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need advice as my new neighbor just knocked down my fence and said it was on his property

I have owned and occupied a multi-family house in Malden for 10 years and it has had a fence on the back and one side of the property for all of that time (and probably for a long time before I bought the house).
My next-door neighbor sold his house a few months ago and the new owner (who also owns a big building nearby) is now doing some renovations on the house. He had some workers doing work in the yard and the workers asked me if they could take down my fence on that side of the property. I said No. They did it the next day anyway and said their boss told them to.
There is a stick with an orange mark on it (on my property just inside where the fence was) and some other orange marks on the ground -- the new owner said that he had a survey done and found out that the fence was on his property. He also said that part of the fence was leaning toward my house and looked unsafe.
I was upset that he took down my fence and told him that. I also said I would have my own survey done. I asked him to not do anything further to my fence --- i.e., to leave the few remaining posts there that they hadn't knocked down yet. He seemed to apologize for not talking with me first, but he also seemed to say that he could not delay his projects for long. He also said it would not be good for me to consult a lawyer but that I could have a survey done.
(He has also asked me repeatedly for months to sell him my house and I have told him I am not interested in doing that.)
If I can find proof (perhaps from other neighbors) that the fence was there for a long time, do I have any right to keep my fence even if it was over the property line by less than a foot?
Since most of it was destroyed, would I be able to replace it?
Would I need to go to a real estate court?
Thanks for any advice.
Puzzled Landlord

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Submitted Fri, 04/21/2017 - 10:29

To begin with, have your own survey done. The legal actions to take in this case depend on whether your fence was actually on their property or not. If the fence is on their property, you do not have a right to keep it except in limited circumstances. Additionally, if it was really on their property, they could theoretically sue you for the cost to remove it. However, surveys are often mistaken by a few feet, so having a competing survey done is the first step.

If the survey does not reveal that the fence was on their land, you may be able to file a claim for adverse possession of the strip of land that your fence occupied. In order to be successful you would have to show that the fence (or another fence in the same place) had been in place for 20 years. This time doesn't have to be all when you owned the property, it can be when anyone owned the property. These cases can be expensive and require a lot of experts to do title work, as well as possibly tracking down previous owners, so you would need to decide if the few feet are worth it. If you do have an adverse possession claim, you still may not be able to pay to have the fence rebuilt because you waited to assert the claim. The simplest thing to do here is to rebuild the fence on "your" side of the line, but depending on the distance you may want to seek an attorney's help.

Atty. David Owens
Grolman LLP

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