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CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10244
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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I recently purchased a new construction home and had a

Customer Question

I recently purchased a new construction home and had a provision in the contract for a fence to be built to completely enclose the property. When we went to closing, the fence was built (enclosing our property) but was actually built into the neighbor's fence (so, only the left and the back fence potions were new material, the right side was the neighbor's fence), which was a breach of contract. So, we went to closing with the verbal agreement that it would be fixed after everything was signed.
About two weeks later (approximately a month ago), the builder contacted the neighbor and asked if we could remove their dilapidated fence and put our new one in its place. The neighbor verbally okayed it, so the builder removed their fence and put ours up.
A week after that, the neighbor came over to our home and told us that they had a survey done and our fence was over their property line. We contacted our builder, but he's been difficult to get in touch with. He finally came out, met with the neighbor, and agreed that the survey showed he was in the wrong. But, nothing has been done. Our neighbor recently threatened us with a lawsuit if the fence issue wasn't corrected.
So, ultimately, I'm wondering who would be liable. Are my husband and I liable because it's our property or is the builder liable because the fence was part of the original purchase agreement and contract we signed? In other words, we didn't have a contractor come in after the fact and put it in place. Does the neighbor have any recourse against us?
Any help you could give me would be greatly appreciated.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

Thank you for using our forum. My name is ***** ***** I hope to assist you today.

I am sorry to learn of this situation.

Yes, your neighbor has a cause of action against you - the claim is "quiet title" - which means they are establishing their property boundary against your adverse claim (the fence line that currently shows your property is encroaching on their property).

However, you can be more proactive and aggressive with your builder (and include the neighbor on your correspndence/threats in an effort to stall any potential litigation they may bring).

Start by sending another written demand on the builder that they come out and rebuild the fence in a workmanlike manner in the proper location. Give them a deadline to do so (10 days should be sufficient for a builder to rebuild a fence with sufficient resources).

If they fail to do so, you can sue them in small claims court (you can sue the builder directly for "breach of contract" (both written contract and equitable claims) - small claims is relatively informal so the precise format of your complaint is not going to be scrutinized as it would in general civil court.