which is why, for example, verbal easements usually don't hold up. Yes, there are regional variations but the US inherited most of its real property law from England and it is a very constipated discipline so things like the statute of frauds, which requires agreements to convey land to be in writing and signed by the person giving up their rights, are very near universal.

quote:

Originally posted by DaveL:
The section of the wall on B's property would have (almost certainly) been shown as an encroachment on C's survey and excluded from coverage under the title policy so C probably knew about it. That doesn't mean that A owns the wall or has the right to keep it on C's property free from interference by C. There are a lot of circumstances where a buyer is stuck with non-conformities that they knew about when they made their purchase but real estate isn't one of them. The law is intentionally set up to make it hard to permanently divest yourself of real property which is why, for example, verbal easements usually don't hold up. Yes, there are regional variations but the US inherited most of its real property law from England and it is a very constipated discipline so things like the statute of frauds, which requires agreements to convey land to be in writing and signed by the person giving up their rights, are very near universal.

I understand this to say in the absence of a written agreement between A and B, upon transfer of the deed to C, C acquired use and control of this portion of wall while A has no legal claim of ownership. And while it appears C can legally remove the section of wall if desired, does the burden of removal fall exclusively upon C or can A be forced to remove it since it was A who initially contracted to have the wall constructed?

I am not a lawyer, my opinion that in MA that would be a prescriptive easement and it takes 20 years for the it to become defensible.

In Real Estate in almost all cases if its not in writing you have nothing.

I know of one case that cost a broker (his insurance co.) a chunk of change that the broker claimed the boundary was a fence and it was on the neighbors property.

The new owner sued the broker for misrepresentation and won.

We had that case in continuing education class.

We told to say it may be the boundary but you need a survey to show your property lines and I make no representations as to where the actual boundary is.

A quick lookup shows in PA the time frame is 21 years.

You need to check with a PA lawyer for an up to date interpretation of the law in PA

If C has a problem with it he'll let you know.

Neighbor of mine, his neighbor has pool equipment fencing that's in his yard, it's been there for many years.

He bitches but does nothing about it...

Might be worth broaching the subject over a beer once you've made acquaintances, you'll find out his temp quickly and then come to an amicable solution hopefully without lawyers, guns or money...

quote:

Originally posted by DaveL:
The seven year doctrine referenced above is called adverse possession, and it does not apply here because the possession has to be adverse (without permission) and exclusive (to the exclusion of the real owner). The time period can usually be “tacked” which means the clock does not reset when the property is sold.

There are a couple of scenarios I see:

1. The verbal agreement created an easement in favor of A which allowed A to build a wall belonging to A on B’s property. Whether a verbal easement followed by use is binding is a local question.

2. The agreement allowed a wall to be placed on B’s property but it did not convey any interest in the land, therefore the part of the wall on B’s property belongs to B and he can do with it what he wishes.

If the property had been called Blackacre this would have brought back memories of my first year of law school.

This is good general law, but again, check your state. The comments about being given permission are important, because if he has permission, his use of the land isn't adverse; it is with permission and may be in the nature of an easement.

In Texas, casual fences can't generally be used to establish adverse possession. The thinking is that fences are often carelessly installed without knowing for certain whether they are on the right or wrong side of the line, and are also impermanent. So most fences won't even give rise to a claim for adverse possession.

I bought my first house in VA in 1996, had a survey done, all good. Sold it in 2004 and the new survey said my fence was 2' past my property line. I had never touched any part of that fence in the eight yrs I lived there. IIRC, the buyer accepted a $300 credit to let it be his problem if anything ever came of it.

quote:

Originally posted by hjs157:

quote:

Originally posted by DaveL:
The section of the wall on B's property would have (almost certainly) been shown as an encroachment on C's survey and excluded from coverage under the title policy so C probably knew about it. That doesn't mean that A owns the wall or has the right to keep it on C's property free from interference by C. There are a lot of circumstances where a buyer is stuck with non-conformities that they knew about when they made their purchase but real estate isn't one of them. The law is intentionally set up to make it hard to permanently divest yourself of real property which is why, for example, verbal easements usually don't hold up. Yes, there are regional variations but the US inherited most of its real property law from England and it is a very constipated discipline so things like the statute of frauds, which requires agreements to convey land to be in writing and signed by the person giving up their rights, are very near universal.

I understand this to say in the absence of a written agreement between A and B, upon transfer of the deed to C, C acquired use and control of this portion of wall while A has no legal claim of ownership. And while it appears C can legally remove the section of wall if desired, does the burden of removal fall exclusively upon C or can A be forced to remove it since it was A who initially contracted to have the wall constructed?

Pretty much. When C bought the property he bought the land and all improvements thereon, including the wall. C therefore has the prerogative to remove it but he would have to do so at his expense. That would be different if the wall was built without permission.

To reiterate what several have said, including jhe888, this is general property law. The details will vary from state to state and those details usually determine the outcome of issues like this. I'm only chiming in because, as you said, this is an academic question. If it was not the beginning and end of my advice would be to consult a local lawyer.

quote:

Originally posted by DaveL:
Pretty much. When C bought the property he bought the land and all improvements thereon, including the wall. C therefore has the prerogative to remove it but he would have to do so at his expense. That would be different if the wall was built without permission.

DaveL - Thank you for the explanation. This exercise involves a debate I recently had with a good friend of mine ("A" in this example). Of course and as mentioned, there is absolutely no property dispute between "A" and "C". During a hypothetical discussion with my friend, I stated that without written permission from old owner B, new owner C may be able to legally force the portion of wall removed at A's expense since it was built over the line. My friend totally dismissed this possibility stating any and all responsibility he previously had to that portion of the wall ended upon owner C assuming the deed. It appears to me if this were a real case, the greatest sticking point would be whether or not B's verbal permission carries any weight. Thanks again for your replies.