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Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 102523
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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I am selling my house and my HOA is indicating that my backyard

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I am selling my house and my HOA is indicating that my backyard fence is outside of my property line by 11 feet on one side and 5 on the other. It was approved by the HOA to attach to my neighbors fence (which was unknowingly 5 feet outside his property line). To sell the house, they want me to move it. However, the space behind it is unusable as open space. It is a strip of about 20 feet which is white pine tree lined and brush. On the other side of the trees is the HOA pathway. The fence has been there for about 12 years. Do i have any rights as an easement since the encroachment is de minimus?
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation. Can you please tell me:

1) Who wants you to move it - the HOA or the potential buyer?
2) Have you ever spoken with your neighbor on whose property this is located as to his feeling on the matter? Do they mind? Will they voluntarily give you permission in writing?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 4 years ago.

The HOA is requesting it. I cannot settle until i get a letter of compliance from them.

Not following the question on the neighbor. They are very agreeable to anything, but they will not have to move theirs unless their property changes hands also. If i move my fence, it will not connect seemlessly with his and will not look very good.


I see, thank you. I just need a bit more clarification.

(1) Does your HOA have an issue with your fence going out of your property's boundary, and, (2) into whose property does the fence go into - your neighbors or HOA's common property?
Customer: replied 4 years ago.

The fence was approved as a property line fence. There were no markers and the fence installers installed it on the same geometric lines as the neighbors using the plat i provided to them. The fence is outside the property line onto the HOA land, which is unusable -- it's about 20 feet of trees and brush and then the paved pathway.

Thank you. Apologies in advance for the momentary wait as I am writing out the answer.
Customer: replied 4 years ago.

no problem


Thank you, XXXXX XXXXX have told me what I had needed to know.

Do i have any rights as an easement since the encroachment is de minimus?

Not based on the fact that it is "de minimus." However, you may have an argument on other grounds.

An easement can be on the following grounds:

expressed - given by consent
implied - implied by consent
necessity - no other way for ingress/egress
prescription - by prolonged use without permission

Here, you may have an argument by IMPLIED EASEMENT. "An implied easement is based on the presumed intention of the parties at the time of the grant or reservation as disclosed from the surrounding circumstances rather than on the language of the deed," and that, "as a result, courts often refer to extraneous factors to ascertain the intention of the parties." Kobrine v. Metzger, 846 A. 2d 403 - Md: Court of Appeals 2004 quoting Koch v. Strathmeyer, 357 Md. 193, 198, 742 A.2d 946, 948 (1999); Calvert Joint v. Snider, 373 Md. 18, 39, 816 A.2d 854, 866 (2003).

You may also possibly have an argument via ESTOPPEL. "Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse and who on his part acquires some corresponding right, either of property, of contract, or of remedy." 3 J. Pomeroy, Equity Jurisprudence, § 804 (5th ed. 1941), quoted in Leonard v. Sav-A-Stop Services, 289 Md. 204, 211, 424 A.2d 336, 339 (1981). Estoppel is the legal version of "it is only fair" in other words.

The issue here is that while you may have an argument, it does not mean that the HOA will automatically agree with you. If the HOA rejects your argument (and it may), you may have no choice but to go to Court to force the issue under Quiet Title action, which may be time-consuming. You may wish to send a letter via an attorney, demanding a release or else you will file suit. Hopefully, they will acquiesce, fearing expensive and drawn-out litigation. While the letter can be sent yourself, an attorney's letter carries more 'gravitas.' May I recommend the Maryland Bar referral program - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.

Best of luck.

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Customer: replied 4 years ago.

okay, thank you. XXXXX has known of the encroachment for 3 years when they last surveyed however they have never notified me of the violaton. Because they have known and have not taken any action, do i have any other rights, or easement of enjoyment?


Thank you for your follow up.

Because they have known and have not taken any action, do i have any other rights, or easement of enjoyment?

No - the two arguments above (implied easement and/or estoppel) are your best bet, arguably, in this case.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
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