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Barrister
Barrister, Lawyer
Category: Real Estate Law
Satisfied Customers: 35822
Experience:  16 years real estate, Realtor. Landlord 26 years
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I recently moved into a home. The property line between my

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I recently moved into a home. The property line between my yard and one of my neighbor's yard has a four foot chain link fence on it. It was built on the property line (according to my neighbor) some time ago by a prior owner of my house. There are some pretty old trees in my yard near the fence. The roots and the trees have pushed the fence into his yard, and some of the tree/roots have expanded to be directly on the property line. I would like to take down the fence that is there now and replace it with a taller chain link fence (I foster dogs as well as have some of my own, and I want to make sure they don't hop the fence). Eventually the trees will destroy this fence completely. I would like to work with the neighbor to get the newer fence put up at my cost. I can't afford a wood privacy fence which he was basically saying he wanted (with me paying for everything). The trees are huge, so cutting them would be far too costly. What are my options legally regarding removing the fence and putting a new one up. Would it be considered repair and maintenance and I wouldn't need his approval? If I do need his approval how do we handle the property line with the trees? Because of the trees, the fence would need to either be moved in a few feet my way, or a half a foot his way. If I pay for the entire fence, is it my fence 100% and I am responsible for repair and maintenance? If I put the fence on my side of the trees, does that mean I am actually giving him part of my property, or does the property line determine that alone?

Thanks!
Hello and welcome! My name is XXXXX XXXXX I will try my level best to help with your situation or get you to someone who can.
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What are my options legally regarding removing the fence and putting a new one up. Would it be considered repair and maintenance and I wouldn't need his approval? If I do need his approval how do we handle the property line with the trees? Because of the trees, the fence would need to either be moved in a few feet my way, or a half a foot his way. If I pay for the entire fence, is it my fence 100% and I am responsible for repair and maintenance? If I put the fence on my side of the trees, does that mean I am actually giving him part of my property, or does the property line determine that alone?
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Ok, let me see if I can answer your questions...
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Absent a requirement in the deed, a local ordinance, or any homeowner's association Bylaws or CCRs, a shared fence is an optional improvement to the property. As such, neither you nor your neighbor has an obligation to repair or replace the fence.
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So if the neighbor won't agree to split the cost of the fence you want to put up, you would have to do so at your own cost. If you put the fence back on the property line you would have to get his approval to remove the old one since it is jointly owned by you if it is exactly on the property line. This might not be the case as fences are typically a few inches or so to one side or the other of the property line so it might be worthwhile to have a surveyor out to confirm the property line.
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But if you move the fence to your property, it is yours to do what you want to with it and the cost is entirely yours. You can simply leave the old fence there if the neighbor won't allow you to remove it. As for losing your property, you could eventually do so if he uses and maintains that property for 10 years under TX adverse possession laws. The way to defeat this claim would be to give him actual permission to use the land in writing. Since he would be a licensee, not a trespasser, he couldn't ever claim the land through adverse possession.
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Thanks
Barrister
Customer: replied 3 years ago.


The fence is falling into his side of the yard, at what point, if any, would we be able to remove the fence simply because of the disrepair?

Well if it truly straddles the property line, then it is half his fence, and half yours. So even if it is in complete disrepair, it is still half owned by the neighbor and you would still have to have his permission to take it down since it is personal property.
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So to answer your question directly, you couldn't remove it no matter what shape it was in without his permission.
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Barrister
Barrister and 4 other Real Estate Law Specialists are ready to help you
Customer: replied 3 years ago.


Sorry, to beat dead horse, I just want to make sure I understand. Even if the fence violates a city ordinance, we would still need their permission?


 


Dallas City Ordinance states that:


 


A fence and screening wall must be structurally sound. It must be capable of supporting its own weight. It must be properly maintained and not out of vertical alignment more than one foot from the vertical. Chapter 27-11 (b)(10)

Even if the fence violates a city ordinance, we would still need their permission?
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That kind of changes things a bit because you could call the code enforcement office on yourself and the neighbor and then you would have legal grounds to remove it since it would be violating the city ordinance to allow it to remain.
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If it is in violation then that can trump the personal property rights of the owners and force them to either remove it or repair it and split the cost. Since you would be removing it to be in compliance with the law, you would then have grounds to sue the neighbor for half the cost or removing it if he wouldn't voluntarily contribute.
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Thanks
Barrister
Customer: replied 3 years ago.


Great, thanks!

You are very welcome. Glad I could help.
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Thanks
Barrister