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William B. Esq.
William B. Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 3225
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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In November 2012 my wife and I bought a house in Otis orchards

Resolved Question:

In November 2012 my wife and I bought a house in Otis orchards Washington. Approximately March 2013 the land behind the house sold. After the land sold the new owner had his new land surveyed and contacted me and said that our fence was on his land and he needed it moved. I asked him to send me a copy of the survey by email and he said he would. I still have not received an email from him of any type. According to my neighbor my fence has been there as long as his which is approximately seventeen years. My neighbor said that the ten houses on our side of the land all came from the same piece of land and that the original owner of the land gave each new owner permission to use the land for there fence and gave extra for a drive and easement and the original owner put the steaks in to mark where the fence could go to before the easement began. Since the fence has been there 17 years according to the neighbor, what are my rights and can he force me to move the fence. How much would it cost to have him contact you or give him your number so he will have to contact you? The land he is complaining about according to him is 68 to 136 square feet. The new owner of the bordering land was not clear of the amount and could not show me where the border was and just wanted permission to move the fence. His land size is between 173200 and 216500 square feet.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  William B. Esq. replied 1 year ago.

CalAttorney2 :

Dear Customer, thank you for choosing Just Answer. I would like to assist you with your question today.

CalAttorney2 :

I can provide you with the general law as it would apply to this situation, but I cannot contact you or your neighbor by phone (we are not allowed to act as counsel to either party in these situations and cannot act as mediators or intermediaries). But hopefully a better understanding of your respective rights will be helpful.

CalAttorney2 :

The length of time that the fence has been on the property will likely not be at issue in this matter - usually that is important for claims of "adverse possession" where an owner can take possession of property by simply placing a fence or occupying land of a neighbor without permission. In your case, your other neighbor said that your predecessor had permission to build the fence, thus there was no adverse element to the possession which is absolutely necessary to that type of claim.

CalAttorney2 :

Asking your neighbor for a survey line is a good idea, you cannot have a fence dispute resolved adequately unless and until you have a clear understanding of where the true property line is. If you do not, you are simply moving the fence line based on "best estimates" or claims by the other property owners. A clear survey is necessary.

Customer:

so the new owner of the property can force the fence to be moved?

CalAttorney2 :

The new owner may be permitted to force movement of the fence, but there is also an issue of an easement. Your neighbor said there was an easement for both a road and the fence line. If the easement is recorded on both your deed and your neighbors, the fence can sit on the neighbor's property within the easement.

Customer:

There is not an easment that was recorded everything was a word of mouth agreement.

CalAttorney2 :

If there is no easement, then yes, your neighbor can have the fence moved onto your property.

Customer:

if he puts cows on his land, i do not want to spend the money to rebuild the fence and his cows get on my land what rights do i have.

CalAttorney2 :

If he puts cows on his property he is responsible for fencing them in. If he allows his cows to go onto your property he is responsible for the trespass and the damages. Trespass is treated similar to an intentional tort and the damages can be in excess of the actual damages incurred on your property.

Customer:

the same would apply if my dog causes broblems with his cows?

CalAttorney2 :

Most landowners enter into some form of fenceline agreement - they agree to mutually maintain a fence, each paying for 1/2 of the repair, placing the fence directly on the property line, or acknowledging that although it is on one property more than the other there is no adverse quality to the intrusion, etc.

CalAttorney2 :

If your dog caused problems to his cows while the cows are on your property?

CalAttorney2 :

You are responsible for trespass of your dog onto his property.

Customer:

no if my dog goes onto his property.

CalAttorney2 :

Yes, you would be responsible for the trespass.

Customer:

if my kids go over onto his property and are injured by the cows would i be responsible

CalAttorney2 :

You would be responsible for the trespass. He would be responsible for the "attractive nuisance" meaning that your children's injuries would be his responsibility and you could sue for them. (This type of suit is a little bit complex, but that is the simplified version - the trespass liability is minimal or non-existent in most cases).

Customer:

am i alowed to put a noise repelent to keep the cows away from the house since they smell bad and this is a housing tract and families live here?

Customer:

can i be force to pay for the fence?

CalAttorney2 :

You may, but again the trespass issue comes up. The sound may not intrude on the neighbor's property.

CalAttorney2 :

In most cases, you would be forced to pay for the fence relocation. In this case you may have good grounds to negotiate for at least a split cost of moving the fence. The neighbor purchased the property with the open and obvious fence placement and the demand for relocation is their issue. (if they want it gone, they will have to pay for the entire cost of removal, if they want to run cattle, they will need a fence in any event, they should see the benefit in having a fence somewhere near the boundary line).

CalAttorney2 :

(The trespass issue goes both ways on the cow's smell, they cannot intrude on your home with their smell, the neighbor is responsible for keeping that on his side of the fence - this is true due to the residential nature of your community).

Customer:

if i do not remove the fence and let him remove the fence or leave it and do not put up a fence at all can i be forced to do somthing.

CalAttorney2 :

No.

Customer:

are there any liabilities?

CalAttorney2 :

Only if you allow something to cross onto their property. The liability you face would be allowing something out (the reason you have the fence for liability purposes is keeping things in).

Customer:

so if he moves the fence and croses onto my land he is trespassing and liable?

CalAttorney2 :

That is correct.

CalAttorney2 :

(I would watch carefully if he decides to build a new fence - it creates a horribly complex and expensive mess when the new fence goes in on the wrong spot).

Customer:

if he puts it in the wrong spot and i am not a part of it would he be liable??

CalAttorney2 :

Yes he would, but it would create a dispute over the fence placement and the property boundary with his use of your property due to the extension onto your land.

CalAttorney2 :

There is usually not a problem when everything is agreed upon and documented, but I would advise staying advised as to what is going on and informed as to where things are being placed on your property if they are in fact doing so - this may not be an issue now, but it can create problems when it comes to selling your property.

Customer:

would i have any recorse to the original seller or owner of the land and house before we bought itin november?

CalAttorney2 :

You may (it would be a difficult course of action). Did you have title insurance when you purchased the home?

Customer:

yes

CalAttorney2 :

Your title insurance may allow you a course of recovery for the cost of moving the fence line.

Customer:

if his cows push against the fence onto my side of the property can i kick them of off my side of the property?

CalAttorney2 :

Yes. I would advise against injuring them (I don't know how touchy they are in your area, but cattle prods are usually acceptable in cow country - use your discretion and don't use anything greater than necessary).

Customer:

is there anything i can do to force him to correct the situation since it is tresspassing?

CalAttorney2 :

You can file a small claims lawsuit. Small claims is a fairly straightforward and inexpensive way to assert your rights and get a declaratory judgment in these types of matters (along with a compensatory damages judgment for those damages that have already occurred).

Customer:

something would have to be damaged then,

Customer:

no consideration for stress.

CalAttorney2 :

No - trespass is a strict tort, if his cows have entered your land, trespass has been committed. You are entitled to money damages (even if it is only a $1 "nominal" damages).

Customer:

can we shoot the cow if it enters anyones property?

CalAttorney2 :

No.

Customer:

his land is agricultural land, if all ten houses are against the cows or the smell is offinsive can we force him to correct the situation and if it continues collect damages or force him to get rid of the cows.

CalAttorney2 :

If his land is zoned ag land, it is unlikely you will be able to force him to remove the cattle. This residential/agricultural interface creates these types of situations and there is no easy resolution as the only resolution for the homeowner is to move, and the cattle rancher is to sell off his animals.

Customer:

so there is no way to solve this situation except move?

CalAttorney2 :

Maybe you need to tell me more precisely what the situation is.

CalAttorney2 :

You can solve the fencing situation by telling him you do not intend to move the fence, and if he wants to tear it down he needs to build a new one on his land, even if it is closer to the boundary.

CalAttorney2 :

You can solve the cattle situation by dealing with the trespass - if they come onto your property you can push them back, if he fails to keep them on regularly, you can take him to court in small claims and have a judge force him to.

CalAttorney2 :

The only thing you cannot do is force him to remove his cows from his land.

Customer:

if he does the fence on my property then he hasto move it.

Customer:

and the smell is not an issue in this situation?

CalAttorney2 :

Dear Customer, my apologies, my chat function had a split, I did not see your first post (before the smell issue), can you please repost that (again, my apologies).

Customer:

if he puts the fence on my land he will have to move it and the smell is not an issue at all.

CalAttorney2 :

The smell issue is not actionable due to the Ag zoning. If you were in a strict residential zone with allowances for animals, then yes, you could have a cause of action, but being in a residential area neighboring a straight agricultural property, the smell is not considered actionable.

CalAttorney2 :

If he puts the fence on your land he will have to move it. There is no question about this.

Customer:

what would you sudgest to recoup my losses?

CalAttorney2 :

Which losses specifically?

Customer:

the fence and gate, they came with the house and my time and checking on the web?

CalAttorney2 :

Contact your title company. They may also help you with an accurate survey of the property as well.

Customer:

the fence is a steel fence like at the schools, value about one thousand dollars not counting labor.

Customer:

ok

CalAttorney2 :

If your neighbor is not reasonable about this matter, perhaps your title company will be of assistance (they guarantee the title to the property at the time you buy it, this includes a guarantee of property lines).

William B. Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 3225
Experience: I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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