Ralph's Weekly Legal What-If Scenarios: Encroachment - "Don't Fence Me In!"

Ralph's Weekly Legal What-If Scenarios: Encroachment - "Don't Fence Me In!"

Each Monday, I'm going to post a "What If" Scenario that presents a legal issue in a real estate hypothetical situation.

Each Sunday, either the correct legal answer (or most likely legal resolution) to the situation will be posted.

These are great opportunities to keep your real estate legal chops honed and tuned as a real estate professional. And I'm sure there will be some interesting discussions going on related to these hypothetical situations. Some of you may also have had identical situations in the past that will bring some interesting light to the answers.

Here is this week's scenario:

A buyer, Bob, purchases a property in 2008. Later that same year he decides to put up a fence. Unknown to Bob at the time, the fence actually sits about one foot onto the neighbors property, thus creating an encroachment. The neighbor at the time, Ann, never says anything because she never realized that there was an encroachment, she feels that the fence really doesn't affect her, and she actually thinks it looks nice.

In 2012, Ann's property changes hands and gets sold to another buyer, John.

John performs an inspection on the property during escrow, and it is then that he notices that Bob's fence sits about a foot over his property that he is in escrow on.

John closes escrow and immediately states to Bob that his fence is encroaching upon his property, and requests that Bob re-work the fence so that it does not encroach on his property.

Bob states that the fence has been there for three and a half years and that the previous resident never said anything about an encroachment. Bob states that he will not rework or remove the fence.

Who is right? Who is wrong? What will most likely be the outcome should John pursue the issue through litigation?

Post your definition of what the answer is, and the correct answer along with the relative laws that apply will be posted on Sunday.

Good luck!

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