Article by: David Baxter
The “Un-neighborly” Neighbor
We can’t choose our neighbors. Luckily, most of us have great neighbors. That is not always the case. In certain situations, real estate disputes can arise between neighbors, which require careful consideration in how to resolve them. After all, even after a dispute is resolved, you still have to live next to each other. There are a number of common disputes that I see in my practice.
Boundary Line Disputes
Disputes over boundary lines between neighbors arise quite frequently. There are any number of reasons why boundaries of a property may be in question. Old survey methods and deed descriptions weren’t always the most accurate. You may have seen some old deeds that refer to a “gum tree” or a “wagon tongue” as a monument, which may no longer be there. Also, as survey maps are amended, subsequent surveys may plot the boundaries based on old pins and monuments or even be an approximation based on a neighbor’s boundary line as the starting point. Whatever the reason, these disputes can cast friendly neighbors into a heated conflict. In these situations, the negotiation of a boundary line agreement is the best medicine. If the parties can agree, they can simply agree on where the boundary is, and enter into a written agreement that is recorded with the Register of Deeds. The agreed-upon boundary becomes the new boundary between the lots. While that sounds simple, a number of factors can complicate this, not including the parties’ disagreements. There may be utilities on the neighbor’s property that were installed under the false assumption that they were being installed on the correct owner’s property. There may be shared features that require ongoing maintenance. Inclusion of easements and maintenance agreements for things like a shared driveway or drainage system may be in order. The other alternative is to file a lawsuit to quiet title as to disputed portion. Given the cost and heated nature of litigation, all efforts should be made to negotiate an agreement outside of court, if such a resolution is possible.
Tree Disputes
I get a number of calls every year asking (1) Can I prune branches overhanging my property from a neighbor’s tree? (2) If a neighbor’s tree falls on my property, is it my responsibility to clean it up? And, (3) My neighbor hired a tree service to remove some trees, and they removed some trees on my property; what can I do?
First, if a tree limb is encroaching on your property from a neighbor’s tree, reach out to the neighbor and ask permission to cut the limb. Legally, you may not be required to get permission, but the law only imposes a minimal standard of conduct. At times, it is not the model for how to be a good neighbor. Simply cutting the limbs may be legally allowed, but it may cause tempers to run high. But, if the neighbor refuses, you have the right to the reasonable enjoyment of your property, free from encroachment, which includes encroaching tree limbs.
Second, if a neighbor’s tree falls on your property, it is generally your responsibility to clean it up. That may not be the case if the tree is rotten or is such a hazard that the neighbor knew or should have known that it would fall and cause damage. In that case, there may be some recourse against the neighbor. If your neighbor has a tree that is rotten or is a threat, I recommend sending a letter to the neighbor so that there is proof that the neighbor knew about the hazard and did not do anything to remedy it. But, healthy trees that fall due to Acts of God usually do not impute liability to the property owner where the tree originated.
Lastly, the North Carolina General Statutes offer some protection if someone else cuts or removes trees on your property. N.C. Gen. Stat. § 14-128 makes it a misdemeanor to go on someone else’s property without permission and cause damage or spoilation of a tree. Also, N.C. Gen. Stat. § 1-539 creates a civil remedy for cutting trees on someone’s property without permission. If a tree service cuts the trees, the service can seek reimbursement from the party letting the contract if that person misrepresented the property lines to the tree service.
Riparian Disputes
Property owners in North Carolina owning property where the waterward boundary touches the mean high water mark of navigable waters of the State have the right to “make reasonable use” of the water. These “riparian rights” encompass an area measured by extending the side lot lines at right angles from the original mean high water mark on the shore to the closest navigable channel. This method is subject to some variation depending on the nature of the shoreline, adjoining property owner’s lot lines, and the angle of the channel. Needless to say, this is complicated and when your neighbor builds a pier that extends in front of your shoreline, it can get messy. Typically, these disputes can be solved in similar ways to boundary disputes. A simple agreement as to easements, maintenance, and boundary lines may suffice. But, these disputes, more times that not, cannot be resolved in an equitable way without total removal or relocation of the pier.
Sometimes these disputes cannot be avoided, but you can reduce the risk of them by having a survey done for property you intend to purchase if one has never been done. Also, have a title search performed by a qualified attorney and obtain title insurance even if there is no lender involved.
The information in this Article is provided solely for informative purposes and is not intended to be legal advice nor relied on for any legal purposes.
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