If my neighbor builds a fence and a survey shows that the fence is on my property, canI remove it?

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If my neighbor builds a fence and a survey shows that the fence is on my property, canI remove it?

My neighbor wants to block me from access to a public easement that we share. He put up a fence to block me. He accidentally (or maybe purposefully) put the fence on my property. Can I go take it down since it is on my property wrongfully or must I wait to get a court order and an injunction (which would be very expensive)? In other words, if I go knock it down, will I be breaking the law? Iwant to write him a letter and state what  the law is? Is there a statute or case law that I can cite?

Asked on September 2, 2010 under Real Estate Law, New York

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

What you have here is technically known as an "encroachment" on your land.  Some states allow a party to bring an action based upon nuisance and some trespass.  He can not block your use of a public easement either.  Courts generally do not like people to "self help" themselves by tearing down fences and the like.  It can only lead to further unrest amongst neighbors.  What you need to do is to bring an action to "quiet title" and to remove the fence and ask the court to issue an order as to same and at the expense of your neighbor.  You need to have it written in plain words that he can not block the easement in any way (and it should be written so that neither party can do so).  Seek legal help before you pick up the sledgehammer. Good luck.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

1) As a general matter, someone may not erect structures on your land or block your access to an easement.

2) You are assuming your survey is correct--what if it is not? Surveying is an inexact science (though it should seem to be otherwise) and it's not uncommon for surveys of adjoining property, for example, to disagree. It's not impossible that your neighbor honestly though he was building where he had the right to.

3) Even if your survey is correct, as noted above, you neighbor presumably believes otherwise. That means that if you try to remove it, he will presumbly take action--lawsuit, call the police (e.g. vandalism), or possibly even try to physically stop you. Even if you're later vindicated, things could get ugly.

The best way to deal with situations like this is through the courts. Talk to a real estate attorney about seeking a  judgment confirming the boundary lines and easement rights and ordering your neighbor to remove the fence. It might even be possible to recover some of the legal costs, and this way, you'll get a legal adjudication you can rely on.


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