Being sued for apparent encroachment

[John Carson]

What is the name of your state?What is the name of your state? IN

We moved in to our house out in the country three years ago. Recently our
neighbors claimed that some of our fencing, part of our garden and a shed are two to three feet on their property. They located some of the survey markers and those markers seem to indicate some degree of encroachment. All these encroaching things were put there by the previous owners of our home. We have never modified or added to any of these things while living here. Our neighbors now want us to move the shed which is pretty much immovable, cement foundation bolted down and so forth. They also want us to move the fence and various things in the garden. They are threatening to sue us if we do not. We have told them that all those things that they think are encroaching on their property are actually their property and they are responsible for moving or disposing of them, not us, we did not put them there. Our neighbors moved into their house two years before us and they bought their property, as is, with all those encroaching items already on it. I have to say that there is some question as to what the actual boundary lines are as not all of the survey markers have been located to properly determine the true boundary lines and also the surveyor who did the last survey in 1995 told us that he was never paid for any of his work. What can our neighbors sue us for as we really have done nothing, we just moved in three years ago and lived ouyr lives, we did nothing with any of the apparent encroaching items. The only thing that has value is the shed which we estimate to be worth about $5,000, we have told our neighbors to get a chain saw and cut the part off they think is encroaching. We have also told our neighboprs to go ahead and do what they want with all the other encroaching items so they can put up their fence. We also told them that once they finish putting up all of their fence, we will proceed to have another survey done to make sure their fence is not on our property and if it is we will counter sue to have them reimburse us for the damages they caused and to have them remove their fence. After talking with the surveyor from 10 years ago, it seems there is a good chance there were some problems with the survey other than them not being paid for it. The property is very irregular in shape and it seems there was significant room for error. The surveyor referred to the survey as being done in a "haphazard" way which we feel is a peculiar way to describe doing a survey. Anyway, if anyone out there has any advice on what to do, we sure would appreciate it. Thanks.

 

[BelizeBreeze]

get a new survey and then decide what to do.

 

[John Carson]

I agree, the question is whether we do the survey now or after they finish putting up their fence. Our attorney wants us to do it now. Also, what can they sue us for right now, all the encroaching items except the shed legally belong to them. Are they going to sue us because we refuse to remove their belongings from their property? The only sticking point is the shed which appears to be 90% on our property and 10% on theirs. We told them to cut the part off they think is theirs but be careful not to cut too much because we will be doing a new survey afterwards. If this thing went to court, could a judge make us remove these things from their property even if we never put them there and they do not legally belong to us?

 

[1christian]

I would have a survey done now and not even think about anything else until you see what the survey shows. That's just my 0.02.

 

[divgradcurl]

We told them to cut the part off they think is theirs but be careful not to cut too much because we will be doing a new survey afterwards.

You are kidding about this, right? If you let them damage your property, THEN do a survey and sue them for damages, the judge will laugh you right out of court -- you have a duty to mitigate your damages, which means you can't let the damages build up and THEN take action. If you wait to get your survey until after the damage is done, you might well find yourself paying for the damages yourself.

If this thing went to court, could a judge make us remove these things from their property even if we never put them there and they do not legally belong to us?

If the shed doesn't belong to you, then how could you be "damaged" if the neighbor takes a chainsaw to it? You can't have it both ways -- it's either yours, and therefore your responsibility to move, and you could potentially be reimbursed for damages if the neighbor damages it, or it's not yours, and therefore you cannot be damaged if the neighbor moves it or destroys it.

But, reality is, if it's 90% on your property, it's ALL yours, and 10% of YOUR shed is potentially trespassing on your neighbor's property.

You may not have put them there, but you accepted them when you bought the property, unless your contract explicitly notes that you didn't accept them (which is probably not even possible, but you never know).

 

[John Carson]

Divgradcurl, thanks for your comments. They are well taken. But, do we really have such a duty to mitigate damages to our property where we have to spend our hard earned money to ensure that our neighbors are putting their fence in the right place? I would think that would be their duty! There are key survey markers that have not been found up to this point, very dense woods in our back yards prevents us from finding them so our neighbor is relying on these "haphazard" witness corners to place their fence. Even the surveyor from ten years ago has stated to me privately that to rely on whatever markers one finds in the yard is a mistake and that a new survey should be performed.

No, there was nothing in our sales contract about the shed being 10% on their property, but our neighbors also accepted the shed where it was when they bought their property a few years before us. The real reality, according to property law in our state, is that if 10% of the shed is on their property then that 10% is theirs and they can do what they want with it, destroy or even use it if they want. My point was that if
the neighbors cut off more of the shed than what was theirs they would be financially responsible for illegitimately destroying the whole shed since the part they sliced through with their chain saw belonged to us. Bottom line is that they should be very sure of what they are chainsawing, I know I would be if I was putting a chainsaw to their property.

 

[Warped]

I'm not a lawyer!

No one so far has mentioned the one thing that sticks in my mind and that would be, is there a law in Indiana that requires a current survey before the installation of a new fence or the replacement of an existing fence? I was told that in my state, a current survey is required before any new/replacement fence is installed.

Have you tried approaching the neighbor and asking if they would be willing to split the cost (50/50) of having a survey performed? A new, accurate survey is the most important thing you and the neighbors need at this point.


Another point is that when you bought your property, you bought everything on it. The same goes for your neighbor. I'm not positive but I believe that, like divgradcurl said, other than the shed, anything laying solely on their property belongs to them regardless of who originally placed the item. They had better be prepared to prove that the items lay solely on their property though.

If you end up in a position where you must move the shed, since you are willing to let them destroy the part that they think is on their land then just knock it down and get rid of it. If you want to save it, PM me and I can tell you a reasonably easy way to move it yourself with a little elbow grease. Good luck!

 

[John Carson]

Hi Warped, thanks for your response and sorry for the delay in mine.

If there was a law in my state requiring a current survey, my neighbors could come up with the survey done eight years ago. A survey that could be in error though.

I agree with you that a new survey is what we need. No, I have not approached my neighbor on splitting the cost of a new survey. I already know the answer. Why would they want to help pay for something that may decrease their property size? Also, they feel the current survey is perfectly legitimate. I would split the cost with them though, that is a fair compromise in my opinion.

What happens if something is one fourth on their property and three fourths on mine? Who owns what?

I will let them knock the shed down, then do a survey, then sue them if any part that was knocked down was on my property.

I cannot move the building, it is in a very inaccessible part of my yard and for all practical purposes it is a permanent structure, not made to be moved without damaging it.

 

[Warped]

I'm not a lawyer!

There are a few things I'd like to cover here.

1: In your position, I wouldn't let them do a damned thing until they prove that they own the property in question with a current survey. They are claiming encroachment, I believe that the burden of proof of an encroachment is on them. I could be wrong though.

An 8 year old survey doesn't qualify as "current" to me and I doubt that it would to a judge. If they want to dispute the property line then make them prove beyond a reasonable doubt exactly where the property line lies with a current survey performed by a licensed local surveyor that is less than a year old. Let them know in no uncertain terms that if they disturb or destroy your property and it is later proven that they were in the wrong that you will sue their behinds to kingdom come.

2: If they do prove, with a current survey, that your shed is encroaching on their property, do NOT let them dismantle or demolish the shed! All it will take is one injury and they will likely sue the crap out of you. If you or one of your trustworthy, knowledgeable friends/relatives can't demolish the shed and remove it then pay a contractor to do it for you. It's way cheaper to pay a contractor or trustworthy friend to do it than it will be to pay higher insurance premiums because they dropped the shed on themselves and suffered a permanent injury.