real-estate massachusetts trespass real-property
Force neighbor to resolve property line encroachment before selling house
<p>My neighbor built a fence that crosses our property line.  I had a surveyor come mark the boundary to be sure. (It has only been a few years so no adverse possession possibilities.)</p>

<p>This neighbor is now selling the house, and I'd like to force them to fix the fence before they sell so that I'll have good relations with the new neighbor.</p>

<p>Is there a way for us to prevent the sale of the house until they have moved the fence?  For example, it seems that filing suit against the current owners doesn't necessarily prevent the sale, and that the suit would be pointless after the sale is complete.</p>

<blockquote>
  <p>Is there a way for us to prevent the sale of the house until they have
  moved the fence? For example, it seems that filing suit against the
  current owners doesn't necessarily prevent the sale, and that the suit
  would be pointless after the sale is complete.</p>
</blockquote>

<p>You can't prevent the sale, but if you file suit to adjudicate the boundary dispute and file what is called a "lis pendens" giving notice that the suit is filed in the real estate records, the buyer will taken subject to the lawsuit and realistically, won't close in the first place.</p>

<p>The prospect of an impending sale is unlikely to be something that would cause the court to take expedited action or issue a temporary restraining order, because you can preserve your rights with a "lis pendens" which doesn't take a court order.</p>

<p>The absolute minimum amount of time in which you could get a court order on the merits without a temporary restraining order is perhaps three to four months, which is almost surely too long to prevent a sale of a house.</p>

<p>The suit isn't pointless after the sale is complete. You can still enforce the boundary against the new owner. And, often, a new owner, having no ego in the placement of the fence, might settle the case sooner than the old owner would have.</p>

<p>But, better practice in terms of neighbor relations would be to file suit first, so that the new buyer, if the buyer goes forwards with the sale, is aware of the defect. The old owner is also more likely to have evidence useful in the lawsuit you bring.</p>

<p>Short of filing suit, send a letter to the realtor and the neighboring property owner with a copy of the survey advising them of the problem. If you could somehow figure out who was handling the closing, you could tell them too. This will impose upon them a legal duty to advise the new buyer before closing, and if they fail to do so, they expose themselves to the risk of a fraud lawsuit from the new owner.</p>

<p>But, while this is cheaper, it also presents a risk that they won't warn the buyer who will then not have notice and the risk of being sued for fraud may cause the seller and the seller's realtor to resist your suit more aggressively and to be less prone to settle it.</p>

<p>If you wanted to be really aggressive, you could give the neighbor notice that the fence is over the line and that you will destroy it if the neighbor doesn't act, and then tear down the fence, which is strictly speaking within your rights if you can do so without a breach of the peace, because it is on your property. I wouldn't recommend this approach, however, as it could lead to violence or police involvement that depending on the policeman who isn't trained in real estate law, might get you arrested which is not good even if the charges are later dismissed.</p>

<p>Your neighbor's fence encroaches (not trespasses) on your property, so the first stem would be for you to write a demand letter where you state what the encroachment is and what reason you have for believing that there is an encroachment. You need to make a specific demand, that is, don't just provide the information that the fence encroaches on your property. For example you could demand that the portion of the fence on your property be removed by May 20, 2019 (but that might be seen as unreasonably short: it depends on the nature of the fence and encroachment). It might be a good idea to hire an attorney to write that letter if you don't know what a demand letter should look like. More times than not, this is all it takes to get the fence removed (and I assume your actual interest is fence-removal, not sale-preventing). There is a separate question regarding the permit to build a fence – is a permit required in your municipality, and did he get a permit?</p>

<p>If the demand is not satisfied, you could either file a lawsuit to force removal of the encroaching part, or you could remove it yourself. The danger of the latter approach is that you might be sued for damaging your neighbor's property, which includes the sticks or stones that he put on your land. Additionally, if you take the law into your own hands, you could not get compensation for damage done to your property. There is also some danger that the neighbor will go ballistic, and a slim possibility that the surveyor was mistaken. Going to court takes longer and costs more, but is much safer.</p>

<p>The prospects that you will prevail in court are high if your understanding of the facts is correct, see <a href="https://lawyerslegalresearch.com/when-will-a-court-order-that-an-encroachment-on-adjacent-property-be-removed/" rel="nofollow noreferrer">this analysis of Massachussets case law</a>.</p>
