What is our recourse if our neighbor’s fence is on our property?

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What is our recourse if our neighbor’s fence is on our property?

My wife and I bought a house almost a year ago and during the process the property survey showed that our neighbors fence was 4.3ft on our property. We would like to take the fence down so that we can put up our own fence and get back that strip of land for more space to build a shed. Unfortunately the house is unoccupied and has been even while we were first looking at our property in the beginning stages. After some searching we found out that the previous owner passed about 2 years ago and that Chase Bank was handling the loan. We contacted them through email to tell them that we would be taking the fence down after 2 weeks but heard nothing back. After that time and until now, which has been about a month, we haven’t had time, or good enough weather, to take it down. About a week ago we noticed a sign on the door of the unoccupied house that it has been put up for a Sheriff’s sale by the county to be auctioned off in about a month.

We’ve talked to plenty of family and friends and they have all said to just tear it

down and put up our fence before then. Because we haven’t been able to get any kind

of answer from anyone who deals with the property I feel uncomfortable with just

taking the fence down.

Any advice would be greatly appreciated.

Asked on February 13, 2017 under Real Estate Law, Ohio


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

You have two options:
1) Take down the fence. If no one (e.g. the buyer at the sheriff's sale) complains, it's a done deal. If someone does complain and takes legal action (e.g. sues you), you would defend the matter on the ground that the fence was on your property, so you were taking down something which had no right to be there in the first place. If you can prove that your survey was correct and you made reaonable efforts to contact someone and try to work it out amicably, you should not face liabiltiy.
2) Bring a legal action for a declaratory judgment in chancery court, in which you will ask the court to affirmatively find that the fence is on your proeprty and that you have the right to take it down; you'd need to name the bank in the suit, as the current owner, and file it on them. This gives you certainty that what you are doing is correct, but can be costly and procedurally complicated, whereas going with 1) has the possibility of simply becoming a done deal.

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