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My neighbor built a fence that crosses our property line. I had a surveyor come mark the boundary to be sure. (It has only been a few years so no adverse possession possibilities.)

This neighbor is now selling the house, and I'd like to force them to fix the fence before they sell so that I'll have good relations with the new neighbor.

Is there a way for us to prevent the sale of the house until they have moved the fence? For example, it seems that filing suit against the current owners doesn't necessarily prevent the sale, and that the suit would be pointless after the sale is complete.

  • You should be able to get an order that allows you to remove the offending portion of the fence (without damaging it), so that it will be obvious to the new owners that there is an issue there, or the current owner has to move it to the correct side of the property. – Ron Beyer May 9 at 14:16
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Is there a way for us to prevent the sale of the house until they have moved the fence? For example, it seems that filing suit against the current owners doesn't necessarily prevent the sale, and that the suit would be pointless after the sale is complete.

You can't prevent the sale, but if you file suit to adjudicate the boundary dispute and file what is called a "lis pendens" giving notice that the suit is filed in the real estate records, the buyer will taken subject to the lawsuit and realistically, won't close in the first place.

The prospect of an impending sale is unlikely to be something that would cause the court to take expedited action or issue a temporary restraining order, because you can preserve your rights with a "lis pendens" which doesn't take a court order.

The absolute minimum amount of time in which you could get a court order on the merits without a temporary restraining order is perhaps three to four months, which is almost surely too long to prevent a sale of a house.

The suit isn't pointless after the sale is complete. You can still enforce the boundary against the new owner. And, often, a new owner, having no ego in the placement of the fence, might settle the case sooner than the old owner would have.

But, better practice in terms of neighbor relations would be to file suit first, so that the new buyer, if the buyer goes forwards with the sale, is aware of the defect. The old owner is also more likely to have evidence useful in the lawsuit you bring.

Short of filing suit, send a letter to the realtor and the neighboring property owner with a copy of the survey advising them of the problem. If you could somehow figure out who was handling the closing, you could tell them too. This will impose upon them a legal duty to advise the new buyer before closing, and if they fail to do so, they expose themselves to the risk of a fraud lawsuit from the new owner.

But, while this is cheaper, it also presents a risk that they won't warn the buyer who will then not have notice and the risk of being sued for fraud may cause the seller and the seller's realtor to resist your suit more aggressively and to be less prone to settle it.

If you wanted to be really aggressive, you could give the neighbor notice that the fence is over the line and that you will destroy it if the neighbor doesn't act, and then tear down the fence, which is strictly speaking within your rights if you can do so without a breach of the peace, because it is on your property. I wouldn't recommend this approach, however, as it could lead to violence or police involvement that depending on the policeman who isn't trained in real estate law, might get you arrested which is not good even if the charges are later dismissed.

  • Again, you can not tear down the fence without maybe going to jail. Also, it may be different in different places, but Lis pendens referes to saying the property is in dispute, not something on the property in IL and IN at least. – Putvi May 9 at 17:10
  • A boundary dispute (which is what any case involving a misplaced fence is) goes to the ownership of part of the property and is a routine example of the kind of case where a lis pendens is appropriate. I've never seen a boundary dispute/fence location case where a lis pendens is not filed and I've litigated at least half a dozen or a dozen of them, and I've seen many other filed in cases where I am not representing a party. The risk of getting an arrest depends - if you have a survey on hand when it is done, and the current owner has moved out and gotten notice from you, it is less likely. – ohwilleke May 9 at 17:17
  • It shouldn't be a boundary dispute though, because the title would be accurate. The description of the property in the clerk's office would still be the same and what is purchased would be legally available to sell. It would come down to whether the fence is the legal property of the neighbor or something left on your lawn, which obviously is the latter, but if you destroy it without proof, the neighbor can call the cops. – Putvi May 9 at 17:23
  • "The description of the property in the clerk's office would still be the same and what is purchased would be legally available to sell." The definition of a boundary dispute is broader than you suggest. – ohwilleke May 9 at 17:24
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    @Putvi What part of that doesn't matter isn't clear? The standard for a dispute over ownership of property is not whether one side is right or not in the end. It is whether someone has done something on paper, or in the real world, that amounts to a claim of ownership. Building a fence including land that isn't yours does that. I agree that until the adverse possession period has run, that the landowner will win unless the amount it is over the line is de minimus or it was built with permission. But, that dispute over ownership arises when the fence is built and so a lis pendens is proper. – ohwilleke May 9 at 17:50
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Your neighbor's fence encroaches (not trespasses) on your property, so the first stem would be for you to write a demand letter where you state what the encroachment is and what reason you have for believing that there is an encroachment. You need to make a specific demand, that is, don't just provide the information that the fence encroaches on your property. For example you could demand that the portion of the fence on your property be removed by May 20, 2019 (but that might be seen as unreasonably short: it depends on the nature of the fence and encroachment). It might be a good idea to hire an attorney to write that letter if you don't know what a demand letter should look like. More times than not, this is all it takes to get the fence removed (and I assume your actual interest is fence-removal, not sale-preventing). There is a separate question regarding the permit to build a fence – is a permit required in your municipality, and did he get a permit?

If the demand is not satisfied, you could either file a lawsuit to force removal of the encroaching part, or you could remove it yourself. The danger of the latter approach is that you might be sued for damaging your neighbor's property, which includes the sticks or stones that he put on your land. Additionally, if you take the law into your own hands, you could not get compensation for damage done to your property. There is also some danger that the neighbor will go ballistic, and a slim possibility that the surveyor was mistaken. Going to court takes longer and costs more, but is much safer.

The prospects that you will prevail in court are high if your understanding of the facts is correct, see this analysis of Massachussets case law.

  • Woah, don't remove it yourself. That is destruction of property and you will go to jail, not be sued. – Putvi May 9 at 16:35
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    @Putvi You might be arrested in certain circumstances, but it is legal and if you manage the circumstances correctly, that is not very likely. – ohwilleke May 9 at 17:34
  • If you can get someone to listen to you that you tore the fence down because it was on your land then yes it would go your way, but if the fence has been there for years and the cops hear this guy is just tearing it down after years of accepting it, it won't go well for you. – Putvi May 9 at 17:38
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You don't want to do all that. Just go to court about the fence being on your property, but get a printout from the clerk of where your property ends first and ask for a summary judgement.

Politely, tell the judge that the house is going to be sold and explain that you would like the case to be expedited based on that fact.

You can't guarantee that the judge will expedite it, but at least you did your part if you ask.

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    Your answer is substantively inaccurate in terms of how the process would go. – ohwilleke May 9 at 17:18
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    It takes a month to serve someone with process and get an answer. It takes another month to brief a motion for summary judgment. The judge usually doesn't rule the moment a motion is fully briefed. And, usually that are some procedural steps that must be taken before a motion for summary judgment is filed. You can't get a judgment in time to resolve the matter before the house is sold. Also, cases like this are almost never considered emergencies by judges since the land isn't going anywhere. – ohwilleke May 9 at 17:53
  • Yes, sometimes it would take to long, but some judges would understand. – Putvi May 9 at 17:54
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    It doesn't matter if the judge understands, the process has a minimum amount of time to run its course that can't be skipped for a determination on the merits. A TRO isn't appropriate either for reasons mentioned in my answer. – ohwilleke May 9 at 17:55
  • Maybe not in large areas, but judges expedite cases at times when it is needed. – Putvi May 9 at 17:56

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