Right Neighborly

Keeping the peace when home-improvement projects divide.

When my new neighbor bragged about plans to replace his blacktop driveway with decorative concrete and to flare the paving so he could park a boat without blocking his garage, I was less than enthusiastic. “I’m just letting you know as a courtesy,” he said, smiling, as I envisioned the runoff draining toward my finished basement and the hit to my home’s curb appeal.

The next day, I visited the local planning department to view the plat plans. I found that a 12-ft. utilities/drainage easement prohibited paving within 6 ft. of either side of the property line. Relieved, I shared the information with my neighbor in a brief e-mail. I also noted that our homeowners’ association rules do not allow boats to be parked outdoors, and then I asked for an opportunity to meet and talk. “I told you as a courtesy,” was his quick reply. “No need to discuss it further.”

Reality check: Your castle is not entirely your kingdom. Homeowners’ associations, neighbors, cities, states, utilities and courts also have a say over what you can do on your land. On the flip side, this means you also have some control about the state of your neighborhood.

When a neighbor plans a project that violates rules or infringes on your property, your first instinct might be to call a lawyer or the police. Although some situations (such as a neighbor walking onto your land wielding a chain saw) necessitate quick response, in most cases legal action should be your last resort. California attorney and co-author of Neighbor Law (Nolo, 2011) Emily Doskow theorizes that people often go to court because they are afraid of conflict. “Many people don’t learn conflict resolution growing up, so they don’t think they can resolve matters face-to-face as adults. Instead they go to court, which of course is the highest form of conflict, even if you have lawyers in between.”

When facing any property dispute, take the long view to avoid lasting conflict, Doskow advises. Otherwise the fallout can be as uncomfortable as living next door to an ex after a brutal divorce.

Top five conflict zones
Residential property disputes typically involve boundaries and setbacks, fences, trees, water and conformity. Here’s a brief overview of each of these issues.

Boundaries and setbacks: Determining precise property lines without a survey and metal detector can be difficult or impossible. Boundary markers may be buried or missing, old landmarks such as trees may have been removed, and fences are never reliable. Yet enforcing actual property lines is a big deal. If a neighbor puts a fence on your land (either intentionally or by accident) and you let it stand for a number of years, he could claim ownership through a principle called adverse possession.

Once you establish the line, find out about setbacks (how far structures must be held back). Setbacks can be as little as 3 ft. or twice that for easements and rights of way. Also find out whether laws limit the maximum footprint or height of structures. For example, adding a story to your home could block your neighbors’ view of the lake or eclipse their vegetable garden or solar panels.

Fences: Although fences present the most visible property-line issues, the rules that control them are anything but obvious. In general, city ordinances or state laws limit front-yard fences to 4 ft. tall and side or backyard fences to 6 ft. tall. (Special restrictions apply to dangerous electrified or barbed-wire fences.)

A fence is considered a boundary fence if it is placed directly along the property line. The homeowner who pays for the fence owns it, but he does not automatically have the right to maintain the outward facing side from the neighbor’s land. Always talk to your neighbors when planning a fence. They may be willing to split the cost or lend a hand. At a minimum you can request written permission to maintain the fence from their side or get their commitment to maintain that side. Another option is to build the fence a couple of feet inside the boundary so you can maintain it yourself.

A fence does not prove boundaries. It may have been positioned in error, or the homeowner may have built it inside the boundaries to allow room for maintenance. A property survey is the only way to officially define boundaries.

It is especially important to know whether a fence is on the line when a neighbor wants to connect a new fence to form a continuous enclosure around his yard. If your fence is inside the line, the connecting landowners could gain ownership of your strip of land. Either move the fence to the property line or advise the neighbor to install his own parallel fence.

Ordinances and homeowners’ association rules may restrict fence locations and materials to promote uniformity and safety. For example, our homeowners’ association specifies that fences must be made of cedar; metal, vinyl, pressure-treated and chain-link fences are not permitted; and fences may not enclose front yards.

Sometimes a fence is not a fence in the traditional sense. The law may deem a row of small junipers along a property line merely trees. But if they grow together over time and form a continuous barrier, they could legally be a natural fence and subject to a 6-ft. height restriction — a possibility worth considering as you choose trees or shrubs and decide how close to space them. On the other extreme, some homeowners have erected so-called “spite” fences, unusually tall or ugly structures designed to offend neighbors. (Not a good plan.)

Trees: Trees are a common and difficult property issue because limbs, leaves and roots often cross boundaries and can clog drains and gutters, heave paving and block sunshine and views. Your neighbors may trim a tree’s limbs and roots that cross onto their property, even if it results in a homely, lopsided canopy. But they may not do anything that endangers or kills the tree. For example, they are not allowed to poison the roots on their land or remove so many roots that the tree topples over in the wind.

A tree whose base is entirely on one property belongs to that owner regardless of how far its branches or roots extend into the adjacent property. The tree owner is responsible for its care, but the neighbor has a right to trim branches that cross the boundary line.

Doskow says it is smart to talk to your neighbors before doing anything to encroaching trees. You may jointly conclude that it’s better to hire a tree surgeon to trim the entire tree and nonessential roots to maintain its health and appearance. Don’t follow the old mantra “It’s better to ask forgiveness than permission” — if forgiveness isn't forthcoming, you may have to pay for damages. Don’t even think about cutting down a neighbor’s tree without permission. In states such as California, that’s considered a criminal offense punishable by jail time and a fine of up to three times the value of the tree.

Owners are expected to maintain trees so they do not pose a safety hazard; otherwise the homeowner can be held liable for the damage trees cause. If you do nothing about a diseased tree and a dead limb crashes onto your neighbor’s garage, you could be considered negligent and responsible. The best insurance is to hire an experienced arborist to periodically determine whether old trees are sound or need trimming.

Water: A homeowner’s ability to divert water runoff to protect his or her property varies. If you raise the elevation of your property and your neighbors’ basement floods, you could be responsible. But some states expect the downhill landowners to protect their property from the “common enemy.” To be safe, consult your neighbors and develop a drainage plan that will balance everyone’s interests.

Water runoff is a common enemy that neighbors need to conquer together. Be mindful of changes to your landscape or structures that affect the flow of rain or snowmelt so you are not diverting water toward your neighbors’ property.

Conformity: Houses built in subdivisions typically are subject to homeowners’ association bylaws. Rules might forbid vinyl siding, front-yard fences or permanent clotheslines and could require the homeowners’ association board to approve exterior paint colors. Unfortunately, some rules become obsolete over time, and it can be hard to achieve consensus about them.

For example, suppose you are interested in new eco-friendly or low-maintenance building materials but everything in your subdivision was originally built from wood, and the homeowners’ association rules require you to use materials of comparable value and construction. Arch Spencer, who has served on a suburban homeowners’ association’s architectural committee in Minnesota for many years, says his association rejected a family’s request to replace wood siding and a perimeter fence with vinyl last year, but he admits that the board is loath to go to court to enforce the rules in the more than 20-year-old housing development. “Honestly, we hold our breath and hope that everyone gets along and follows the rules,” he says.

Zoning laws and ordinances can be just as bad, says Sara Bronin, associate professor at the University of Connecticut School of Law. “These are old rules. They may go back to England. And ordinances are slow to adjust to new technologies,” she says.

Getting smart
Before planning a project or approaching your neighbors, arm yourself with all of the facts. Consult your plat plan, professional survey or deed to identify boundaries, rights of way and easements. You can get a copy of your plan at city hall or the county land office. The plan should indicate where boundary markers are placed.

Local ordinances and zoning regulations are subject to change and to exceptions (called variances), so be sure you reference the most recent updates. Property requirements also are formed by court rulings (common law) that establish precedents for interpretation. Typically the state supreme court has the final word.

Preserving the peace
Maintaining good relationships with your neighbors makes life easier. If you are planning a project that impacts your neighbors or if you learn that their plans affect your property, first do your homework; then talk to them face to face.

Don’t assume your neighbors would knowingly violate rules; they may not realize their project poses a problem. Ask questions to understand the scope of the project and their knowledge. Diplomatically explain what the law requires, and be prepared to show them supporting excerpts from ordinances, homeowners’ association bylaws, etc.

Finally, explain why it is important to you that they follow the rules. Sensitivity toward each other’s interests is essential to maintaining good long-term relations. Most people will be more receptive if they understand your reasons.

Keep the issue in perspective. Is it really worth creating a next-door enemy to get your way? Does it make sense to spend a small fortune for a lawyer to do battle when you might achieve nearly as much representing yourself in small claims court (see “DIY Method,” below)? As Doskow admits, sometimes a couple of cold beers in the hands of a calm and informed homeowner can achieve more than a lawyer, and with less of a headache.

It’s best to get to know your neighbors before problems arise. If a property conflict unfolds, be sympathetic and prepare to share costs or reciprocate by providing something the neighbors want in return for what you need. (And keep in mind that neighbors may look for violations on your property out of spite.)

If face-to-face conversation and negotiations fail, state your position and cite the law in a brief letter to the neighbors, and give them time to respond. If the disagreement persists, recommend mediation to resolve the matter. Many communities offer mediation services to relieve overburdened court dockets. The mediator’s job is to facilitate good communication.

If your neighbors reject mediation and the matter is crucial, tell them in writing that you are prepared to take them to small claims court. Although the judge cannot force them to do or undo anything, he or she can order them to pay $2,500 to $15,000 (depending on the state). You don’t need a lawyer for small claims court, but you must be prepared. Doskow suggests monitoring the court to get a feel for the process. Compile a log of your efforts to resolve the issue on your own (including copies of correspondence); laws and rules that apply; cost estimates from professionals for any necessary work; before and after photos; and notarized statements from witnesses or other neighbors.

Keep in mind that even if you win, it may be difficult to collect the money you are owed; you might have to attach the person’s bank account. And no matter how the legal action ends, don’t be surprised if hostile relations ensue.