real estate

Fences, not trees, make good neighbors

Steve McLindenq_v2.gifDear Steve,
A builder who is developing the lot directly next to mine tells me the future owner wants two trees left on the property after it's cleared. However, one is right on my property line and is in the way of where I need to build a fence. The builder, who seems pushy by the way, says I can't cut it down since we both own it.  Will it be worth the legal expense to take on the builder?
-- Richard

a_v2.gifDear Richard,
Probably not. Striking a compromise is nearly always the best way to proceed under such circumstances. The builder is correct that you can't take down the tree if it is clearly on the boundary line. Besides, while you still might fantasize about wielding a chainsaw and hollering "timber" as the tree falls in full view of the enraged builder, that wouldn't exactly be the chummiest way to kick things off with your soon-to-be neighbor, would it?

Here are two potential compromises to mull over:

  • Construct the fence so that it stops on the sides of the tree. If you're concerned about kids and animals (or neighbors) passing through the gap, use flexible wire fencing to fill it in.
  • Tell the builder you will construct the fence in either a "v" or a rectangular shape around the tree if he will pony up the money for the extra fencing, labor and fence posts.

If you choose either of these paths, don't forget that trees continue to grow and their root systems continue to expand, so leave plenty of room. And of course, you will still be responsible for trimming the portion of the tree that overlaps your property.

You can, by the way, legally trim the tree back to the neighbors' property line to your heart's content provided it doesn't hurt the tree. However, most laws hold that if someone cuts down or kills a tree without permission of the owner, that person owes compensation.

Before you do anything, make sure the property line is accurate. Is there a survey of the property that you can access at city hall or at a county office? A lot of county recorders and surveyor's offices have research Web sites where you can view your survey or plat without having to trudge down to the office.

A survey may show a deviation in the property line that would allow you to fully claim the tree or determine where the fence can be legally located. If there isn't a survey, you could always pay for one if this is a big issue. But also realize that surveys and survey offices aren't the final arbiters over property-line disputes. Highly disputed cases are often resolved before a judicial court as a civil matter.

In some property-line disputes, "adverse possession" can come into play after one party has unwittingly used part of the other party's land for a set period -- usually 10 years to 21 years -- without any objections. That is done to protect owners who have built a fence, driveway or other structure without realizing some of land for is technically not theirs. But since the builder probably hasn't held the lot for the requisite time and hasn't used it as an easement, this is probably not an issue.

While good fences make good neighbors, as the line from a Robert Frost poem goes, so do goodwill and give and take. Good luck exercising it.

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