Friday, May 13, 2005

What Would Nozick Do?

To quote Jim Anchower, "Hola amigos. What's goin' on? I know it's been a long time since I last rapped at ya, but I've had some problems." (Yeah, it's a quote from The Onion, first resort of every blogger bereft of humor. But, hey, do you want original writing or chuckles? Me too. So check out some of the new product designs that those pros have worked up. I was crying by the seventh slide, I swear.)

First off (as Jim would put it), I've been trying to perfect my reverse-engineering of the U.S. News & World Report's law school rankings and starting the end-of-semester grading grind. But that's not nearly as interesting as my recent encounter with every libertarian's nightmare: Trespass.

In preparation of a planned home remodel, we recently hired a surveying firm to work up a detailed map of our property. A team of two surveyors came last Tuesday and spent much of the day lugging around a measuring rod and theodolite (that thing on the tripod that the surveyor peers through) around our yard. When they had finished, one of the guys called me over to a far corner of our lot and explained, "We drove a stake over there to show how far your property reaches. There's the corner of your yard—about a foot or two on the other side of your neighbor's fence."

Though the full story includes a few complicating factors, it basically boils down to this: My neighbor built his fence about a year ago without first conducting a survey. Deliberately or (more likely) negligently, he misplaced part of his fence on our property. That, my property-loving friends, constitutes trespass to real property.

What would you do in such a case? I don't meant to ask what you could do; that's too easy to answer. You could invoke your legal rights and force your neighbor to remove his fence. I don't think that's quite in order, leastwise not yet. Or, of course, you could do nothing. I don't like that option, either. It's not that we suffer material harm due to the fence's current location. Because it lies across some steep terrain, on the other side of our fence, we don't use that part of our property. But for reasons I won't get into, I don't think it's wise to just let tip-toe around this sleeping dog.

I've already taken some action. I hold off saying just what, though. First, let's see what you come up with. I know I'm not done, after all, and I hope to get some good ideas about what to do next.


Anonymous said...

i smell a market.
i say we offer to sell it to him for no less million dollars [bites pinky nail]! we'll become the landedest gentry on the block! then we can build a separate house for the kids, and they can mess it up as much as they want.

Michael Yuri said...

Assuming you really don't have any problem with the fence being where it is, you should probably just talk to your neighbor and explain the situation.

In other words, let him know that the surveyors discovered that the fence is on your property, but that you don't really have a problem with it. That should be enough to avoid future problems (suppose he decides to build a shed or dig a well)

You might consider getting some sort of written agreement, where he acknowledges that the fence is on your property, you give him permission to leave it there, and he agrees not to alter or add to it without consulting you first. Maybe you should also ask him to agree to remove the fence if he ever sells the property.

Since you're in the right legally, as long as he's a reasonable guy, and you approach him is a non-threatening manner, it shouldn't be too hard to straighten things out. Of course, it all depends on what kind of relationship you already had with the neighbor.

Anonymous said...

I was initially going to say: ask the neighbor what it might cost to move his fence back a foot, and if the figure is small offer to chip in.

But I like Michael Y's approach better.

Anonymous said...

I'd make sure you're right about the property line.

Anonymous said...

Sounds like a case for gains from trade. I would try to come up with a reasonable price - perhaps estimate the base value of my land, and look at the proportion of the lot that he has cut off. Then add a little for the trouble, and the cost of subdiving/selling him that bit of land. Then offer him that price to sell him the land, but also mention moving the fence as an alternative.


Anonymous said...

If you want to retain ownership but not use, you may have to assert your right of ownership-- perhaps by putting him on notice. If you don't assert your right, you may lose it. Ask a lawyer friend about how to be a good neighbor without running afoul of "adverse possession."

Anonymous said...

I suggest you go jump over the fence and sit in a chair on Your property. When he asks, "what are you doing?" Simply tell him you are enjoying the property that belongs to you. Then see what happens.

Gil said...

Seems like you should assert your claim to the property.

But, instead of insisting on an immediate remedy, insist that he agree (in writing) to either adjust the fence or pay the land value plus the cost of adjusting the title to that land before either of you chooses to move.

And, of course, he shouldn't make changes to the property without your approval before then.

Gil said...

Oh, I guess Nozick would sue him. Especially if he was pissed off about it.

But, I'd avoid repeating that mistake if I were you.

Anonymous said...

It is, I think, obvious that you need to assert your right to ownership.

If you really don't have a problem with the fence, then a written agreement about the negotiated rights and responsibilities are in order.

I would include future use restrictions, liability, rights of reversal, and adverse use in such a deal, for starters.

Of course, doing so might freak them out enough that they take down the fence.

Anonymous said...

That last comment is indicative of why I hate lawyers-think. I hate lawyers on a case by case basis.

Tom W. Bell said...

Thanks, all, for your comments. I agree that we need to make sure where my property line falls. We would have to have the surveyors back for that, as we had not paid them to commit to nail down that portion of our lot's boundary. A sub-question thus arises: Who should pay for that extra visit?

I also agree that mere prudence suggests that we should assert our property rights. The problem is not loss of use, but rather the risk that an easement or even a claim of adverse possession might cloud our title. That could adversely affect the resale value of the property--not an inconsiderable concern.

Right now, I'm waiting to get the plans back from the surveyor. I've already spoken with my neighbor, who has agreed to either move his fence or sign an appropriate agreement promising to do so upon fair notice. He was, in short, pretty cool about the problem. But he does want to make sure he really is trespassing, naturally. Hopefully, the plans will help convince him of that. I don't want to have to have the surveyors come back.

David said...

You've reached a point where you shouldn't have to pay for any of it--the new fence, the next survey. Your neighbor made the mistake and he should write the checks in addition to signing the contract.

And if that doesn't work, take the problem in your own hands. Nothing violent--not yet anyway. Start with idle and implied threats. Flaming poo, and so on. Building a small fort should get the single past (and I've seen your backyard, there's lots of great places for a fortification).

You can also fake demands from Landscaping Man. "It has come to my attention that your fence is wrongly placed. Surely you are not so lazy and incompetent that you can't follow a line on a map." Continue with angrier and angrier lanuage until he responds.

gt said...

You send the letter allowing him to have the fence there, this month.
You do this every five years or so.
Permissive use defeats an adverse possession claim, most of the time.
There is a hotel in new york that once a year for a day blocks off the sidewalk - so nobody can claim an easement to continue walking there, in case they someday want to expand or suchlike.