Family Health Legal Library

Real Estate Issues

Real Estate Issues

Common problems in Real Estate law involve disputes between: (1) adjoining property owners or (2) joint owners of single property. This section will set forth some of the general property rights of landowners which can be used as a guideline to help you understand your rights as a property owner. However, you should know that this is an area where the legal issues should be discussed with your Plan Attorney prior to taking action. Certain actions may be inappropriate if applicable legal rules are not followed.

You should also know that property disputes can be one of the most costly and lengthy areas of law in which to bring, or defend, a lawsuit. This is no doubt due to the tremendous personal pride which emanates from owning a piece of property. The author recommends that any property owner who is about to become involved in a dispute regarding the property, should seriously consider various compromises and settlement possibilities as soon as possible, so as to minimize legal costs wherever possible.

1. Fences/Walls

One of the most common problems between landowners involve fences or walls which divide properties purportedly along property lines. The general rule in this area is that any object or item, including a fence or wall, which is located on the property of an individual can be removed or altered by that individual, notwithstanding, of course, common walls belonging to a condominium or townhouse or other similar type of real estate ownership. Also, various neighborhoods have restrictions on fence heights, and other types of characteristics, which may not be altered.

Thus, if a neighbor's fence is on your property, you can physically remove that fence. However, prior to calling a bulldozer, you ought to know about several items. First, you, or your agents, are liable for all damages caused to your neighbor's property and/or personal items, including trees, plants, or ornaments, if any such damage is caused during removal of the fence.

Second, you should make absolutely sure you are correct as to your property lines, prior to removal of any fence or wall. The author recommends that unless a survey from a reputable licensed surveyor is obtained, that the removal of any object not be undertaken.

Thirdly, there may exist certain legal rights by the adjoining landowner of which you may be unaware, such as easements, prescriptive easements, licenses or other types of allowable uses. These may give an adjoining landowner, or his/her agents, rights to be on your property line, or even over it in some cases.

Easements, licenses and prescriptive easements can be difficult concepts to understand in a legal context. If you think your neighbor would assert a claim of easement, license or other type of claim, you should consult an attorney, prior to taking any actions with the fence or wall.

Perhaps the most important rule is that you ought to be absolutely certain that you are correct prior to removing or altering a fence or wall, particularly if it is not owned by you.

Likewise, if you and a neighbor decide to build a fence and share the costs, undertake a survey, and have this transaction properly documented in an agreement.

2. Trees/Plants

The maintenance of trees and plants is a constant source of property owner disputes. The first step which should be taken with respect to trees or plants encroaching onto your property is to discuss this problem with your neighbor and make a request that he/she have the plants or trees professionally trimmed, so as to avoid the encroachment.

If this action fails, you are entitled to have the neighbor's encroaching trees or plants removed from the boundaries of your property. The same precautions which we discussed under Fences/Walls above, apply. For example, if the tree-trimming leads to the demise of the neighbor's entire tree, which is on the neighbor's property, you may be liable for damages to the tree. Great care ought to be exercised in this instance, too, prior to employing "self-help" measures. It may be much cheaper to obtain a Temporary Restraining Order and/or a Permanent Injunction which will enjoin (stop) the neighbor's encroachment, instead of cutting the trees, and later being held responsible for paying property damages.

A quick note about cutting trees, plants and other greens. Recently, both federal and state environmental laws and agencies which ensure the protection of various aspects of the environment have created regulations prohibiting the cutting, destroying or digging of certain such greens. Before you "help yourself" you ought to check whether your actions will subject you to a fine or criminal penalty which might not otherwise be obvious to you.

SMALLER DOLLAR DISPUTES

What should be done when the damages in these neighbor disputes may not be thousands of dollars? For example, what if the neighbor agrees to pay for half the cost of a new fence and then refuses to pay the $450 when payment is needed? Or, when a neighbor cuts down your tree, which costs $675 to replace? Or, when a neighbor removes your fence, replaces it, and paints your side a hot pink color, and you now must pay $1,000 to repaint the fence?

Many neighbors know that they may not have to perform certain obligations which they are otherwise obligated to perform by law, since they know a neighbor may not be able to pay the legal fees involved in a lawsuit for such amounts.

Indeed, once in a while, a small amount of money involved makes it unaffordable to hire a lawyer. Assume any of the examples above. Naturally, no one wants to throw away $450, or $675, or $1,000, especially where your legal position is correct.

Real Estate Issues
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