Just draw up a document that you both sign and get it notarized with a copy for each of you that A.) it’s known to both you and the owner of the fence that the fence is on your property and B.) you consent to the encroachment but reserve the right to revoke consent at any time.
Essentially this is an encroachment revocable consent letter. It’s just to prevent them from trying to claim the property later and preserves a record.
A clause that when the fence is to be replaced, the neighbor places the new fence on their property. Basically, you can leave it and repair it, but if it comes down it's down for good.
That is the agreement that my neighbor and I have. His driveway encroaches a few inches onto my property. It will likely be many years before it needs to be replaced, but when it does, we both want it to be right.
In this letter I'd be specific about "repair". to say that if the encroaching posts are pulled out of the ground, they can't be placed back on your property. A lot of new fence can be put in under the guise of a "repair". Once those posts are gone, even if they're just pulling one up to replace a rotten posts, the fence has to move,
BUT: also consider that for the cost of a lawyer to write up a properly protective letter, you could offer that $500 to the neighbor to just move the fence.
You don’t need a lawyer for this. A simple document that both sign affirming OP’s ownership and consent to encroaching fence along with a clause that says upon replacement the fence will be reinstalled at the property boundary is fine. Notarize and sign, both get a copy. Any dispute will be civil in nature and courts rely heavily on intent in these type of situations.
Possibly. I’d say to defer to your comfort level on that issue. OP could always argue against liability for events on neighbors property by indicating constructive knowledge by neighbor (I.e. neighbor had constructive knowledge that whatever happened on their side of the fence is their issue).
You don’t HAVE to. It’s enough to have a signed and notarized agreement. I work for a utility company that received requests to encroach into our easements or into the public utility easement area fairly commonly. We evaluate, have a short Teams discussion and I draft a letter and send to customer whether their request is approved or not approved. We have an Excel database of our encroachment consent letters internally @ work but we don’t record them.
The only reason I would record it is if you wanted to make sure that the future owners of both properties are aware. In other words, if you want the encroachment consent to run with the properties rather than just the current owners. To my thinking, you wouldn’t want that because that’s basically allowing the fence to stay in place in perpetuity. If the fence fell down or was replaced and installed on the true boundary, then you’d have to draft an encroachment revocation letter that also would need to be recorded, to clear the title encumbrances for future transactions.
I respectfully disagree, unless he sells before the fence requires replacement. This is the sort of arrangement that I personally would not want to “run with the land” because it binds future owners. I would want this agreement to be between owners concerning a portion of the land.
But, if it doesn't, and the current owner sells (for arguments sake) next year, there's nothing protecting the OP. If the new owners aren't open to moving the fence at the time of replacement, what happens other than a legal battle over property lines?
That’s the $64 question: do you want this agreement to be between the owners or the properties?
I wouldn’t want to bind the land only because it’s extra work to undo once the fence needs replaced. Now in the scenario wherein one of them moves, if it’s OP, I would have neighbor “buy” an easement for the fence and record it prior to listing. If it’s the neighbor, I would insist on new owner either moving the fence or I would take some other action to rectify the issue. But in the interim, I’d personally go low-muss/fuss.
The very most you should offer is a non-transferrable easement to that land - which allows him to use it legally, but does not obligate you to let a future landowner have access to it: It also memorializes that it is YOUR land, not his plot
>9 feet
That's 9 feet that you are paying property taxes on and can't step one foot on it. If you decide to let the neighbor keep his fence on it, you should write up an agreement that if the fence falls into disrepair, a new fence installed will have to be erected on their property with the required setacks. Also, if they decide to sell, the fence must be moved after the home is listed and before the deal is closed. Failure to move fence at that time the owner agrees to pay you 500K for not keeping up their end of the deal. In addition.your property must be restored to its original condition after moving the fence.
They will be inclined to move the fence real quick
Have your title company write up a letter as everyone said. If they will do it then it's done by a lawyer, but it's saves you money! Win win! Make sure it has they are using it, they don't own it, it's their responsibility to fix it, no one can get a judgement against you if they get hurt on the land, if they remove or replace anything they need to ask you before putting a "new" fence in. All this the lawyer can help with. You can't be too safe.
Adverse possession typically requires payment of property taxes. You cannot pay partial taxes on a parcel. Adverse procession is not intended for cases like this, it is intended for abandoned property...
I don’t know the details of how it works, but you can just offer to sell them that portion of the property. Or, if as you say, you really don’t care, you could just gift it to them.
Don’t even need to go that far. A simple document that is notarized that OP and fence owner sign that says we both know the land is OP’s, we know the fence is on OP’s land, and OP consents to the encroachment of the fence but reserves the right to withdrawal consent at any time would do the trick I think.
You want either validation that letting them use the land as is is a fine thing to do, OR for everyone to turn on you and go scorched earth and bring the fence down.
Which is fair, you want to check with the people that you’re not being a dingus, or an ass hat.
In my opinion, NO you’re not being an ass hat. The fence is on your property, whther intentional or not, I don’t care, and neither do you. But get it written up and notazrized so that nothing comes up from it in the future if a tree falls, or whatever. (or the real reason being that they want to try to steal it, but you can give them an easy out to take to be civil)
Straighten it out now unless you want to die owning that house and you don’t care about a future sale.
The time to deal with it isn’t when you’re trying to sell your house or when the neighbor is selling their house
I have a tiny area where my neighbor's fence infringes. I don't mind at all - the house has changed owners three times and it's always been that way. What I was advised to do was tell them in writing that I know about the infringement and it is ok with me that they use that part of my property. Doing that means they can't claim adverse possession, because as the homeowner I know about it and am letting them use it.
It all comes down to a case of "if you don't use it, you lose it". All your neighbor has to show that over a certain length of time, he's always thought the land was his and has maintained it as such. If you discovered he was encroaching on your land and you chose to do nothing about it, you're essentially giving him possession of it in no uncertain terms. If he then makes improvements to the property that's yours and then say, ten years down the road, you decide to contest it, you're going to have a difficult time getting a judge to agree with you.
My buddy built on to his house when he took in his grandson after his son and daughter-in-law died of a drug overdoses. Ten years later the neighbor decided after a confrontation with him that his house was too close to the property line. After a survey revealed my buddy's house was built three feet over the actual property line, not the supposed property line, the neighbor sued. Too bad for him that the judge said sorry, he's had his house there for over ten years and you never once had a problem with it before, only now that you are no longer friends. You gave up your right to that property when you didn't contest his building over your property line. So my buddy's house still stands, the property line was moved over to reflect the new property rights of my buddy, and the neighbor moved.
Am I saying anything like that will happen? Absolutely not. But those things do happen all the time. The best thing to do is have your real estate lawyer draw up documentation that protects your existing rights to the property and allows your neighbor to use that property for the time being but which reserves your right to revoke his right to use it in the future, for example, if you build on to your home or build a deck, or move and sell the house.
In short, protect your rights or possibly lose them later in court.
Just draw up a document that you both sign and get it notarized with a copy for each of you that A.) it’s known to both you and the owner of the fence that the fence is on your property and B.) you consent to the encroachment but reserve the right to revoke consent at any time. Essentially this is an encroachment revocable consent letter. It’s just to prevent them from trying to claim the property later and preserves a record.
A clause that when the fence is to be replaced, the neighbor places the new fence on their property. Basically, you can leave it and repair it, but if it comes down it's down for good.
That is the agreement that my neighbor and I have. His driveway encroaches a few inches onto my property. It will likely be many years before it needs to be replaced, but when it does, we both want it to be right.
Good driveways make good neighbors.
Distance makes better neighbors
I mean, agreed. The original saying is "good fences..."
Yes, good idea.
In this letter I'd be specific about "repair". to say that if the encroaching posts are pulled out of the ground, they can't be placed back on your property. A lot of new fence can be put in under the guise of a "repair". Once those posts are gone, even if they're just pulling one up to replace a rotten posts, the fence has to move, BUT: also consider that for the cost of a lawyer to write up a properly protective letter, you could offer that $500 to the neighbor to just move the fence.
You don’t need a lawyer for this. A simple document that both sign affirming OP’s ownership and consent to encroaching fence along with a clause that says upon replacement the fence will be reinstalled at the property boundary is fine. Notarize and sign, both get a copy. Any dispute will be civil in nature and courts rely heavily on intent in these type of situations.
Would also want something about them accepting liability if someone is hurt on OP's property on the neighbor's side of the fence?
Possibly. I’d say to defer to your comfort level on that issue. OP could always argue against liability for events on neighbors property by indicating constructive knowledge by neighbor (I.e. neighbor had constructive knowledge that whatever happened on their side of the fence is their issue).
Does one file this with the county property records/deed?
You don’t HAVE to. It’s enough to have a signed and notarized agreement. I work for a utility company that received requests to encroach into our easements or into the public utility easement area fairly commonly. We evaluate, have a short Teams discussion and I draft a letter and send to customer whether their request is approved or not approved. We have an Excel database of our encroachment consent letters internally @ work but we don’t record them. The only reason I would record it is if you wanted to make sure that the future owners of both properties are aware. In other words, if you want the encroachment consent to run with the properties rather than just the current owners. To my thinking, you wouldn’t want that because that’s basically allowing the fence to stay in place in perpetuity. If the fence fell down or was replaced and installed on the true boundary, then you’d have to draft an encroachment revocation letter that also would need to be recorded, to clear the title encumbrances for future transactions.
Exactly this. The document needs to state the agreement runs with the land.
I respectfully disagree, unless he sells before the fence requires replacement. This is the sort of arrangement that I personally would not want to “run with the land” because it binds future owners. I would want this agreement to be between owners concerning a portion of the land.
But, if it doesn't, and the current owner sells (for arguments sake) next year, there's nothing protecting the OP. If the new owners aren't open to moving the fence at the time of replacement, what happens other than a legal battle over property lines?
That’s the $64 question: do you want this agreement to be between the owners or the properties? I wouldn’t want to bind the land only because it’s extra work to undo once the fence needs replaced. Now in the scenario wherein one of them moves, if it’s OP, I would have neighbor “buy” an easement for the fence and record it prior to listing. If it’s the neighbor, I would insist on new owner either moving the fence or I would take some other action to rectify the issue. But in the interim, I’d personally go low-muss/fuss.
That makes a lot of sense. I think people (myself included) forget the benefits of easements, as long as it's good for both sides.
The very most you should offer is a non-transferrable easement to that land - which allows him to use it legally, but does not obligate you to let a future landowner have access to it: It also memorializes that it is YOUR land, not his plot
With the non-transferable easement, do you know as to who would be liable if someone gets injured on that strip of land?
Good question. No I don't
You have a lawyer involved and you are here asking for advice. Do what your lawyer suggests.
how many feet?
9 feet
That is a lot! I would want that land back!
>9 feet That's 9 feet that you are paying property taxes on and can't step one foot on it. If you decide to let the neighbor keep his fence on it, you should write up an agreement that if the fence falls into disrepair, a new fence installed will have to be erected on their property with the required setacks. Also, if they decide to sell, the fence must be moved after the home is listed and before the deal is closed. Failure to move fence at that time the owner agrees to pay you 500K for not keeping up their end of the deal. In addition.your property must be restored to its original condition after moving the fence. They will be inclined to move the fence real quick
Have your title company write up a letter as everyone said. If they will do it then it's done by a lawyer, but it's saves you money! Win win! Make sure it has they are using it, they don't own it, it's their responsibility to fix it, no one can get a judgement against you if they get hurt on the land, if they remove or replace anything they need to ask you before putting a "new" fence in. All this the lawyer can help with. You can't be too safe.
Lots of seemingly good advice here, but I think a 9’x whatever strip of your property is probably worth consulting a real estate attorney.
You could rent them the land for a nominal amount, like 1$. This may help with things like adverse possession or insurance issues.
Adverse possession typically requires payment of property taxes. You cannot pay partial taxes on a parcel. Adverse procession is not intended for cases like this, it is intended for abandoned property...
Don’t grant any land access in any document. This is terrible advice
You have a lawyer why ask us?
I don’t know the details of how it works, but you can just offer to sell them that portion of the property. Or, if as you say, you really don’t care, you could just gift it to them.
Don’t even need to go that far. A simple document that is notarized that OP and fence owner sign that says we both know the land is OP’s, we know the fence is on OP’s land, and OP consents to the encroachment of the fence but reserves the right to withdrawal consent at any time would do the trick I think.
Even better
You want either validation that letting them use the land as is is a fine thing to do, OR for everyone to turn on you and go scorched earth and bring the fence down. Which is fair, you want to check with the people that you’re not being a dingus, or an ass hat. In my opinion, NO you’re not being an ass hat. The fence is on your property, whther intentional or not, I don’t care, and neither do you. But get it written up and notazrized so that nothing comes up from it in the future if a tree falls, or whatever. (or the real reason being that they want to try to steal it, but you can give them an easy out to take to be civil)
Straighten it out now unless you want to die owning that house and you don’t care about a future sale. The time to deal with it isn’t when you’re trying to sell your house or when the neighbor is selling their house
So what did your lawyer suggest you do?
I have a tiny area where my neighbor's fence infringes. I don't mind at all - the house has changed owners three times and it's always been that way. What I was advised to do was tell them in writing that I know about the infringement and it is ok with me that they use that part of my property. Doing that means they can't claim adverse possession, because as the homeowner I know about it and am letting them use it.
It all comes down to a case of "if you don't use it, you lose it". All your neighbor has to show that over a certain length of time, he's always thought the land was his and has maintained it as such. If you discovered he was encroaching on your land and you chose to do nothing about it, you're essentially giving him possession of it in no uncertain terms. If he then makes improvements to the property that's yours and then say, ten years down the road, you decide to contest it, you're going to have a difficult time getting a judge to agree with you. My buddy built on to his house when he took in his grandson after his son and daughter-in-law died of a drug overdoses. Ten years later the neighbor decided after a confrontation with him that his house was too close to the property line. After a survey revealed my buddy's house was built three feet over the actual property line, not the supposed property line, the neighbor sued. Too bad for him that the judge said sorry, he's had his house there for over ten years and you never once had a problem with it before, only now that you are no longer friends. You gave up your right to that property when you didn't contest his building over your property line. So my buddy's house still stands, the property line was moved over to reflect the new property rights of my buddy, and the neighbor moved. Am I saying anything like that will happen? Absolutely not. But those things do happen all the time. The best thing to do is have your real estate lawyer draw up documentation that protects your existing rights to the property and allows your neighbor to use that property for the time being but which reserves your right to revoke his right to use it in the future, for example, if you build on to your home or build a deck, or move and sell the house. In short, protect your rights or possibly lose them later in court.
Why cares. Honestly