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Fence Encroachment Responsibility Massachusetts

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  • Fence Encroachment Responsibility Massachusetts

    I have an odd situation and I'm trying to figure out what my responsibility to the issue might be.

    I purchased a house 9 months ago and had a survey done for the mortgage. It clearly states on the survey that this is not a boundary survey. I have been told by friends who are contractors that these surveys are still very accurate and that the statement is on the form to keep them out of legal battles.

    With that said, I removed the old fence on my property and installed a new one this past weekend. On the survey there were notes of possible encroachment in 2 areas, each of which I pulled in the fence to avoid any issues.

    While installing the fence, a neighbor of mine came out and began insisting that I was on his property by close to 2 feet. He was drunk and babbling about how the previous owner's fence was on his property. He says he argued with her over it and she had a family member's survey company check it. As his story went on, her survey stated she was right and her fence was fine but he didn't trust the survey as it was biased. He continued to babble about how he is absolutely sure his lines are in these places. He is insisting that I have it re-surveyed.

    The only clearly marked boundary (iron pipe) is on the opposite corner of my lot.

    I don't want to create a major issue with my neighbor but I don't want to waste a lot of money hiring in additional surveyors when I feel that I have done my due diligence and this person is just a angry drunk neighbor. (I haven't met him in 9 months until the day I installed my fence).

    My question is, what is my responsibility now that the fence is in place? Am I legally obligated to look into it or is it his problem to have a survey done if he feels I am encroaching on his property?

    Finally, are there any laws allowing for a few inches of error when fences are installed? I know that fences are not supposed to be on the property line but instead should be placed inside of the property line. I feel I've done my best in assuring that I have done this.

    Thank you in advance for any advice you could offer me.

  • #2
    Your purported survey might not hold any weight in Court

    Originally posted by Rhubarb1979 View Post

    I purchased a house 9 months ago and had a survey done for the mortgage. It clearly states on the survey that this is not a boundary survey. I have been told by friends who are contractors that these surveys are still very accurate and that the statement is on the form to keep them out of legal battles.
    If the alleged survey is not a boundary survey than you have rolled the dice in removing the fence. Hopefully, you have not rolled craps. The person who performed the alleged survey for the mortgage may not be a registered land surveyor. In most states, only professional land surveyors who are registered can determine boundaries of a parcel of land.

    I pray that your neighbor does not purse this matter. You should consult an attorney within your state who specializes in real estate in this matter immediately.
    Last edited by DrumMajorChange; 07-15-2009, 04:18 PM.
    I am not an attorney. My personal opinions are not legal advice.

    "The only thing we have to fear is fear itself." --- Franklin Roosevelt

    The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy. --- Martin Luther King Jr.

    A trap was set once upon a time; however, the designer fell in himself!!

    Comment


    • #3
      I don't want to use names but there is a seal on the survey stating "Commonwealth of Massachusetts; Professional Land Surveyor; Registered #339xxx" (I am not providing the full number so you can't work back the name)

      So this company knows what they are doing.

      I don't know if that changes the situation at all.

      It is also my understanding that a copy of this survey was filed with town hall.

      Comment


      • #4
        Mortgage Loan Inspection is not a boundary survey

        According to http://www.malsce.org/malsce_land.html, the Mortgage Loan Inspection surveys are provided by professional land surveyors in Massachusetts.

        Mortgage Loan Inspection: This inspection does NOT constitute a boundary survey. The sole purpose of the inspection is to obtain mortgage title insurance. The inspection shows an approximate location of improvements and is a cursory check for encroachments that may affect the subject property. No property corners are set and the information must not be used or relied upon for the construction of any improvements. (http://www.malsce.org/malsce_land.html)

        Thus, the fence is an improvement that is not based on an actual survey. If the fence encroaches on your neighbor's property, he might have rights under Massachusetts' law to seek its removal and other legal remedies afforded under the law.

        However, the mortgage loan inspection survey may not defend one in a boundary-line dispute with a neighbor. Talk to your attorney to determine your next step in dealing with the alleged dispute. Your attorney will have the right solution in dealing with this matter.
        Last edited by DrumMajorChange; 07-18-2009, 07:57 PM.
        I am not an attorney. My personal opinions are not legal advice.

        "The only thing we have to fear is fear itself." --- Franklin Roosevelt

        The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy. --- Martin Luther King Jr.

        A trap was set once upon a time; however, the designer fell in himself!!

        Comment


        • #5
          A professional land surveyor's seal does not mean he did the fieldwork

          Originally posted by Rhubarb1979 View Post
          I don't want to use names but there is a seal on the survey stating "Commonwealth of Massachusetts; Professional Land Surveyor; Registered #339xxx" (I am not providing the full number so you can't work back the name)

          So this company knows what they are doing.
          A seal of a professional land surveyor on an alleged document does not mean that the professional land surveyor actually did the work. The seal means that the work was performed by himself and/or under his supervision and that he is competent to do the work. Most times, the fieldwork is actual performed by field personnel that might not have a license at all. The land surveyor actually completes the official documents and signs it. There have been many cases where an alleged land surveyor has actually been found to commit many errors performing land surveys and never visited the alleged site at all in different States.

          In this particular situation, the type of survey you contracted for, the mortgage loan inspection survey, the seal is protected by the disclaimer that the work is not a boundary survey.
          Last edited by DrumMajorChange; 08-01-2009, 05:39 PM.
          I am not an attorney. My personal opinions are not legal advice.

          "The only thing we have to fear is fear itself." --- Franklin Roosevelt

          The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy. --- Martin Luther King Jr.

          A trap was set once upon a time; however, the designer fell in himself!!

          Comment


          • #6
            Thank you very much for all the advice... I understand now that I am not in possession of a formal survey and therefore it's his opinion against mine as to where the property line is.

            Legally speaking, if he expects that I am encroaching on his property, whose responsibility is it to have the survey done?

            If I am found to be encroaching I am happy to move the fence, I just feel that he is blowing steam and hoping that I will pay him off to go away.

            If it is my legal responsibility to have it done, I don't want to delay. But a survey isn't cheap and I don't want to have to spend hundreds of dollars because a half drunk neighbor ranted at me for 5 minutes...

            Comment


            • #7
              Neighbor's responsibility to obtain clear and convincing evidence

              Originally posted by Rhubarb1979 View Post
              Thank you very much for all the advice... I understand now that I am not in possession of a formal survey and therefore it's his opinion against mine as to where the property line is.

              Legally speaking, if he expects that I am encroaching on his property, whose responsibility is it to have the survey done?

              If I am found to be encroaching I am happy to move the fence, I just feel that he is blowing steam and hoping that I will pay him off to go away.

              If it is my legal responsibility to have it done, I don't want to delay. But a survey isn't cheap and I don't want to have to spend hundreds of dollars because a half drunk neighbor ranted at me for 5 minutes...
              You are welcome. My recommendation to you is to consult a competent attorney who specializes in property law within your state regarding this matter before employing a land surveyor in this matter. The attorney will be able to explore several options such as adverse possession, estoppel, and etc. regarding this matter. A simple letter from an attorney might be all that required in achieving peace with your neighbor.

              If your neighbor feels that you are encroaching on his property, it is his responsibility to have the survey performed. The evidence from the survey should be clear and convincing that you are encroaching on his property before moving the alleged fence.
              Last edited by DrumMajorChange; 07-31-2009, 11:51 PM.
              I am not an attorney. My personal opinions are not legal advice.

              "The only thing we have to fear is fear itself." --- Franklin Roosevelt

              The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy. --- Martin Luther King Jr.

              A trap was set once upon a time; however, the designer fell in himself!!

              Comment


              • #8
                A Million Dollar Mistake

                A seal of a professional land surveyor on an alleged document does not mean that the professional land surveyor actually did the work.

                Rhubarb1979, please read the following newspaper article and decide whether the seal of the professional land surveyor actually was worth the paper it was embossed on.

                You are the judge and the jury in the alleged case in the newspaper article. Enjoy reading the excellent story.

                A Million Dollar Mistake
                Last edited by DrumMajorChange; 07-18-2009, 07:54 PM.
                I am not an attorney. My personal opinions are not legal advice.

                "The only thing we have to fear is fear itself." --- Franklin Roosevelt

                The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy. --- Martin Luther King Jr.

                A trap was set once upon a time; however, the designer fell in himself!!

                Comment

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