DEAR BENNY: I purchased my home in September 2000. My survey indicated that my fence was encroaching on my neighbor’s property by 3 feet. My home was built in 1955, and I am the second owner. The 4-foot chain-link fence has encircled this property for approximately 40 years, and my neighbor (who inherited his home from his parents) indicated that he had no plans of erecting a fence because his companion is claustrophobic.

Recently, however, my neighbor and his contractor began constructing an addition to his home that will include a 6-foot wooden fence. Of course, now he wants his 3 feet back. His proposal is to move my fence over 3 feet, reset it, remove/replace my existing double gate with a single one at his expense, and would draw up a contract for both of us to sign.

DEAR BENNY: I purchased my home in September 2000. My survey indicated that my fence was encroaching on my neighbor’s property by 3 feet. My home was built in 1955 and I am the second owner. The 4-foot chain-link fence has encircled this property for approximately 40 years, and my neighbor (who inherited his home from his parents) indicated that he had no plans of erecting a fence because his companion is claustrophobic.

Recently, however, my neighbor and his contractor began constructing an addition to his home that will include a 6-foot wooden fence. Of course, now he wants his 3 feet back. His proposal is to move my fence over 3 feet, reset it, remove/replace my existing double gate with a single one at his expense, and draw up a contract for both of us to sign.

I went to both my city assessor’s office, and maps and surveys office. Both offices confirmed that my fence was on his property in the back of the house (3 feet) and that his fence was on my property in the front of my house by 3 feet. I did speak to him about this new development, telling him that I wanted an attorney to intercede on my behalf. Needless to say, he wasn’t too pleased with my decision. What can I do? –Francine

DEAR FRANCINE: You, or preferably your lawyer, should explain that he may lose the 3 feet based on the concept of "adverse possession." This means that if you have used someone else’s land openly and without permission, you can file a suit for adverse possession. Different states have different periods of time in which you have to use that property.

However, if you pursue this avenue, you run the risk that he countersues you claiming adverse possession of the property in front of your house.

I strongly suggest that you try to resolve this on a friendly basis. It may be that you will have to retain an attorney who can try to mediate an amicable solution. Perhaps each of you can give up a portion of your land. Otherwise, litigation may be your only recourse.

DEAR BENNY: We waited two years for a lake home’s price to go down and we finally bought the home in May 2009. We were also lucky enough to sell our existing home the first day on the market. In light of Obama extending the tax credits for first-time homebuyers, we also heard about a new credit for homebuyers. Will we qualify for this new tax credit? –Mary

DEAR MARY: I am afraid that you bought your home too soon. As I read the new law, called "The Worker Homeownership and Business Assistance Act of 2009," only consumers who buy another principal residence after Nov. 6, 2009, are eligible for the up-to-$6,500 tax credit. That was the date the law was signed by the president.

If you already own a home that you use as your principal residence, and have owned and used it as your primary residence for at least five consecutive years out of an eight-year period ending on the date you buy a new principal residence, you can claim this credit. …CONTINUED

But, you must buy that new home between Nov. 6, 2009, and April 30, 2010. However, if you are under contract by April 30, and can close (i.e., go to escrow) by June 30, 2010, you are still entitled to the credit.

The old law, which still remains in effect, gave the credit only to first-time homebuyers. The new law expanded the credit — although for $1,500 less — for homeowners who want to "move up" to another primary residence. It should be noted, however, that the purchase price of the new house does not have to be more than the sales price of the older house.

This new law will have to be tested and clarified. Discuss your specific issue with your own tax advisers.

DEAR BENNY: I just read your response on a question about publishing the names of delinquent owners. I served as our first treasurer since turnover of our 234 single-family-home association. I, too, was asked that question and responded as you suggest, deeming it a confidential matter.

Would there be any legal problem if the names of members in good standing were posted and kept current as payments are received? Those not on the list would then be considered in arrears. I can see a possible problem in which a delinquent owner pays before an updated list appears, causing him or her to feel falsely accused of delinquency. I guess I may have answered my own question, but would appreciate a response. –Les

DEAR LES: You are a brave man for serving as treasurer in your community association. Service on a board of directors is frustrating, time-consuming and without pay. But, it is your home and you want to make sure it keeps its value; that’s why most board members take the time to serve.

Yes, you have answered your own question. I support letting homeowners know who is delinquent with their association fees. But, as you suggest, there is risk involved. If you state in some public communication that, for example, "Mary Jones owes the association $350," what happens if Mary just paid the money? She has been defamed and could sue the association for libel.

So whether you post the names of delinquent owners or you post the names of current owners, you have to make sure that you put a date on that published information. I see nothing wrong with saying that "as of Dec. 31, 2009, Mary Jones owes $350. Even if she made a payment the next day, your publication was accurate.

More importantly, however, every association should adopt a zero-tolerance policy about delinquencies. If an owner is delinquent for more than 30 days (or whatever the legal documents state) immediate collection efforts must be taken. Of course, the board can consider hardship cases on a "case by case" basis. …CONTINUED

DEAR BENNY: My contractor still has many small jobs to finish with our house. If he doesn’t do these jobs that we’ve already paid him for, what are my options? I am completely frustrated with our contractor. –Rex

DEAR REX: I hope this will be a lesson for homeowners who hire contractors for remodeling or other work in their house: Make sure that you hold back 10-15 percent of the total job until (1) the work is completed, (2) you are satisfied with the job, and (3) the contractor gives you a release of liens signed by the contractor and all subcontractors. Although there are forms for this release of liens, you can just prepare a statement saying that all payments have been made and have it signed by everyone.

The first thing you should do is determine whether the contractor is licensed as a home improvement contractor in your state. Many such laws state that if a contractor does not have a license and takes some money up front, he must give back all of the money you’ve paid, regardless of how good the job is.

Next, talk with the contractor and see what the problem is. Give him a deadline to complete the job, and tell him that you will have to terminate him, get another person to complete the job, and sue him for the difference between what you paid him and what you may have to pay another contractor.

If you are dissatisfied with his work, try to find a consultant who will inspect the work. If it is determined that it is not up to quality standards, again tell your contractor that you will have to sue him if he does not immediately make the necessary corrections.

Unfortunately, it may be that your only remedy is to file suit. But litigation is time-consuming, expensive and always uncertain. Sometimes it makes more sense to tell yourself that you made a bad deal, fire the contractor and complete the job with someone else.

One more suggestion: Many contractors ask you to sign what I call a "two-page special" contract. It merely states in general terms what work will be done and how you will pay for this work. If you are planning to do a job that costs $25,000 or more, I recommend that you insist that the contract be on an American Institute of Architects (AIA) form. The AIA has a number of balanced form contracts that contain a lot of consumer protections. You can find the AIA on the Internet at www.aia.org.

Benny L. Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.

***

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