What steps do I take to figure out who to be angry at?
June 19, 2012 3:21 PM   Subscribe

My wife and I just moved into our first house this month. Hooray! The people building a house next door say we have to move our fence [and tear down a shed-like thing attached to the garage]. Boo! What do I do?

The package of documents that came with the house included a 'Real Property Report', which shows a survey [from 2005] and states that everything is within the boundaries of our property.
Our neighbour [on the other side] said that he saw survey markers [rebar? I am unclear and his accent is strong] this year, and pulled them up so he could mow the lawn for the old owners. They were a few inches on our side of the fence, maybe.

Whose survey information is accurate? Who pays to move the fence and tear down / rebuild the shed if it indeed needs to happen?

Why did I only learn about it from a construction worker who was urinating 3 feet away from where I was trimming a bush as he told me, and not from [for example] my real estate agent or the lawyer who signed all the mortgage papers?

Most importantly, who do I ask about this in Edmonton, AB? My mortgage provider? The lawyer who we saw to sign the papers for the house? A different lawyer? The city? A third surveyor?

I am angry that this is a surprise, and I don't even know who I should be angry at.
posted by Acari to Law & Government (27 answers total) 2 users marked this as a favorite
Tell your neighbor to get a survey done. Don't tear anything down until you know for sure you have to.
posted by Maisie at 3:23 PM on June 19, 2012 [17 favorites]

I would start with the lawyer that you signed the papers with, but I'm in NYC so I'm not familiar with your area. But I wouldn't just take this person's word for it. Good luck!
posted by cestmoi15 at 3:27 PM on June 19, 2012 [1 favorite]

I should state, since I forgot to mention it, that the house is being built on spec. It will be for sale as soon as it is complete [or before, maybe], and that the builder had a survey done before construction started [apparently], which is where the markers that the other neighbour saw/discarded came from.
posted by Acari at 3:28 PM on June 19, 2012

Also, your survey will have the name of the firm that prepared it printed on it. You can get in touch with them for more information.
posted by Maisie at 3:28 PM on June 19, 2012

Do you have title insurance (not all Canadian transactions include it)? If so, they may be helpful.
posted by carmicha at 3:28 PM on June 19, 2012 [1 favorite]

So what? You have a survey, too and yours says that the fence and shed are on your property.
posted by Maisie at 3:29 PM on June 19, 2012 [16 favorites]

I would provide your neighbor with a copy of the real property report - explain that you don't know what the markers that he found were intended to show (they may have marked something useful to the builder but necessarily the property line) but the professional survey says that everything is within the boundaries of your own property. If he is unhappy with that, that the next step would be for him to pay for a new professional survey. (You shouldn't pay for it since you are happy with things the way they are now)
posted by metahawk at 3:36 PM on June 19, 2012 [14 favorites]

Why are you taking this person at all seriously?

Give them your lawyer's contact info *only* if they approach you again about this. Otherwise, skip it.

Do not discuss this with them further. Ever.

Ignore, and/or refer them to your lawyer only if you are approached again.

(There's no gentle way to say this next, sorry in advance...) Stop being so naive. This contractor is not your neighbor, this is about money, you owe them no accomodation beyond what civil societal mores demand. Stop being so naive.
posted by jbenben at 3:36 PM on June 19, 2012 [27 favorites]

I would contact the surveyor listed on your survey and ask them to come out and stake your property corners. Expect to pay a fee for this. Once you know where your property boundaries are in the real world, if this is a problem with the construction next door expect to follow up with a real estate attorney.

Also, nobody should be messing with survey markers, period.
posted by werkzeuger at 3:36 PM on June 19, 2012

On preview, I agree that you already have a survey and shouldn't pay for a new one. Having your corners staked would offer peace of mind, however.
posted by werkzeuger at 3:40 PM on June 19, 2012 [1 favorite]

Be angry at the construction worker. Call your lawyer.
posted by empath at 3:45 PM on June 19, 2012

Tell the neighbor politely that you have had a survey, and believe the fence and shed meet requirements. Ask neighbor to explain his reason for having a different belief. No sense starting a turf war, so be calm and polite, but not submissive. Check city regs. to verify any setbacks.

I had a neighbor who read his deed, then went out with a tape measure and did his own 'survey.' I tossed his marker out, and told him to a. get a real survey, and b. stop smoking crack or whatever else made him crazy, but, by then, he'd already been a huge ass; generally I don't recommend this. He moved, and that was the end of the turf war. Amazing how wack people will get about tiny bits of property, except, it's property, and humans are territorial.

When you sell, provide new owners with as much documentation as possible. Consider putting in deeper stakes with nothing showing, as they would be found by a metal detector.
posted by theora55 at 3:48 PM on June 19, 2012

Your update suggests that the builder may be panicking. If the contractor erred when he/she poured the foundation and the house now violates your municipality's sidelot requirements, the municipality won't grant a certificate of occupancy and there will be some form of hell to pay. This scenario happens more often than you think, but if so it's the contractor's problem. Don't let them solve it by bullying you into doing something that allows them to fake where the boundaries lie.
posted by carmicha at 3:48 PM on June 19, 2012 [12 favorites]

Your lawyer will have title insurance, in case he or she screwed up on the transaction and you got a lot smaller than your survey says. Your lawyer is your first call. Wouldn't surprise me if your neighbour is wrong.
posted by Dasein at 3:48 PM on June 19, 2012 [1 favorite]

You don't have to pull survey markers to mow the lawn. You can pound them flush with the ground so they don't hit the blade. If they removed them, someone might be trying to hide something.

Get your corners re-staked.
posted by hwyengr at 3:50 PM on June 19, 2012 [6 favorites]

If the house is still being built, there will most likely be city building inspectors visiting the site to check up on the progress. There should be some record of inspectors checking the lot corners and setbacks, or getting such verification from professionals who certify those things against their professional license.

You as a future owner shouldn't have the site re-staked, that is something for the contractor to have verified and maintain. If the neighbor removed the rebar, there might be some civil actions in their future, but that should be between them and the contractor or whoever currently owns the property.
posted by filthy light thief at 3:54 PM on June 19, 2012 [1 favorite]

You can rent a pin finder and stake out your property lines be yourself. Also on your RPR the stakes are marked out they will be the larger black dots in the corners. You can measure out from your house and dig down to find them. They will be about one foot down. It is against the law to move them. Since your RPR show everything is on your property,I would ask the neighbour to pay to have it done again if they want you to move anything, it is on them to prove it. I work for a builder in Calgary/Edmonton so feel free to memail me and I can try to answer any questions.
posted by blueberrypicasso at 4:39 PM on June 19, 2012

Did you get Title Insurance?
posted by Flood at 5:28 PM on June 19, 2012

Yeah, this is what title insurance is for. Call the lawyer that handled the transaction. He'll know how to file a claim, if necessary.
posted by valkyryn at 5:33 PM on June 19, 2012

Gee, which one would I believe: a properly-done survey or some random construction worker?

But, just to be safe: get your property re-surveyed and your boundaries clearly marked.
posted by easily confused at 5:34 PM on June 19, 2012 [1 favorite]

My friend's property on one side has bricks or cinder blocks or something as a border. Well my friend has noticed over the years that neighbor on one side keeps moving blocks over just a tiny bit. Slowly that side of the "fence" has gotten narrower and they've gotten into fights about it. But the fact of the matter is that the legal property are the legal property lines no matter where those cinder blocks are.

You're neighbor may be trying to stake a claim on a bit of your land. Maybe after so many years of you "agreeing" that his "survey" of the property lines are correct, he can legally claim it as his.

Also, it's possible he's trying to remedy and issue he had with the previous owner and the property lines.
posted by eatcake at 6:47 PM on June 19, 2012 [1 favorite]

As a non-lawyer, the only ways I know that this situation can go really wrong are a war with the neighbors (not likely, right? Since the plan is to sell the new house.) and the creation of a "easement." An easement is when, as eatcake describes with the cinder blocks, the "continuous, open, and hostile" use of someone else's property creates a legal right to continue that use. But all the conditions have to be met. The use has to happen regularly, you have to be aware of it, and you have to not contest it. It's possible that an easement existed when you bought the property, but I believe you would have had to be notified. The easiest thing to do, (again, not a lawyer, not legal advice, etc.) is to give them written permission to use the disputed area. Then the use is not hostile, since it's with your agreement. However, that doesn't seem to be possible in your case, since they are making demands about what you do with structures.

Fence law varies widely from jurisdiction to jurisdiction, at least in the U.S. If the fence was there when you moved in, in some places it's a common responsibility.
posted by wnissen at 7:04 PM on June 19, 2012

As a lawyer, I will politely suggest that you not pay attention to a non-lawyer's mistaken description of what an easement is.

I have not seen you answer the question about title insurance. Virtually any bank or financial institution lending you money to buy or build a house will insist on it.

The neighbor may have pulled the surveyor's markers, in which case he has interfered with the best recent evidence of where the corners are. You could suggest that, in light of his interference, he should get the survey redone at his expense. That is an idea, not legal advice. Legal advice should come from your own solicitor.
posted by yclipse at 7:33 PM on June 19, 2012 [1 favorite]

Maybe after so many years of you "agreeing" that his "survey" of the property lines are correct, he can legally claim it as his.

IANAL, but: 10 years, actually, in Edmonton. Or at least that was the case circa 2003. The relevant legal doctrine is called "adverse possession," more commonly known as squatter's rights.

In all seriousness, it may be worth your while to see if you can find any documentation as to when the disputed fence and/or shed was put up. People usually think of inner city landlords or old timey prospectors or something when they hear the word squatter, but the adverse possession doctrines can just as easily apply to a sliver of disputed land. I'm aware of at least one case in my (U.S.) jurisdiction that was superficially similar to yours --- contractor tore down a house, and tried to have a fence moved to accommodate his condos. In that case the judge said, tough noogies, pal --- the fence has been sitting there for 20-odd years with the neighbours using their side as a vegetable plot, even if the deeds say the boundary's a foot to the east, they've obviously been treating it like their property for long enough to meet the statute, they obtain by adverse possession. IIRC, the contractor was likely going to have to tear down the already completed condos over it.

Obviously, IANAL, IANYL, I am not a judge, and I definitely haven't been keeping up with the latest esoterica in Edmonton property law. But it may be worth your while to find out the situation with the shed --- if your deed and the neighbours conflict as to the description of the boundary, how long you've been treating that land like it's your own might come into play.
posted by Diablevert at 8:05 PM on June 19, 2012 [1 favorite]

[I stepped away for a belated father's day dinner]

We do have title insurance. I did not take the construction worker's words at face value, but I did believe the neighbour who has lived next to this [98 year old] house for the last 34 years, especially since he immediately said that he was the one to remove the markers.
The markers were not at the corners, but along the fence line. I believe that the corner markers are probably still buried where they belong, but I haven't checked.

Since I do have a survey, I will sit tight until I hear a more official request from the actual owner/builder/whatever of the property. At that point I will provide a copy of the survey and direct further enquiries to my lawyer.

Thanks for all of the advice. I will refer back to the advice here if the situation ever does escalate.
posted by Acari at 8:40 PM on June 19, 2012 [1 favorite]

I may have more good news, don't know if it applies to you, but just in case...

A friend of mine bought an apartment building here in LA some years back, it turned out years later the survey was done incorrectly. My friend was in a position to sue a bunch of folks, who and for what I do not remember, but I know he was the innocent party (like you) and he won his case. And money. This apartment building is maybe 60 to 80 years old.

In light of this, you may want to consult a lawyer versed in these matters other than the one you previously used. If, if, IF your survey was done incorrectly (and I'm not convinced of this, BTW) then pretty much you have a legal case for compensation.

I'm sorry I don't know more details. My friend was so aggravated by the whole thing when it first came up, all he said was the survey was done wrong, yadda, yadda. He was super annoyed he had to initiate a lawsuit (the faulty survey put him in this position,) and I know he won. As I remember it, winning was never at issue, it was just the headache of having to go through the process at all.

My friend is a writer, and therefore, temperamental by nature. His aggravation doesn't have to be your aggravation!

My point is that even if (and that's a big IF) your survey was done incorrectly, you are in the clear, and likely to receive benefits.

IANAL, all that. I just know the reason you hire professionals to handle real estate transactions is so this type of headache doesn't crop up. When it does crop up - it's on them, not you.
posted by jbenben at 10:01 PM on June 19, 2012

A tangent comment about moving your fence. It's only "your fence" because the previous owner paid for it. If the survey comes out against you and you want to annoy them, tear it down and don't have another built. This is assuming you don't have a pressing need to contain your backyard (a dog, for example). Then if they want your properties separated, they'll have to build their own fence, presumably an inch or two to their side of the property line. This is, of course, highly jerk-like behavior, and I honestly wouldn't recommend it since you'll have to live next to these people for the forseeable future, but it's fun to contemplate.
posted by aimedwander at 7:28 AM on June 20, 2012

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