Profile picture for MERONCAPE

Who pays for survey I need to have done to prove neighbor is encroaching?

I am 90% sure this neighbor is encroaching - he has started clearing for construction of fence and landscaping. If I have a survey and I am right, can I force him to pay?
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May 11 2011 - Centerville
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Force him to pay?  Only legal counsel can answer that and provide legal advice.  But, below are my two cents.  Well, with the devalued dollar: 

Surveys are highly recommended before property improvements are made.  With what you've said, it does not sound as if your neighbors followed this piece of wisdom. 

Now is the time to order the survey.  It will be a lot easier for your neighbors to halt their project, or relocate the planned fencing/landscaping, if a discrepancy is found.  Also, remember they may be your neighbor for years to come.  Handling this with care and tact will make the process smoother for all involved.

Be sure to hire a reputable, skilled surveyor.  I've worked with a client that had two surveys with wildly different boundaries.  One showed an encroachment (recent), the other didn't (when purchased).  The fact that the most recent survey shows their property on the neighbors AND the neighbor is not agreeable to ANY offer, it has negatively impacted my client's sale.
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May 11 2011
I know someone who was worried about the same thing. They felt their neighbor was encroaching on their property.

They hired a surveyor which are very expensive for a good quality one and opened a can of worms. 

Not only did they find out the neighbor wasn't on their property but they lost a 1/2 acre on their property and had to move their barn. 

Be careful it may come back and bite you. 
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May 23 2011
Property owners who make alterations without the benefit of a boundary survey are typically disinclined to share in the cost of a survey with a concerned neighbor, but it's still worth a try.

I recommend you talk to your title officer and the local county surveyor (typically in the Public Works department) and ask as to whether the surveys in the immediate vicinity are generally consistent with one another.  Some locales are pretty uniform.  Others are fraught with problems.

Only after having consulted with a disinterested, but informed, third party can you get some sense of the likely reliability of a boundary survey in your case.

Get at least three quotes.  The surveyor who has performed work closest to your property will have the benefit of prior measurements from which to work to keep the costs more or less reasonable.

In many states, doing nothing in such a situation is, over the long haul, essentially forfeiting property due to the laws of adverse possession.

One cannot force anything out of one's neighbor short of litigation (or other means not mentionable).  In my view, that is not the issue.  The goal of a boundary survey is to identify and help you preserve your real property--or what's left of it.
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May 23 2011
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Thank you to everyone. All very helpful suggestions.
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May 12 2011
Profile picture for sunnyview
True, those old descriptions can make life interesting. Just where did that big rock roll off to anyway? lol I've lived in a handful of different states, but have found that many modern surveyors do mark the corners of the lot with rebar. Not all though. It is worth looking for corner markers before paying for a survey because you just never know. 

I have also had good luck calling local surveyors and asking if they have an old survey on file by address. Sometimes you get lucky and can buy a copy from them for much less than doing a brand new survey.
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May 12 2011
Ah yes, the old (OLD!) metes and bounds property descriptions. That was one of the subjects we studied in real estate school but thankfully that description is rare in Minnesota.
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May 12 2011
Profile picture for shapiroamg
Sunnyview, are you in MA? I've never heard of these stakes in the ground for property boundaries. In MA we have some pretty crazy property diescriptions. "big rokc over there" stone wall from 1600" ect
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May 12 2011
Profile picture for sunnyview
I would forestall the survey and talk to your neighbor first instead. Tell them about your concerns and see what they say. If they are nice, smart neighbors, they will not want to spend money build unless they know where the property line is. You can offer to pay for half and tell them that you want to be a good neighbor

Feel them out and if they are not interested or are nasty, then I would send them a certified letter requesting that they to stop the demolition pending the outcome of the survey. You will have to pay for it, but it is better than bad blood.

You also may be able to take a middle road and have the surveyor use a metal detector to see if they can locate the metal stakes at the corner of your property. Many properties have them and they may help your neighbor recognize the boundary without the expense of a full survey. Try to stay calm and work it out. Bad neighbors are not fun so it is better to avoid hard feelings if you can.
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May 11 2011
Unfortunately, you have the "burden of proof" to show your neighbor he is encroaching upon your property.

Therefore, you need to pay for the survey to settle any and all questions.  I You need to consult an attorney about getting reimbursed.


Kellee and Debbee Heldoorn

The Heldoorn Team
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May 11 2011

Another Fence Dispute

 

This reminds me of a similar situation which I'll take the time to tell you about.

 

The old fence fell down and Arborvitae shrubs were purchased in order to install a nice friendly green barrier. The shrubs were delivered. That weekend the neighbor started to build a fence which would encroach on property boundaries.

 

Most towns require a "fence permit" to install a fence, so the encroacher was asked to stop until a survey could be done. The encroacher didn't want the friendly green shrub barrier, so it was agreed to let him install a fence instead. He was asked to split the cost of the survey and have concrete bounds installed to prevent any future dispute. He agreed to split the cost. The land was surveyed and bounds were installed and the surveyor's bill was paid by the concerned property owner. The fence he started had to be moved back onto his property after he realized that he was encroaching. The shrubs could not be installed against the fence. He never took out a fence permit and he never offered to pay his share as agreed. The concerned property owner benefited because he had peace of mind that the fence no longer would encroach on his land. The concerned property owner never made an issue, because they had been neighbors for years.

 

You're not married to your neighbors, but sometimes you need to just get along and enjoy your property. Ask him to pay for half of the survey, but don't be surprised if he refuses to pony up his share. Don't threaten to call the town about a permit and try to work it out between the both of you. It is certainly better that way.

 

The moral of the story is you have to live with your neighbors and sometimes you have to make concessions to get along and keep peace, otherwise you'll end up like the Hatfield and McCoy family in dispute for generations. Major wars have started over land disputes. The last thing you need is to get in an argument and maybe even hand to hand combat. You'll both be in trouble with the law and restrained from enjoying peace and quiet enjoyment on your own property.

Work it out. Both of you will be glad you did.

 

I have been in real estate for many years, involved in 1,000s of transactions in one way or another and I have lots of stories to tell about my experiences. Just ask and I'll give you "Sound Advice" from experience.

Phil Austin

Best Choice Real Estate Services

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May 11 2011
Btw, Mary, this was a very good question.  Thanks for asking!
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May 11 2011
Profile picture for Broundog

If it is a big deal to you, first check with your city and planning department, they should either help you or get you in the right direction..All the best

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May 11 2011
You would be responsible for the cost of the survey.

If it was determined that he was encroaching on your land, he might be liable for returning your land to its original condition and possibly covering the cost of the survey. But only an attorney could give you the definitive answer.
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May 11 2011
 
Related Questions
Who pays for survey I need to have done to prove neighbor is encroaching?
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