Fence disputes are a common occurrence
Q. We live in a community where most of the houses are on weird-shaped lots. A young man wants to buy the property next to ours, but the bank ordered that he first get a survey of his property to establish the legal boundary lines between his place and ours. The survey report says that the brick wall that separates our respective backyards encroaches about 1 1/2 feet onto his property, so now he wants my wife and I to pay to tear the wall down and build a new one in its proper place. The wall was here when we purchased the home six years ago, and we didn’t know about the encroachment. What can we do?
A. “Good fences make good neighbors,” poet Robert Frost wrote, but he obviously didn’t live in a modern-day subdivision. Countless lawsuits are now filed each year by one homeowner against another when it’s discovered or alleged that a permanent divider illegally protrudes on the plaintiff’s property.
Fortunately, you don’t have much to worry about.
The wall was there when you purchased your home, which means you obviously didn’t build it yourself and probably have no legal obligation to tear it down and replace it. And even if the surveyor’s report is accurate, the divider stands just a foot or two over your neighbor’s property line — which makes it his problem, not yours.
It would be a nice gesture if you offered to pay half the cost of removing the wall and rebuilding it in the proper place, even though you may have no obligation to do so. If you obtained an owner’s titleinsurance policy to protect your interest in the home when you first purchased the property, call the insurer for additional suggestions.
If your neighbor eventually decides to file a lawsuit for what he believes is the extra 18 inches of terra firma that he thinks he owns, it’s doubtful that a judge would rule in his favor.
Should you want to get testy, you could even countersue and ask a judge to demand that the wall stay exactly where it is under the state’s easement by prescription or adverse possession laws — two related legal concepts that allow people to permanently occupy or use another’s real estate (even if it’s just a brick wall), provided that certain conditions are met.
If you and your wife can’t reach a satisfactory agreement about the shared wall with your neighbor over a cup of coffee, you’d be wise to consult a real estate attorney for help soon.
REAL ESTATE TRIVIA
Breach of contract is the top reason why buyers or sellers sue, a national law firm reports. That’s followed by specific performance lawsuits (when one party doesn’t live up to the other’s expectations), fraud and then boundary disputes.
Q. If my husband and I create the type of money-saving living trust that you often recommend and then put our house into it, would we have to rewrite the whole document and pay lawyer fees again if we later want to add other assets, such as stocks or bonds?
A. No, you wouldn’t have to spend a lot of money to totally rewrite the living trust.
Many homeowners create an inexpensive living trust so their heirs can quickly inherit a house or other property without going through the costly, time-consuming and emotionally painful probate process.
A well-written trust includes a simple provision, usually just a paragraph or so, stating that the creator of the trust can transfer property into or out of the trust by filing a simple amendment, which can often be done with little or no help from a lawyer.