What to do about developer's damage to my property?

• I need help choosing the best course(s) of action to remedy damage done to my property by the developer next door. Summary The developer of the adjacent lot has not respected the boundary line and has damaged vegetation and structures on my property. The new house may not conform to required side setbacks because the exact location of the lot line is not well-established. I'm considering three options (which may not be mutually exclusive) for resolution: contacting the land development office, filing suit in small claims court, or hiring an attorney. Background I bought my house in the summer of 2002 in a established neighborhood where the majority of houses were built before 1930. The adjacent lot was heavily wooded with mature oaks but also overgrown with invasive wisteria and privet (possibly originating from a hedgerow along the property boundary). Unwilling and unable to fight through the overgrowth, I installed a simple welded wire fence on my clear side of the thicket to contain my dog. On the street was a wood-fenced garbage can storage area that I assumed to be on my property. I treated the lot boundary as extending perpendicular from the street at this enclosure. I have maintained the property to this line (which is about 6 feet beyond my fence), cutting overgrown shrubs, eradicating invasive wisteria, and removing storm-downed trees. The garbage can enclosure eventually deteriorated to the point where I rebuilt it in roughly the same area, though slightly smaller. I've had several conversations with the previous owner of the adjacent lots standing on this area of our properties, and he never once mentioned that either the original or rebuilt enclosure was on his lot. Last year a developer bought the lot and began clearing it in September. Issues 1. When clearing the lot, the crew did not have a clear understanding of the property line and removed trees and shrubs on my lot. I confronted them and explained that the boundary was several feet to their side of the wire fence, and they agreed to respect this vague line for the remainder of the clearing operation. 2. When excavating footings, the crew buried an original chert retaining wall on my property. This wall was also damaged during clearing and fill operations. During the fill operation, I spoke to the fill contractor, and he stated that the property line had been surveyed and was about 3 feet to their side of my wire fence and chert wall. He agreed to respect that line during his work. A different contractor excavated the footings and buried the wall along its entire length. I confronted the site supervisor in October, and he agreed to have his crew uncover the wall, but nothing has come of it. 3. When pouring footings, a concrete pump truck hit a railroad tie retaining wall on my property. The wall was significantly destabilized as a result. I came home one day to find the pump truck operator about to lower the truck's outriggers in my front yard. I explained that I wasn't okay with that, and I watched as he hit the wall while moving his truck. The concrete contractor agreed to repair the wall but has done nothing. 4. The new house does not conform the the 7-foot side setback stated on the building permit. The house may not conform to the 5-foot side setback required by city code. The house is less than 7 feet to my wire fence. Reasons behind the uncertainty in the 5-foot setback are twofold. One, the property line established by the developer's survey is not marked or was obscured by subsequent work. Two, I may have an adverse possession claim, as I have treated this strip of land as a part of my property, maintaining the vegetation and garbage can structures for over 10 years. The land I would claim extends to the side wall of the new house. Resolution Options 1. Call land development office, who is responsible for issuing building permits and enforcing codes. They may not be able to do much other and ensure a 5-foot setback from lot line as established by the developer. I'm not sure if the 7-foot setback given on the permit is binding. I don't know if this action could affect my other options. 2. File suit for damages in small claims court. The filing fees are manageable, and the damages seem clear-cut. I would have to place a value on the damage, but I would also like the settlement to provide for an independent survey to clearly mark the lot line. I imagine I would lose any adverse possession claim. 3. Hire an attorney and go all in on the adverse possession claim. This seems like a high cost with little chance of success option. I really don't have enough extra cash for more than a basic consultation, and certainly don't have the money to lose that suit.

• Answer:

  The developers are not going to pay/support your desire for accurate lot lines. You need to provide your own survey. If this was an official survey then the papers should have been submitted to the city, but if it was a local survey for the builders from existing property corners then there won't be additional papers. But then I'd assume you could find those same property corners yourself? My property was undefined on two sides (S & E), it only had the plot descriptions. The city had literally no idea where my property line was. The surveyors had to walk in measurements from a known geo location on the main arterial street, then they could locate my property corners. It cost me $2k, but was filed with the city and now I (and everyone) know exactly where my land is. Which leads to the next point... You can't claim they damaged your land/trees/wall unless you can prove that it's yours. If it's theirs (according to their own survey, which they trust much more than your vague claim) then they don't owe you anything. If your survey shows that it's your land, then you take them to small claims court and get it fixed, it should be that simple and quick (or offer to let them settle out of court). As for adverse possession, you need to check your local codes to see what's possible. In my city, citizens don't get adverse possession. My neighbor has been maintaining the back 5ft of my property for 10yrs (and for many years before I moved in), but it's still mine. One day I'll put a fence up and piss off everyone, but it's still my land - he can't claim it no matter how long he's been making it pretty. As for whether they're violating setbacks - you need to know where the property line is. You can submit something to the city to ask them to review the building and setbacks. At that point the city will check, and may ask the developer to provide a survey showing that everything is correct. (I had to do this, as the corner of my new addition is within 5" of the side 5' setback and the neighbors were raising a stink.) But then you wonder "how do they know where the property line is?" Usually, this setback survey/check was covered during initial layout of the foundation so those survey markers may be gone now and all you have is a signature in a building code checklist showing that everything was OK at the time of inspection. If you really want to be sure, you'll have to do your own survey. Only then can you proceed with other actions, everything hinges upon knowing exactly where your property line is.