My neighbor recently put up a privacy fence and I think that it encroaches onto my property. How can I find out if it does, and what can I do about it?
The way property division lines are determined is by the use of a surveyor. A surveyor finds information in the field and uses historical property information such as public highway records and plans at the registry of deeds in order to determine the exact boundary of a property. Very often in the city people have put up fences and walls years and years ago and the people who buy the properties assume that is where the boundaries are but that is not necessarily so. The only way you can be certain as to where the boundaries are is to have a surveyor locate the corners of the property. The surveyor can determine whether or not the fence encroaches onto your property. If it does encroach the cases are quite clear that the courts will issue an injunction mandating that the neighbor move the fence, even if the encroachment is minimal. The courts have been quite consistent in requiring the removal of an encroachment even if it was done innocently. The only exception to that rule would be if the encroachment is de minimus and the expense of removal is exceedingly expensive in relationship to the encroachment. The example given is that a 20 story apartment building is built and on the upper floors of the building there is an encroachment into the airspace by a couple of inches. Under those circumstances a court may not order an injunction to remove the encroachment because the damage that is done to the abutter is so minimal and the cost of removing the encroachment is so expensive. However the cost of a surveyor is not insubstantial and of course legal expenses, no matter how simple the case may be and no matter how certain you may think the outcome is, are never inexpensive. However if you do nothing and the fence stays there for 20 years then your neighbor will own the property on which the fence stands by adverse possession.
If you have questions about this or any other legal matter, please contact Tom Bennett at (617) 531-6574 or tvb@barronstad.com.
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