Encroachments and De Minimis Non Curat Lex

[LS_8750]

A scenario from an associate worthy of a share:

"Adjacent residential property owners A and B each hired licensed surveyors to determine a common boundary location on a 30-degree hillside, and the surveys were consistent. A built an attractive and expensive 100' straight-line good-neighbor fence entirely at his cost and entirely on his side of the line, except for half-circles of concrete piers that extend up to 8" over the property line at each fence post. A is not asking for any reimbursement."

"The half-circles of concrete are slightly above ground level on an undeveloped dirt strip on B's property and do not interfere in any way with the use and enjoyment of B's property. However, B states that he does not want any part of the fence on his property and is demanding that all of the encroaching concrete be jackhammered or the fence removed and rebuilt so that absolutely nothing above or below ground extends over the boundary. B has threatened to have a contractor tear down the fence, deposit it on A's property, and send A the bill for fence removal."

"Is it common practice when building fences adjacent to surveyed property boundaries to have minimal encroachment by fence-post piers? If fence builders cannot create any encroachment, even below ground, then wouldn't boundary fences have to be constructed well inside property boundaries, effectively giving up many square feet of property? That doesn't seem fair or reasonable. Are you aware of similar cases where the courts have said that such encroachments are "de minimis" and dismissed the case or awarded a nominal judgment?"


The underlying question appears to be: just how de minimis is de minimis?

[Ric7308]

Reminds me of the situation in SoCal from about 2006-2007 where one land owner made the neighbor excavate around every fence post while a land surveyor was present to asbuilt the concrete relative to the property line. The land owner made the neighbor pay to sawcut half an inch off several concrete "piers" due to encroachment issues. Yes, you read that right...half an inch. This was part of a complaint against one of both of the land surveyors and did involve civil action.

[Stan_K]

Ric & Clark,

Does Civil Code, Chapter 841 come into play in the above situation? Especially 841(b)(1)

[Ric7308]

You're on the right track Stan. AB 1404 (Chapter 86, Statutes of 2013) made changes to this section of Civil Code last year. Clark, you may want to study what led to those revisions.

http://leginfo.legislature.ca.gov/faces/billStatusClient.xhtml

[dmi]

A property owner has the constitutional right to dispose of and/or control their property in any manner they see fit, so long as it is consistent with the law. If I do not wish to have YOUR fence footing on my property, then I am free to prevent you from using ANY portion of my property for a purpose I do not approve.

An attempt to apply the principle of di minimus to the facts presented here is entirely beyond the authority of a land surveyor.

I worked on a case here in S.F. where warring neighbors were disputing fractions of an inch and the outcome was that the other side had to tear down and rebuild a 4' high, 25' long retaining wall TWICE. The builder of the wall violated the settlement agreement and the judge was not happy.

I see no reason why, if your neighbor does not want any part of a fence on their property, that their wish in this regard cannot be honored.

[LS_8750]

Thank you Mr. Ince.
Boundaries are boundaries.

[David Kendall]

It appears to me that legal precedent will require the fence builder to build and maintain the fence entirely on his own lot, however, the neighbor is responsible for half of reasonable costs for construction and maintenance. I guess like 99% of fence conflicts, it could be resolved with some coordination and compromise by the interested parties. I guess that is somewhat true for all legal disputes...

[Darth Vader]

Dane,

Any way you have access to a case number for that decision? I have been trying to convince a landowner that they may need to just move their fence rather than take a risk of losing in court.

Any help would be much appreciated.

Darth

[land butcher]

That's why builders of tract homes build the walls with the edge of the footing on pl and not encroaching. Puts the CL of the wall about 8-9 inches onto the prop but eliminates these issues.

My son's neighbor built a concrete fence where the horiz slats slide down between grooves in the posts. What we didn't know and the city approved the wall plans was a concrete curbing the full length of the fence at ground level the blocked sheet flow and the neighbor, a contractor, put the posts in ~2ft dia footings. We had to install a area drain system and were not happy to find these huge footings extending into our property. The Building dept should have had them hold all of the fence on his property. I wonder why the cities check plans.

[dmi]

DV NO PRECEDENT on what I worked on, it was a lower court dust up...