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Fence Question / Legal Advice

My father's neighbor is putting in a hot tub, and therefore needs to install a fence. There are several maple trees right on the common lot line, and the neighbor wants to keep the trees for shade in his back yard. The trees are 'mostly' on the neighbors property.

The neighbor wants to put the fence about 6" onto my fathers property. My father has a very large lot, close to an acre, it really makes zero difference to my father. The neighbor does not have a large lot, it's a large new home on a lot that was recently subdivided. The fence location is a lot more important to him.

My position is that the neighbor should a) build the fence on his property (likely 12" from the lot line) or b) thin the trees out and build the fence on the lot line, as the local by-law allows.

My father thinks it is no big deal, he's thinking he should let the guy put the fence wherever is easiest. I am the likely next resident of his house, I really don't want the fence on 'my property', but I am not sure why, or what the issues could be down the road.

Anyone see a long term issue with allowing the fence to be built on 'our' property?

Baby poo brown is not an option.
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Old 08-14-2017, 12:46 PM
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Your father could sell him a strip of land along the border of the lots. Is that an option? If he allows the fence to be built on his side of the property line, he is giving the other guy the land.
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Old 08-14-2017, 12:59 PM
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Neighbor is the one that wants a hot tub, so he's the one who has to deal with it.
Your dad needs to protect his property, because if the fence ends up on his property
10 years down the line they will argue about who's land it is on the other side of that fence.

Whatever he does, make sure there is a clear contract. That details who's fence it is , who will maintain it, and on who's land it is .
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Old 08-14-2017, 01:09 PM
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Quote:
Originally Posted by 1990C4S View Post
....

Anyone see a long term issue with allowing the fence to be built on 'our' property?

.....
No good deed goes unpunished . Either the neighbor keeps the fence on his side of the line, or your dad sells him the strip of land imo.

Unless the hot tub will be full of half nekkid young ladies....then NO FENCE!!!
Old 08-14-2017, 01:14 PM
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Fence should be on owner's property - not the neighbors.

BTW...I personally would NEVER ask a neighbor if I could put my fence on their property. The nerve of some people.....
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Old 08-14-2017, 01:20 PM
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You could also consider an easement or a lease. I'm not sure about the "adverse possession" laws in your state, but everything on the neighbors side of the fence could become his after 10 years or so.
Old 08-14-2017, 01:30 PM
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I misread the OP....thought we were talking feet....not 6 inches....I changed my mind .
I would allow a minor encroachment ....
But the neighbor would agree "in writing" that he does NOT own the fence, nor the 6" strip of land, if the neighbor doesn't agree...then the fence stays on his side of the line.
Old 08-14-2017, 01:31 PM
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Quote:
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I misread the OP....thought we were talking feet....not 6 inches....I changed my mind .
I would allow a minor encroachment ....
But the neighbor would agree "in writing" that he does NOT own the fence, nor the 6" strip of land, if the neighbor doesn't agree...then the fence stays on his side of the line.
This^^, if your father chooses to allow the encroachment.

The neighbor cannot claim a prescriptive easement or ownership by adverse possession if he has permission by the property owner to build the fence and use the property. "In writing" is a must. A written, notarized agreement that the fence will be built by the neighbor, on your father's property, with full knowledge and permission of your father will prevent a permanent claim.

A lease of the land will give the neighbor certain rights that you, as the next owner, may not like, but that will depend on the language of the lease.

Whatever your father decides, if he allows the fence on his property he should get everything in writing and notarized.

Personally, I agree with those who would not allow a neighbor to build on one's property--even 6".
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Old 08-14-2017, 01:52 PM
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I guess I should have added, my father does not want to involve a lawyer, but my position is he needs a lawyer and the neighbor should cover the cost.

The downside of owning the fence is that now my father may have to maintain it, no?

I am thinking he should rent the property, for $1 per year, and a ten year term. But the neighbor pays any costs by dad incurs.

And just to be clear, we are talking about a fence behind a row of cedar trees, and behind a compost pile at the back corner of a large lot.
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Old 08-14-2017, 02:14 PM
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The easiest is to not allow it. That's what I would do. Have the guy do whatever is necessary to build the fence on his own side of the property line.

If he's going to allow it, there needs to be some kind of written (and likely recorded) easement, lease, etc.

Otherwise your dad will forget about it, and it will be a hassle when later down the road he or his heirs decide to sell (or possibly even refinance) the property.

A survey will be done, and it will cause problems.

Also, likely some day the neighbor will lay claim to the land by adverse possession. Which would also cause problems.

In other words, just having the guy build his fence on his own side of the lot line solves a lot of problems.
Old 08-14-2017, 02:21 PM
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i wouldnt do it.

all fine and good until the day it isnt.
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Old 08-14-2017, 03:05 PM
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Everywhere I've been if you build a fence on a property line you need a permit.
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Old 08-14-2017, 04:02 PM
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$1 a year lease for the use of the land would solve the whole problem. Cutting down trees over a few square feet of land is ridiculous.
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Old 08-14-2017, 04:52 PM
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This is an easy issue to solve. It's pretty routine. The solution is to enter into a license for the neighbor to use the property, either for a defined term or at the pleasure of the owner. You file it with the county recorder's office and you're good to go. You can probably download a copy of a sample license off the internet. You don't have to charge for it. You can grant a license for a dollar or no consideration.

An easement isn't the right device to use since it creates a permanent right. But there isn't an adverse possession issue if the owner gives permission to use the property. Adverse possession only applies when the possessor doesn't have permission of the owner. Adverse possession requires open, notorious and adverse possession of the property for the required length of time. But allowing the neighbor to build the fence with no paperwork could cause confusion in future years.

There's no downside if the land has no value to you but is valuable to the neighbor. Just do a license if he doesn't want to buy the extra few inches of land, or just sell it to him. Karma is good. Put a little in the karma bank and be a good neighbor.

Leasing for a dollar a year is a good option too. The reason I suggested a license is because it is an even lower level of ownership rights than a lease. But a lease could work. It can be recorded with the county too in order to prevent future misunderstandings.

And yes, cutting down trees over a few square feet of land is ridiculous.
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Old 08-14-2017, 05:50 PM
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The trees on the property line should be included as "natural monuments" to the boundary line and the fence should be built completely on the hot tub owners property. Anything else is asking for problems from here on out.

Sincerely,

A. Professional Land Surveyor
Old 08-14-2017, 05:58 PM
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Make him pay you a once a year fee.

Something at least $50....$100 even better.

Then donate it every year to the local animal shelter - a no-kill shelter.

Karma is good. Put a little in the karma bank and be a good human.
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Old 08-14-2017, 06:04 PM
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No, No, No.

When he sells property, the fence will be on survey, and need to be moved. No-one buying your dad's property will want to close until it is cleared up. Better to not allow it now.
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Old 08-14-2017, 06:07 PM
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I would let my dad decide as long as it is his house. He needs to live there with the neighbor. You can deal with it when it is your house. You know what they say about gifted horses ....

My dad sometimes wants input on similar decisions- I always tell him to do what he wants now and not worry about me / later.

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Old 08-14-2017, 06:40 PM
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Quote:
Originally Posted by SCadaddle View Post
The trees on the property line should be included as "natural monuments" to the boundary line and the fence should be built completely on the hot tub owners property. Anything else is asking for problems from here on out.

Sincerely,

A. Professional Land Surveyor
^ this

You are in Ontario, you can't sell him a foot of land without a survey, lawyer and township approval. Same with a lease.

Is it rural? If it is a fence isn't legally required, tell the neighbor to plant more cedars if he's worried about privacy.

I'd say no.
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Old 08-14-2017, 07:02 PM
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Then just transfer the extra six inches to the neighbor and be done with it. That solves all the concerns everyone raised. It has no value to the father but it does to the neighbor. Who cares? Let it go. Leases and licenses and easements don't require township approval.
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Old 08-14-2017, 07:14 PM
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