Can you remove survey stakes/markers?

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Latest post 04-18-2006 2:13 PM by DPH. 6 replies.
  • 04-17-2006 8:25 PM

    Question [=?] Can you remove survey stakes/markers?

    I've decided to install a fence on my property in MA. so I started staking my boundaries (I had a survey done last year so I know its accurate). I found out two things so far... (1) My neighbors fence is on my property by 2-4 feet in depth onto my land and about 10-15 long spread (it also shows the encroachment on the survey). And at one corner of my lot, there were two stakes, 1 older which was existing, and another stake resembling all of the other new ones, the older one is 4-5 feet closer to my property, the newer closer to his. I decided to tie off to the older one just in case, I'd rather be more onto my property than have my neighbor accuse me of over-stepping on to his land. I found out the one closer to his land is mine, and when I went to correct my line, i noticed he removed my newer stake. So, my questions are (1) is it too much work to deal with a lawyer to have him remove his fence so I can claim my land back (he won't cooperate for sure), and (2) is it illegal to remove a survey marker? Keep in mind this neighbor has been nothing but a headache since he's lived here. I tried to keep it short, thanks for reading. -T
  • 04-17-2006 10:39 PM In reply to

    re: Can you remove survey stakes/markers?

    "(1) is it too much work to deal with a lawyer to have him remove his fence so I can claim my land back"

    If he is using your land with your knowledge, but without your permission, that is one of the necessary steps to your neighbor claiming adverse possession against you. That in itself shouldn't make for a successful claim, but is the first step. Your neighbor likely wouldn't be willing to spend the money for an a.p. claim since it would probably cost him more in legal fees than the land is worth, but is something to think about. How important is it to you?

    "(2) is it illegal to remove a survey marker?"

    Yes, it is a misdemeanor in every state; however, you have to be able to prove it. Unless he formally confesses, you have it on video tape, or have a witness willing to testify, you can't prove it. However, if you inform him of the illegality of it, you don't have to inform him about proof, or lack thereof.

    I would spend a couple hundred bucks consulting with a real estate attorney before constructing my fence.
  • 04-18-2006 10:55 AM In reply to

    Idea [I] re: Can you remove survey stakes/markers?

    Well, I'd realistically be losing about 30 square feet, I know it isn't that much, but in the grand scheme, it is my land. I know the fence has been up for awhile, and that the neighbor hasn't tried to claim a.p. (theres nothing on file @ our local reg. of deeds). I think my problem is (1) the guy has given me nothing but problems during building (this is a new house that was built in '04-05) setting me back 6 months building being held up in town hall, etc. (2) he removed the survey marker the same day I staked out my fence, under my nose of course He took advantage of me tying off to the wrong stake, he assumed right away that was his free ticket to gain a little more property, thinking I made a mistake and didn't know my actual property line. How about this, if I put in a fence on my property line, it would in essence engulf his 10 foot section (its on my land) could I do that and then remove his section once mine is up? or does he have some kind of rights
  • 04-18-2006 11:41 AM In reply to

    re: Can you remove survey stakes/markers?

    If you for a fact his fence is on your property, you can legally remove the portion that is on your property.

    I would still consult with a real estate attorney first. A letter to your neighbor from an attorney can go a long way.
  • 04-18-2006 2:13 PM In reply to

    • DPH
    • Top 10 Contributor
    • Joined on 10-08-2001
    • TX
    • Posts 7,541

    Feedback [*=*] re: Can you remove survey stakes/markers?

    Be very careful before removing your neighbor's fence. I had a very similiar situation at my house and did exactly that, resulting in two years of lawsuit, surveys, etc.

    A couple of thoughts...

    1) Your neighbor may have a survey that differs slightly from yours. Unless you'll can agree which one is correct (not likely) it would likely take a lawsuit to figure it out. This will not be cheap, trust me.

    2) Your survey may be 100% complete, but you might not be able to prove it. In my case, my neighbor introduced her own NEW survey and clouded the issue. Even though we could "prove" mathematically that her's was wrong, our attorney pointed out that we still would have to convince a judge (also not very likely).. In other words, we could hae been 100% right and still lost in court.

    3) We ended up in mediation (required by the courts here in TX) and the mediator was able to convince our neighbor that she had a pretty good chance of losing and to work on a compromise. We ultimately gave her an easement that was about 60' long X 6 - 10 inches wide.

    4) We also have two fences back to back as she would not agree on the type of fencing, etc. I have a chain link and she has a wooden privacy fence. Great for me as my dogs can't get out and I don't have to look at her.

    5) In Texas, and may be some other states, a fence is not considered a permanent structure and would not come into play on an adverse possession claim.

    Good luck

    "Never argue with stupid people, they will drag you down to their level and then beat you with experience."  -  Mark Twain


  • 04-18-2006 9:25 PM In reply to

    re: Can you remove survey stakes/markers?

    My advice to you is to obtain a copy of your adjoiners survey in exchange for a copy of yours. Take your adjoiners survey to the surveyor who surveyed your property and ask him to explain.

    Without further details, I can't comment.
  • 05-18-2006 6:16 PM In reply to

    • PLS
    • Not Ranked
    • Joined on 10-31-2002
    • Posts 3

    re: Can you remove survey stakes/markers?

    I'm afraid you may misunderstand your survey. A new survey is no better an indication of the line than an older one, sometimes worse. The idea is to survey the original line wherever it was run. What you may have is a professional difference of opinion on the location of the original line if in fact the other stake represents another survey. When your survey shows a fence line at variance with your survey line that is an indication of a possible problem. Your surveyor reported the problem on the survey. I would question your surveyor why the older stake was not reported along with the fence. He may want to revisit the survey if the stake was missed or he may know of it and hold his opinon. Either way, he should explain why he did not agree with the older stake or report it.
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