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15+ Yearold "violation"

Started by KristinP • 7 replies • 1738 views

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KristinP (South Carolina)
Posts: 2
Posted:
Our HOA is saying our back fence is over the property line and needs to be moved. They have no record of anyone even requesting permission for the fence. Our issue is my fiancee bought this house in 2000 and nothing has been said up until now. How are we liable for what the previous owner did or didn't do? Can we do anything about this or is the HOA just the law of the land, no matter how late to the party?
TimB4 (Tennessee)
Posts: 21,059
Posted:
If your fence is on land you don't own, you need to move it or claim adverse possession.

It's your house, you are responsible. Similar to the previous homeowner adding a room without a permit, once the county is aware that there was no permit for the work, as the owner of the property, you are responsible to correct the issue. If you can find the previous owner, you can try to collect any damages from them yourself.

My suggestion is to:

1) Check your own survey from when you purchased and see if the fence was noted as being outside the property line.

2) Ask for a copy of the survey from the Association (or whatever documentation they used to determine the fence was outside the property line)

3) If needed, have a survey done and ask the surveyor that question specifically.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Kristin,

How do they know that? Did they hire a surveyor? Someone with a state license who is authorized by law to make that determination?

Does the HOA own the adjoining property where the encroachment allegedly occurred? If not, then what is their authority for playing survey police?

Regardless of who may have title to the adjoining property (and assuming that an encroachment has occurred), your fiancee may have grounds for seeking title through adverse possession. In my state, if the other side of the fence is not on government property then ten years is all it takes for the property to be claimed by the adverse party. To do so, however, will require a licensed surveyor to establish where the recorded boundaries are as well as the new boundaries created by the fence. This would also require a quiet title action in court.

If the amount of encroachment is a matter of inches, it may be de minimus lex - such a trifling matter that the law has no remedy.

I would start with demanding to see the HOA's proof of encroachment and evidence of their standing in this matter.

LarryB13 (Arizona)
Posts: 4,099
Posted:
Also, initiate a claim with your homeowner's insurance.

BTW, I am assuming that you are in a community of stand-alone homes on deeded property as opposed to some sort of condo regime.

NpS (Pennsylvania)
Posts: 4,216
Posted:
South Carolina:
A person must occupy the property for 10 years to be able to claim ownership by adverse possession. A person may have a title that they believe is valid to the property, but it turns out it isn’t. As long as he or she openly occupies the property for 10 years with this invalid title, then he or she will have adversely possessed the property. This is called adverse possession under “color of title.” -

See more at: http://statelaws.findlaw.com/south-carolina-law/south-carolina-adverse-possession-laws.html#sthash.QvHFOQb2.dpuf
Sikubali jukumu. Read all posts at your own risk.
JeffT2 (Iowa)
Posts: 880
Posted:
Quote:
Posted By TimB4 on 05/20/2015 8:08 PM
If your fence is on land you don't own, you need to move it or claim adverse possession.

It's your house, you are responsible. Similar to the previous homeowner adding a room without a permit, once the county is aware that there was no permit for the work, as the owner of the property, you are responsible to correct the issue. If you can find the previous owner, you can try to collect any damages from them yourself.

My suggestion is to:

1) Check your own survey from when you purchased and see if the fence was noted as being outside the property line.

2) Ask for a copy of the survey from the Association (or whatever documentation they used to determine the fence was outside the property line)

3) If needed, have a survey done and ask the surveyor that question specifically.

...trying to understand this.

The previous owner installed a fence on someone else's property. The current owner did not install the fence, and the fence is not on the current owner's property.

The current owner can truly say that he does not own the fence since it is not on his land (assuming the survey shows that).

The current owner might want to salvage the fence and move it onto his property, but I don't see the obligation to do so.

If the owner has also has fence on his property, then the owner can disconnect his fence, and leave the fence on the other property.

What is wrong with this view?
KristinP (South Carolina)
Posts: 2
Posted:
They are going off their own "walk by" visual survey, and a plat map picked up from the county. The property they say it's on is part of the community. Behind our fence is about 6 feet of dirt and plants, a creek then another 6 feet or so of the same to the other houses backyard fences. So we need to now get an official surveyor? The house was a VA Foreclosure so not sure how we would go after the bank who was the last legal owner in this one.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By KristinP on 05/22/2015 11:10 AM
They are going off their own "walk by" visual survey, and a plat map picked up from the county. The property they say it's on is part of the community. Behind our fence is about 6 feet of dirt and plants, a creek then another 6 feet or so of the same to the other houses backyard fences. So we need to now get an official surveyor? The house was a VA Foreclosure so not sure how we would go after the bank who was the last legal owner in this one.

No. Let them pay for a surveyor if they wish. Their visual walk-by would have zero evidentiary value in court.

Regardless of what the association now claims and regardless of where the property lines used to be, it appears that you own the property enclosed by the fence and you have no legal obligation to tear down or move your fence or accede to any other demands of the association. I am basing this on SC Code Section 15-67-10 et seq.

BTW, you have no issue with the bank, any former owners, or the VA. The land inside the fence is yours.

Since the association is challenging your title to the land you might want to file a claim under your title insurance policy. Otherwise, I would suggest at the very least consulting with an attorney.

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