justice-smiles-green-large.pngThe scenario is this. You and your neighbor have purchased properties. Neither you nor your neighbor had a survey prior to purchase. So, the result is when either of you later do have a survey, it is discovered that there are in fact some [potential] encroachments.

However when you purchased your home, you found out – verbally of course – through most likely the real estate agents or a conversation with your new neighbor, your seller, or perhaps even the original owner of your neighbors house – that while there IS or MAY be something beyond the boundary one way or another, the next door neighbor isn’t concerned with it. Perhaps later your neighbors house is sold and you again fail to clear up this uncertainty.

For those conversations in which it ISgenerally known what is going on, everyone knows pretty well the contours of the issue (i.e. Neighbor A’s ________ crosses the boundary of Neighbor B), and both Neighbors A and B have live peacefully because Neighbor A has permissively accomodated Neighbor B. This is called a “neighborly accomodation” (a legal term).

Alternatively for those sitations in which there MAY be an issue, each party while not knowing what the problem is, acknowledges the possibility of an issue. This is to say that there are known unknowns – instead of the “unknown unknowns” famously identified by Donald Rumsfeld.

[An unknown unknown might be a sinkhole which neither party has either identified or contemplated and yet it later appears.]

A known unknown might be that a fence near the boundary may be on either side of the boundary. In such an instance, neither Neighbor C nor Neighbor D are quite sure where the titled boundary line is with respect to the fence, but heck Neighbor C says: “If it isn’t right and I am gaining a few inches when we later redo the fence, you’ll get that space back … Right?” “Right,” says Neighbor D, “and I will do the same for you Neighbor.”

Good! But the problem is these good neighbors didn’t put it in writting. And to be honest, it would have been best if you pinned down the story prior to purchase too.

But, That’s the preverse of those damnable lawyers. What a bother!

Fast forward and a dispute breaks out. The “what” changes. “Why?”

Is it because people forget? Maybe? But, more likely it will play out like this for the afterward stated reasons.  

The previous owners are not likely going to be inclined to assist you. With the exception of someone who relishes the opportunity for payback against the “Neighbors from Hell” or someone that is impeccably duty bound and honest, most people will want to sidestep the whole slug-fest. This is the case generally with witnesses.

But, there may be other more pressing reasons for a seller not to recollect their previously revealed story. The reason is simple and driven by two factors.

One, the “misrecollecting” seller does not want to provide contradictory evidence – especially when a matter is bound for Court.

Two, the “misrecollecting” seller wants to avoid liability which he or she may have generated by failing to disclose this latent issue on the seller’s Form 17 at the time of purchase and sale.

So, what does all this mean?

It means that real estate boundary issues in which there is a claim of permissive use will almost certainly go all the way through discovery and likely be required to have a fact-finder determine the truth by evaluating conflicting witness testimony.

This is one of the reasons why boundary law disputes can easily run north of $50,000 if the parties decide to lock horns.

And as I seek to remind people …

“Whether you are the victor or the vanquished, you will nonetheless be the loser because you will be living next to your enemy.”

The inanity of the fight generally has just about everyone, not directly interlocked in the bloodsport as a party, thinking this is absolutely crazy.

And you know what? It almost always is!justice-smiles-green.png