A neighbor put a fence on my property: what to do, where to complain, how to sue him

A fence is one of the options to mark the boundaries of a land plot. Most land plots are limited by fences, which not only must be located in the place designated by documents, but also meet certain requirements. Owners often ask the question: “What should I do if a neighbor put a fence on my property?” How to deal with such a situation and what steps can be taken to eliminate the violation of law?

The correct location of the border and fence is a fundamental part of good neighborly relations. But our neighbors do not always behave the way we want and the way they should be in accordance with the law. The problem is solved in different ways, ranging from simple negotiations to litigation.

What is a fence and where should it be located?

One of the characteristics of a land plot is its boundaries, that is, the limits where it ends and the land of other owners begins.
But they are not always defined properly. Many plots have been issued for a long time and there may be no information about their exact location. It is also possible that according to documents, areas are demarcated, but in fact, fences or other landmarks are not installed.

A fence is one of the options for defining boundaries on the ground. Also, other landmarks can be used on the ground, from some natural or landscape objects to pegs and pillars. The fence is convenient in that it defines the exact boundary and also serves as some obstacle to the entry of unauthorized persons into the territory.

The fence should be located where the property line ends. Otherwise, its position will violate the rights of the owners of neighboring plots.

Who owns the fence between neighbors?

In order to find out who the owner is, it is necessary to find all evidence of payment (checks, receipts, installation agreements). You can also take into account the testimony of eyewitnesses (installers or other neighbors).

Next, after studying the site plan, you should find out on whose land the fence is located. He will be the owner.

So, the owner of the fence can be:

Owner of land (plot). In this case, he is responsible for repairing the fence.
His neighbor. He is responsible for the safety of the fence.
Both. If the fence is located on the border of two plots, we can talk about common property. Accordingly, all repair work must be resolved by agreement of the two parties.

Important! Only the totality of all documents will help determine who owns the fence. The best option is to install it on the border of the plots of two neighbors. In this case, both parties have equal rights and obligations in relation to the fence.

Legal regulation

To understand what to do when a neighbor incorrectly defines the boundaries, where to complain and what to do about it, you need to consider the rules governing these issues.

Land Code of the Russian Federation . It defines general issues relating to the use and delimitation of land plots, for example, Article 11.9 establishes the requirements for created and changed plots, including requirements for their boundaries.
Federal Law No. 221-FZ of July 24, 2007 “On cadastral activities” establishes the rules for conducting cadastral work, with the help of which the exact limits of land plots can be determined.
The Civil Procedure Code of the Russian Federation defines the procedure for a citizen to go to court to protect his rights, as well as its features.

At the same time, issues relating to the establishment of boundaries and fences are regulated by many by-laws, as well as building and sanitary standards, which regulate not only the location, but also specific features.

Link to document:

Link to document: “On cadastral activities”

What to do to solve the problem legally?

If a neighbor erected a fence not according to the standards and violated the boundaries of private property, then it is more likely that he will have to file a lawsuit. In this case, it is necessary to rely on the town planning code of the Russian Federation. Resolutions of regional authorities may also be important. In this case, local climate conditions may be taken into account, as well as differences between federal and local laws.

You can try to resolve the issue peacefully and simply talk to your neighbor, pointing out that his building violates the Building Code. However, as practice shows, there is a high probability that he will not agree.

The neighbor put the fence in the wrong place. How to resolve the conflict?

In practice, boundaries are violated by the owners of neighboring plots quite often. But the neighbor does not always have intent. In any case, there are several options to solve the problem :

try to resolve the issue peacefully through negotiations. This is the first step to take. Quite often, misunderstandings arise due to the lack of precise boundaries or contradictions in the cadastral schemes that everyone has;
if the land is located on the territory of the SNT, you can try to contact the chairman and check the information on the general cadastral plan;
carry out boundary work and coordinate the site with neighbors. This method will help if previously there were some contradictions in the documents or land surveying was not carried out at all;
go to court to protect your legal rights. If other methods do not bring results, one can only rely on the court.

If you have an act of approval of boundaries, signed by the current or previous owner, you need to show it to your neighbor and try to put a fence exactly where the boundary lies. In most cases, a document is enough to resolve the conflict and reach an agreement. But if the situation is not resolved, all that remains is to prepare for the trial.

Which neighbor should install the fence?

There is no clear definition in the legislation and SNiP standards as to which of the owners should install the fence. The law defines only the border between two land plots (interface), which serves as a guideline for delimiting property. As for installing a fence, this issue is resolved mutually between neighbors.

Therefore, if you want to make it your property, you need to install a fence only on your site. In this case, the owner of the fence is free to independently choose its height, type of material, design features and color. Accordingly, all material costs also fall on the owner.

If both neighbors are interested in common property, they jointly resolve issues related to the characteristics, installation of future fencing, and also distribute all costs among themselves.

Lawyer's opinion: Before installing a fence, talk to your neighbors. Often in cottage villages there are certain rules that assign ownership of the fence, for example, to the area on the left. Of course, such traditions do not have legal force, however, by observing them, you will be able to initially build good relations with your neighbors.

Resolving the conflict in court

Before starting a lawsuit with a neighbor, you need to understand how to sue him, what documents will be required, and what to do for a positive outcome of the case. To prepare, you need to analyze whether there is a chance of a positive result and whether it is worth starting the trial at all. This can be resolved by answering the following questions:

Is the neighbor really trespassing?
Is there documentation on hand confirming the exact dimensions, and therefore correctness?
Was a border approval act previously drawn up?
Is there any other way to prove your position?

The main evidence is the presence of an approval act or cadastral plan, where the border is clearly marked. If you have these documents, you can safely begin judicial preparation.

The issue is resolved in litigation. The application is submitted to the court at the location of the site.

The claim to the court must contain confirmation of the fact of violation of boundaries (this can be photos, video materials), documentary evidence of its legal position (site plan, land surveying act, etc.). The appendix to the claim must contain all documents substantiating the plaintiff’s position.

Download the statement of claim to establish the boundaries of a land plot (sample/form)

You can also use witness testimony that confirms the defendant’s unlawful actions (for example, dismantling an old fence or installing a new fence without the consent of a neighbor). To do this, you need to file a motion to call witnesses to the court hearing.

Important: before calling witnesses, you should obtain their consent to provide evidence to the court. In civil proceedings, unlike criminal proceedings, witnesses cannot be forced to testify.

The court will make a decision only when the applicant can prove his right to the plot, its exact boundaries, as well as the fact that the neighbor has violated the boundaries.

The prospect of a legal dispute over property boundaries

Despite their apparent similarity, these cases are very different from each other and have different perspectives.

Example No. 1

Initial data:

The fence stood in place for more than 15 years, but one day a neighbor moved it in your direction.
There were no disputes about the border before.
Land surveying has been done for your and your neighbor's land, and the boundary has been agreed upon.
The coordinates of the common border of the plots are entered into the cadastre exactly as the fence used to be.
The areas of the plots resulting from land surveying approximately correspond to those areas indicated in the first land allotment documents, and the location of the border approximately corresponds to the primary layout.

Boundary dispute. The neighbor moved the fence away from the border

Prospect of dispute

Here all the most important circumstances are in your favor. The probability of returning the fence to its place is very high.

But we must understand that such stories, when a neighbor suddenly became insolent, are in the minority. Most often, the neighbor, when moving the fence, is counting on something and has “his own truth.” Most likely, he believes that the fence was previously positioned incorrectly, and has some arguments in defense of this argument. See examples of such situations below.

Example No. 2

Initial data

For many years there was no fence between the plots at all, but there was a certain conditional boundary, which the parties considered to be the border.
One day, a neighbor installs a fence that violates the usual boundaries.
There was no land surveying; there is no data on the border in the cadastre.

Boundary dispute. The boundaries of the plots are not defined in the cadastre.

Prospect of dispute

Having gone to court, you will most likely find out that the line that you have called the boundary for many years, in the opinion of the neighbor, is just a path on his property, and the real boundary allegedly passed in another place: where he put the fence.

The court's task will be to determine how the border should actually go, since there is no data about it in the cadastre.

When resolving the dispute, the court will be guided by Part 10 of Art. 22 of Federal Law No. 218-FZ “On Real Estate Registration”. It says what circumstances need to be taken into account when determining the boundary:

1. How the actual border has developed over the past 15 years . This takes into account the location of fences, buildings and even plants on the border that have existed for more than 15 years. This point when considering such disputes is perhaps the most important.

2. The ratio of actual and documented areas of adjacent plots. The parties mistakenly consider this to be the most significant circumstance. For example, Maria Ivanovna has a state certificate for 500 sq.m., and Pyotr Petrovich has a state certificate for 600 sq.m. Moreover, the actual border runs in such a way that Maria Ivanovna had 530 sq.m., and Pyotr Petrovich had 585 sq.m. On this basis, Pyotr Petrovich considers it proven that Maria Ivanovna seized part of his plot.

Meanwhile, this factor is the least important for the court. The court proceeds from the fact that the actual area of the plot may differ from the area indicated in the title document, especially if the document is old. As long as the areas don't differ too much. First of all, the court will take into account the actual border.

I note that according to the law, the court must also take into account the following data, if available:

How the border is described in the title documents for the plots (in old title documents there is usually no such information, but only data on the area and a vague diagram).
How the boundary is determined surveying project (usually there is none, and if there is, then there is no information about the required area).
How the boundary is determined by planning documents when creating plots (sometimes such documents can be found). And if it succeeds, then this can seriously “sway the scales” in one direction or another, even blocking the evidence of the actual location of the border.

Conclusion : it is quite difficult to predict the outcome of such disputes in advance, but in order to get a real chance of winning, you need to have a good understanding of what is important for the case and what is not, and where to look for evidence of significant circumstances.

Example No. 3

You are demarcating your plot and suddenly discover that your neighbor “dissociated himself” earlier, and in such a way that the common border is shifted in your direction and your plot has become smaller.
The neighbor puts up a fence in accordance with the boundary that he managed to enter into the cadastre. Those. seizes part of your land, and even, it seems, on a legal basis.

Boundary dispute. The neighbor managed to carry out land surveying before you and grabbed part of your plot.

Prospect of dispute

You, of course, know that when surveying, your neighbor had to agree on the boundary with you (Article 39 of Federal Law No. 221-FZ “On Cadastral Activities”), but for some reason the determination of the boundary “passed you by.” You may have swiped the approval document without looking. Or you received a letter about land surveying in the mail, but you missed it. Or maybe you really weren’t notified about the land survey, contrary to the requirements of the law.

The question of whether there was a violation of the law when agreeing on the boundary is very important. But it is equally important whether the boundary entered in the cadastre corresponds to confirmed data on the actual boundaries of the plots that have developed over many years.

When resolving the dispute, the court will take into account the same circumstances as in Example No. 2.

NOTE! Even if you agreed on the border, and the data about your neighbor’s land was entered into the cadastre legally, this does not automatically mean losing the dispute, although it seriously complicates the work on such a case. A claim to correct a registry error can also be satisfied when the plaintiff has agreed on the disputed boundary.

Appeal ruling of the Nizhny Novgorod Regional Court dated July 17, 2018 in case No. 33-8238/2018
“The arguments of the complaint that the plaintiff does not have the right to demand changes in the boundaries of land plots that were agreed upon when concluding lease agreements (...) cannot be taken into account, since correction of a registry error does not entail a change in the actual boundaries of land plots agreed upon by the parties to these agreements, but has the goal of entering accurate information about the location of the boundaries of disputed land plots into the state real estate registration data.”

Are there boundary disputes not described in the article?

There are. You could write a book about boundary disputes, not an article.

What applies to public lands

In areas where private development is located, there are several land options:

state (municipal);
private;
common use.

Public land is necessary so that the owners (tenants, users) of land plots can freely use their lands.

In areas of frequent construction and garden plots, public lands include:

roads of all kinds;
territories where social and cultural objects are located (parks, public gardens);
plots designed to meet the needs of residents (common well).

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

Every owner, tenant, user and outside citizens have the right to freely use public lands. Any citizen has the right to demand restoration of his rights (not related to property rights) in the event of illegal seizure of common lands by third parties or neighbors.

What liability is provided for illegal occupation of land?

Upon your application, state inspectors for the use and protection of land will conduct an inspection and, if a violation is confirmed, they will issue an order to the violator to eliminate it, and will also draw up a protocol on the administrative violation.

According to Russian legislation, administrative liability in the form of a fine is provided for unauthorized occupation of someone else's land. For citizens, such a fine is assessed in the amount of 1 to 1.5 percent of the cadastral value of the occupied part of the land plot, but not less than 5 thousand rubles. If the cadastral value of the plot is not determined, the amount of the administrative fine will be from 5 to 10 thousand rubles.

What should you consider before filing a complaint?

Before filing a claim, it is recommended that you familiarize yourself with the nuances that you may encounter.

This will help save time and increase the chances of getting a positive result:

Before filing a lawsuit against a neighbor and accusing him of installing a fence in the wrong place, you need to prepare documents that will confirm this. If there are none, then the appeal will be considered groundless.
The construction of any structures, including fences, must occur in accordance with legal standards. The permitted distances between residential, household and business objects must be taken into account. Before installing a fence, you must have all the documents on hand that will confirm that it should be located in exactly that place.
If there are no papers for the plot (new land on which “cutting” has not yet taken place, no buildings, etc.), then they need to be made. To do this, you need to call specialists from a company who have a state license for this activity.

If everything is in order with these points, then you can begin to defend your boundaries.

IMPORTANT !!! Correctly, before installing a fence, neighbors must agree on it among themselves, taking into account all the documents. Before construction, it is better to sign the corresponding act, so that it does not turn out that the agreements were only in words, but were ignored in practice.

If it is not possible to come to a common opinion, then you need to contact a surveyor who will draw up boundaries with guaranteed accuracy.

In any case, the one who installs the fence must take into account that the fence cannot be erected strictly along the border indicated in the plans. According to the Building Codes and Regulations, the setback should be 0.5 m inside one’s own territory.

What decisions does the court make: a brief overview

In the Russian Federation, based on the results of consideration of such claims, the court most often agrees with the plaintiff’s demands and makes a decision obliging the violator to remove the illegally erected fence. This is clearly demonstrated by judicial practice. As for moral damage, even if the claim is satisfied, compensation is not always awarded. If the court upholds a claim for compensation for moral damages, the amount awarded is almost always significantly less than what was claimed.

Example

The Motovilikha District Court of Perm considered the claim for the demolition of the fence, filed by I. Sergeev against TSN “Kurya 1”. During the proceedings, he noted that after the discovery of a metal fence preventing access to part of his landholding, he tried to resolve the problem out of court. But the owners of neighboring plots refused to remove the fence.

During the consideration of the case, the defendant (a citizen representing the interests of the partnership) stated that TSN cannot be responsible for the demolition of the fence, since it was installed by the developer without transferring it to the balance sheet of the partnership. However, the court ruled that the territory where the houses of TSN members were located was fenced off. This means that the fence that violates the boundaries of the plaintiff’s land plot is in their possession. By a court decision dated June 20, 2018, I. Sergeev’s demand was satisfied. The Kurya 1 partnership filed an appeal, but the Perm Regional Court found no basis for re-evaluating the evidence and left TSN’s appeal unsatisfied (case No. 33-9501/2018 dated 08/07/2018).

What to do if a neighbor is blocking the road

Roads are considered public lands. And we are not just talking about major roads. Public lands are considered to be footpaths, boundaries, and paths. The seizure of such lands is also prohibited by law.

Occupying roads may prevent other neighbors from accessing their property or the passage of special equipment. This issue is especially relevant for large-sized equipment (fire truck, tractor).

According to the Civil Code, citizens must exercise their rights without violating the rights of other neighbors. Therefore, it is strictly forbidden to block the only road to the site, litter it with garbage or block it with a fence.