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Need Free Legal advice.......another neighbor/fence question

Discussion in 'Off-Topic' started by PaulR, Oct 12, 2018.

  1. 10thSFFD

    10thSFFD NES Member

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    Whenever you see "i" it is Ukrainian, not Russian. Poster is depicting a nice solution assuring good neighborly relations. It includes 5 meters of nicely maintained ground for showing any tracks. I would guess that this section will be maintained daily by OP. The 3 meters wide ditch is complimented by 2 meters wide "hill like" structure which is blended into surroundings and it looks very nice, esp. during winter months. I can't share with you what is right in front of the ditch (2 sticks). This will be the actual "fence". If, and I doubt that if will ever happen, somebody will cross this fence OP will be able to see the tracks in the area he has to maintain. Towers with cameras are optional. OP's children may utilize them as "tree houses", or OP may survey neighbor's mowing operations from there and provide the immediate feedback to his neighbor with an optional bullhorn.
     

  2. 10thSFFD

    10thSFFD NES Member

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    I am sorry, what kind of a benefit would OP get from a survey? He may actually learn that his property is somewhere else. Why to pay for something you do not need? OP wants to buy the land, he does not care about the fence.

    OP does not want to leave a headache for his children to deal with later on. So far he was making decisions under the influence of his neighbor who did well but OP may potentially end up being sorry. This is why OP needs to go over here:
    Chapter 49

    I have so many scary stories about fences! This is a serious matter and should be done correctly.
     
    Last edited: Oct 12, 2018
  3. Rob Boudrie

    Rob Boudrie

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  4. richc

    richc NES Member

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    If a fence is to be put up it benefits both parties for it to be on the correct side of the property line. As others have indicated a misplaced fence has potential repercussions in the future. Get it right the first time and sleep better at night.

    We're talking short money here. It's keeping neighborly relations positive and helps PaulR know there's not likely future issues with the property line.

    To a guy like me that has value.


     
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  5. eboos

    eboos

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    Mowing and caring for someone else's property for 20 years is not asserting exclusive ownership under color of right. However, if the fence extended into the other property, that would be asserting exclusive ownership.
     
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  6. Paul455

    Paul455 NES Member

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    DO NOT DO THIS!

    My FIL had a pool shed delivered, and asked the neighbor if he could put it on the "property" line with no surveying.

    My wife and I inherited the house, and the new neighbors took us to court to move the shed off their property.

    Is was not cheap.
     
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  7. 10thSFFD

    10thSFFD NES Member

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    You are making an excellent point which was maybe overlooked by OP. This is why I assumed that OP does not want to have anything to do with this fence.......But his neighbor is quietly dragging OP into a shared ownership of the fence. WFT? No way I would sign something like that! Let Mexico pay for the fence and the survey!
    OP read this scary link. This can happen to you!:
    Fencing Laws and Your Neighbors: FAQs - FindLaw
     
  8. richc

    richc NES Member

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    The older I get the more risk averse I become. If I can avoid potential future problems for a few hundred bucks it's an easy decision. Just do it right up front.

    Legal sh*t around a shared fence with mysterious border alignment would be soul sucking. Depositions and interrogatories and discovery and the legal bills to boot. Spend a little now, save later.

     
  9. 10thSFFD

    10thSFFD NES Member

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    Maybe you are missing some possibilities.

    OP needs to make sure that this fence is not a shared fence. This fence needs to be installed on neighbor's property in such a way that neighbor (not OP) is responsible for the maintenance. This means that the fence is 2 feet+inside of the neighbors property line. That way it is neighbors fence and there will be no future discussions about maintenance of the fence.

    In MA OP has a right not to like the fence. There are many rules and regulations which this neighbor already studied, I assume. OP needs to read them and understand that he does not need to pay for survey but he can get the survey from his neighbor for free (fence and property line).
     
  10. Chappy7

    Chappy7 NES Life Member NES Member

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    "deleted the garbage", tried to post from my phone and it didn't work out well. ;)

    You'd be better off looking at MGL and hiring professionals.
     
    Last edited: Oct 12, 2018
  11. Chappy7

    Chappy7 NES Life Member NES Member

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    It is extremely difficult to claim adverse possession, MA courts historically view it as trying "to steal" land. A fence is a good start, but one must prove open and notorious use. Two parties claiming to agree on a fence location will not suffice to meet that criteria.
     
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  12. greencobra

    greencobra NES Member

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    can you be conservative and watch judge judy, too? hoping so. [laugh]
     
  13. Chappy7

    Chappy7 NES Life Member NES Member

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    Incorrect, if the two parties agree to the location of a fence, this is mute.
     
    Last edited: Oct 12, 2018
  14. 10thSFFD

    10thSFFD NES Member

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    What is incorrect?: Once the fence is in place you can't do that much.

    I am trying to make OP aware that he should not agree with anything unless he studied all options. Once the fence is in and he agreed with it there is nothing he can do. There is plenty he can do BEFORE the fence is in it's place.
     
  15. highlander

    highlander

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    The OP's proposed agreement is what my late uncle called Maine clam digger law,parties agree that "X" is the property line for the placement for a stone wall,fence etc. Unfortunately this type of agreement lead to shots fired. Have the property surveyed and save yourself a lot of headaches
     
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  16. qqac

    qqac

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    Simple example: the neighbor plants a veggie garden right up against the fence, on top of the offset, and continues to cultivate the land for the next 20 years. If there is no agreement or license for the neighbor to do so, that offset becomes subject to the neighbor's prescriptive easement to continue to use as a veggie garden. Open, adverse, notorious, continuous.
     
    Last edited: Oct 12, 2018
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  17. JohnZ

    JohnZ

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    You said that the property was surveyed in the last 20 years. Get a metal detector and find the pins.
     
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  18. Chappy7

    Chappy7 NES Life Member NES Member

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    i would recommend taking the advice from Mannydog. In my Professional opinion, if the abutter who is erecting the fence does not want to pay for the services of a Registered Professional Land Surveyor to mark on the ground, in their professional opinion, where the fence is to be erected on their land then they are foolish. People spend hundreds of thousands of dollars on a home/property and then cheap out and don't want to protect their investment. Sadly many "land" attorneys, banks and "insert your profession here" are to blame for this. I can't count how many time I've heard "when I purchased my land/home the bank/mortgage company had a survey done". They hand me a mortgage plot plan (which is a tape measure survey in MA and does not meet the requirements of MGL & 250CMR) and politely say here it is. I politely reply thank you very much, I could not have determined where the line lies without this.

    I would also recommend either PM'ing myself or Mannydog (not speaking for Mannydog) if you have any questions. We are not attorneys, but must have a thorough understanding of MGL and 250CMR.
     
  19. eboos

    eboos

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    Good example. Certainly one that that would merit an argument. It is important for a land owner to make sure such a thing does not take place and defends their property against this type of intrusion.
     
  20. Chappy7

    Chappy7 NES Life Member NES Member

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    A mow line in MA does not constitute Adverse Possession, Courts have ruled that it must be open and notorious use + fenced in.
     
  21. AHM

    AHM NES Member

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    Zactly. People erect fences all the time without problems,
    but the bigger the uncertainty about the boundary line
    or the more valuable the property,
    the more likely it could damage the value of OP's property,
    or make it harder to sell.

    Nope. An agreement without consideration (value changing hands) is arguably not a contract.

    You don't want the neighbor (or the guy he eventually sells his property to)
    to be able to argue that it's not a contract,
    and now they've got an easement.

    OP wants to be able to identify "what's in it for me".
    That way he can say he wasn't granting an easement for the strip,
    but was renting out the land.

    Charging rent, however trivial, gets that done.

    A "revocable license" is a good way to get scrod.

    If you want to have a gentleman's agreement
    that doesn't risk creation of a prescriptive easement (or worse),
    then execute a written lease of the strip of land for a dollar a year.

    By the time you're done monkeying around getting a sturdy lease drawn up,
    the land survey may not cost much more
    and does less to burn goodwill with the neighbor over time.


    (I'd known about adverse possession for decades,
    but was gobsmacked to learn through idle web searches
    that the (non-farming and probably absentee) purchaser of
    my late cousin's ~750 acre dairy farm
    lost a couple acres of the former bull pasture
    to a neighbor who used farmland beyond the former fence line.
     
  22. richc

    richc NES Member

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    I fully admit I could be missing tons of angles. IANAL. In fact I find the law often defies logic. I'm a business guy. I'm a computer guy.

    I offered an opinion on how I might handle the situation. I have no dog in this fight. Spend a few bucks now to help avoid a nasty situation in the future.

    It's a nice guy approach IMHO that I think is mostly effective. That's all.

    YMMV...

     
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  23. icyclefar

    icyclefar NES Member

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    The bigger issue to contend with here is liability.

    Should the neighbor place the fence capturing some small portion of your land you could be found liable for any bad thing that happened there.

    Get the survey!
     
  24. W.E.C

    W.E.C NES Member

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    Bingo.
    The last property I bought , I had surveyed before closing,
    The fence on 2 sides was on the property,
    My lawyer said he would write up an agreement that fence could stay, but couldn’t be replaced without moving them back, and the owners had to sign an agreement to that fact.

    Neither of them would, so the deal hung there until the seller paid a fence guy to relocate the fences back past the survey pins.
     
  25. qqac

    qqac

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    You misunderstand consideration. $1 gets it done, but so does consideration for mutual covenants (as would be the case here with the OP). Consideration does not have to be monetary.
     
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  26. Chappy7

    Chappy7 NES Life Member NES Member

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    If the abutter installs the fence without a survey the land owner that "believes" the fence is on their property can send the abutter a registered letter stating so, very foolish without a survey by a professional. The statutory time period for a claim of adverse possession requires open and notorious use for a period of twenty years. Within that time period the owner of the land that "believes" their property has been encroached on can send a registered letter to the abutter stating the fence is over the line and please remove it or it will be removed...... PROVIDED the two parties do not agree to the location of the fence. IANAL

    If the two parties agree to the location of the fence that is a different matter, but any agreement should be recorded at the appropriate Registry of Deeds in order to protect each party.

    The reality is, if you're going to make an investment protect that investment and pay the professional to protect that investment for you.

    You can pay me now or pay me later, but I guarantee if you pay me later it's going to cost a lot more.
     
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  27. eboos

    eboos

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    This is the most I have thought about adverse possession and prescriptive easements since the bar exam.
     
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  28. AHM

    AHM NES Member

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    My issue was not whether there exists any variation of a contract
    which could be used to preclude the establishment of a prescriptive easement.

    Rather, my concern was whether non-lease alternatives
    were as effective at retaining OP's full property rights.


    I also see now that OP effectively proposed creating an easement that he couldn't get out of.

    Because "... in perpetuity or until another mutual agreement is made" sounds like PaulR isn't
    interested in retaining the right to unilaterally discontinue the agreement in the future -
    unlike the way a landlord can decline to renew a lease.


    "Value changing hands", if you will?
     

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