Full question:
Recently My South Side Neighbor incorporated a wooden fence without having a professional surveyor staking out the property border. He put the fence on my property according to the land surveyor I hired afterwords. It cost me $600.00 for the survey I have asked my neighbor to move the fence on the borderline where it is being indicated by the professional land surveyor. He does not want to move the fence on the border line. Can I take off the wooden fence from my property???? Please answer.
- Category: Real Property
- Subcategory: Encroachment
- Date:
- State: New York
Answer:
A quiet title or trespass to try title action is the method of determining title to lands, including land that is claimed by another who puts up a fence around it. In a quiet title action, it is possible to ask the court to issue an injunction to force another to do or refrain from doing an act. An injunction is an equitable remedy that the court may order when money damages will be inadequate to remedy the harm suffered.
In the case of an encroachment, a plaintiff may be awarded the fair value of the property. Typically, the court will determine value of property based upon expert evidence as to the value of comparable property in the location. In order to award punitive damages for an encroachment, courts have held that the plaintiff needs to prove the defendant acted with recklessness that shows a conscious disregard of property rights. Punitive damages are designed to deter conduct that was based on wrongful intent, usually requiring some proof of fraud, malice, oppression, or other wrongful and intentional motives.
If a surveyor is negligent is surveying property, by failing to use the standard of care and skills typical in the profession, and that negligence causes harm to another, it is possible that the surveyor may be liable for all or part of a claim brought against the person harmed.
An easement may be created by agreement which grants a privilege of a specific and limited use of the land of another. A right of way is a form of an easement granted by the property owner that gives another the right to travel over and use the owner's land as long as it is not inconsistent with the owner's use and enjoyment of the land.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
