Encroachment Or Not?

[Indiana Jones]

I've searched this site as well as my "The Appraisal of Real Estate" book from the AI and can't find a good answer.

Is a fence (or hedges) that is built on the property line considered an encroachment? If there are hedges on the property line who owns them? Who has to trim them? Does either HO have the right to remove these items?

Your thoughts please.

 

[TEL2002]

Mike unless it is SUPER obvious I don't see how you can call it without a survey being done. If the owner says Hey his bushes are on my side, I would just mention it in the report...and not make a judgement call. It could be the owner is mistaken as to the actual location of the property line. (I came home from work one day and my new neighbor had leveled an area 65'x20' of my woods and graveled it. This area was next to his house & driveway and he wanted a wider spot to park his cars. A one year battle began.. .he finally moved the gravel...but we still do not speak...the dirty *&&^@%$!*&*&&. It cost me $400 to get that side surveyed again to prove my case.)

I don't think you sould give a financial impact until it is proven there is an encroachment. Other than anger, what damage is caused by 2" of a fence being over the line???

In many rural areas the fence is on the property line and it is legally the responsibility of both parties to maintain the fence.

 

[Restrain]

Unless it's a "material" incroachment, I wouldn't worry about it. If you look at most surveys, you'll see that the fences on older properties generally meander along the property line and is not directly on it. Same with bushes, etc. However, if the driveway of the adjoining property is half on your side, then it's a material encroachment, because the adjoining property owner now has part of your property through adverse possession.

Roger

 

[Patti Jury]

Okay...having a Father that is an endganneeerrr...he now spends all day doing ILC's

What is an ILC..you ask...

"Improvement Location Certificate".

Not a survey but is a cheaper method for lenders to understand lot boundaries, possible encroachments, legal descriptions, and fence lines..

Through my experience.. when in doubt..

Recommend and ILC!

 

[Jo Ann Meyer Stratton]

An appraiser or surveyor cannot determine an encroachment. Property needs to be surveyed by a licensed/registered land surveyor who would report all the facts he/she could discover. Then a judge would have to make a determination if an encroachment exists and then make a decision of how the problem should be solved. Or all the involved parties could come to an agreement on the solution to the problem and exchange deeds so that their legal boundaries match their physical boundaries.

Also be aware of the laws of your state. The "Improvement Location Certificate" that Patti mentions is illegal in the state of Arizona. A complete boundary survey has to be completed by a registered land surveyor. Sometimes an entire section has to be surveyed and then broken down to that single small residential lot before the actual boundaries of the lot can be established. Until the lot boundaries are established, nothing else can be determined. It is also illegal in Arizona for an engineer to do a survey unless they are also a registered land surveyor. "Stake and Flag" are also illegal in Arizona. So I repeat be aware of the laws of your state.

 

[Richard Carlsen]

I doubt that hedges or any other natural growing thing could be considered an encroachment. Unless there was a boundary dispute between neighbors.

I suggest you just eyeball it and if it looks sort of close, mention it in your report but do not make a judgment one way or t'other. You are not qualified to do so and just open yourself up to additional liability if you do make a judgment other than to raise the possibility.

Mortgage reports or location reports or location surveys as they are called are not boundary surveys. They only show the location of the improvements on the site but do not set corners or correct any old survey errors. If there is a question raised by one of these, it is usually either an obvious encroachment or will be resolved by a full survey.

 

[Indiana Jones]

This was a totally hypothetical situation, I'm not having to deal with this for a report (thank goodness). I was just wondering because 1) I just bought a new house and according to the survey my neighbors fence is built on the property line. Not a big deal to me, but when I build my fence maybe I can butt up to his and save some money! and 2) there was an article in the paper the other day about a couple who cut down a 25' long hedge that was between their property and the neighbors. Well it turns out the neighbor is a lawyer and the couple are losing their house because of the attorney's fees. So my wife shows me this article and asks about it. I explained to her that if the hedge was on the couples property but hung over onto the lawyers property then the lawyer had no case and was being a jerk. But if the hedge was on the lawyers property then they never should've cut it down and were dumb to fight. I'm just a little fuzzy as to who is right if the hedge was on the property line (which I suspect is why this case has gone so far.)
Anyway, I was just wanting to know for posterity sake.

 

[Verne Hebert]

Your issue is definitely a state law dependent issue. I would have to think in most states the decision would be somewhat a function of the UBC, in terms of permanent improvements by definition.

I have an issue on one of my rental properties right now that I need to research. Somewhere along the property line are huge old growth evergreens. They are overshading the neighbors house and my rental. One of the trees is growing against the front of the house and is pushing the wall out-of-plumb. The owner wants to remove them all. He thinks they are on the property line. I pulled a tape from a known pin and I think they are on my property.

Regardless, everybody likes a good neighbor. When this issue pans-out, I will post the outcome to the Forum for a take on "property line plant life" in the State of Montana.

Oh, by the way. In looking at this I also think their last addition to home is encroaching on my lot a few inches (no setback laws in this area).