Homeowner selling home but fence is on neighbors property

Bill,

This is an issue between two owners. The association should not be involved. Even though the association approved the fence, it was the fence owner's responsibility to install it correctly. The abutting owner also had the responsibility to object at a meaningful time if he believed the fence was encroaching on his property.

If the owner who alleges that the fence is encroaching wishes to, he may retain a surveyor and an attorney to try to persuade the other party to move the fence. Or they can come to some other agreement regarding moving the fence.

Complicating this is whether enough time has passed for the owner of the fence to claim ownership of the 12-inch swath under a claim of adverse possession.

The owner who commissioned the survey seems to have acquiesced to the encroachment. He was foolish to do nothing when he learned of the encroachment.

If the party who owns the fence will not agree to move it then there is little the other owner can do without going to court, where he is far from guaranteed a victory.

My association is made up of large parcels, 36-acres and up. While all parcels were surveyed and marked before sale, the terrain can make it difficult to eyeball a property line. I know of three situations where one owner encroached on another's property. One of those is where one owner put his mobile home smack-dab on the property line; half on his property and half on the other. Our properties have 30-foot easements around the perimeters, so not only is that home sitting on two parcels, it is also on top of an easement. In theory, any member of the public could lawfully drive a bulldozer through that home. In the second situation, the owner built a cabin on his property but on the easement. His septic tank and leach field is on his neighbor's property.

The third one is a dandy. The property sits at the edge of our development. The owner built a home that crossed the property line. He purchased the neighboring parcel and had the two legally joined together. But part of his property is in our association and part is in another. I have seen a photo of the home and he would have been better off just tearing it down; it was not worth the trouble to join two parcels in two different developments.

I agree. It is not a responsibility of the HOA. Let the neighbors duke it out.

1-Good advice above. Unless the HOA can be credibly shown like staking some survey boundary for the alleged trespassing fence, this is a private matter for buyer's lawyer and/or title insurer to withhold purchase funds/ refuse to certify for title insurance / get compliance order to resolve.

NORTH Carolina - but maybe not Bill B7s SOUTH Carolina - may have a Torrens type title guarantee registry system that precludes acquiring title by adverse possession (squatting) unless proven by squatter claimant to have been perfected before date of conversion to Torrens. Private fences on private property do not change boundary lines but rather open, notorious treatment as if it has.

2 - Should HOAs otherwise get involved in keeping the peace in private boundary wars ? What possibly could happen if Good Samaritans merely help to broker settlement ? A cautionary tale from cottage country up here :

“SETTLEMENT REMORSE” ? NOT a Joan Crawford movie.

66 year old ATTEMPTED KNIFE MURDERESS /cottager again fails at Court of Appeal to carve up 2006 settlement with local owners association. (Why can’t a lady change her mind ?) Court records show:

. . . In 2007 within weeks of last previous judicial refusals to let her undo the settlement, she crept into the cottage of the sleeping Owners Association President . ... Then she JAMMED A BUTCHER KNIFE twice into his chest (but not fatally).

He fled with her in pursuit. The boundary dispute must have now paled in significance.

Police located her on the front step of her home with her daughter who, seeing the blood, was asking her mother what she had done ?

In 2008 the Court of Appeal panel next ruefully did not increase her sentence but lamented that “for reasons of general deterrence, a penitentiary sentence ought to have been imposed” on the geriatric first offender.

But do old habits die hard ? A 2014 judgment refuses her latest but self-represented attempt to undo the 2006 settlement Will the cycle resume? Wouldn’t mediation have been cheaper for the property dispute ?)

Postscript ; the idyllic cottage country phone book shows current numbers for both the surviving still President and a surname identical to the uncommon one of the attempted murderess; she has resumed dangerous litigating phase . .

Peciukaitis v. Forest Harbour Ratepayers Incorporated, 2014 ONCA 200 issued March 17 2014 http://canlii.ca/t/g661g

Tell the homeowner to trash segments of the fence. I'm sure the seller would want to get rid of such eyesores ASAP to improve appeal.

Bill B17 (South Carolina): " . . . Our resident is asking the Board of Directors for any input or guidance we may be able to offer in this situation. . . . Can anyone offer comments on:

1. What are the implications if the home is sold with the fence on the neighbors property?
2. What recourse does the resident have to force the neighbor to move the fence?
3. Any other comments from anyone versed in this area or who have experienced this type situation in the past."

1 - If the HOA itself cannot be proven to have provided survey input etc why start now providing legal advice to either or both neighbours ? That is unless your Board has the skillsets and is insured & licensed comparably to the state bar members ?

2 - From an a.d.r. standpoint, off the record can someone quietly suggest to both neighbours that they supply the labour and relocate the fence onto the lawful, monumented boundary line ( or split the cost ).

As the victim of fence trespass like above (if true) I would want to avoid a boundary war with my future neighbour. As a jerk fence-trespasser I would want to avoid my sale complicated or killed by a competent lawyer or realtor discovering that the buyer might be buying into an unresolved fence war with title insurance that I might have cleared.

Ironically last year a subdivision neighbour here briefly put his home up for sale next to my lot. I had been trying in vain to work with him to discover who ? had disinterred one of the streetside survey bars ( a criminal code offence here ) and to share costs to replace. Without response and being careful not to evidence some sort of 3rd part contractual interference, I asked the realtor to look into the issue so that there could be avoided something not too unlike BillB17's scenario above. Not too long thereafter, the For Sale sign was removed.