ᐅ 4.5 cm less than the required setback distance – garden wall
Created on: 14 Oct 2019 21:25
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4MotionHello everyone,
A landscaper built a wall for us. According to the so-called "swing right," the wall must be built with a 50 cm (20 inches) distance from the property line if it borders agricultural land. The landscaper should actually have known this. I also mentioned it to him several times during the discussions. Unfortunately, he didn’t take it seriously. On one side, the distance is now about 55 cm (22 inches), and on the other side only 45 cm (18 inches).
I didn't expect him to mismeasure by that much, nor did I expect the builder to object to a 5 cm (2 inch) difference. Both happened. The wall has already been paid for as the first installment of further work. One more installment is still outstanding.
The landscaper is basically a reasonable person to talk to. However, he says he won’t change anything for a 5 cm (2 inch) difference because the property markers are inaccurate anyway. The builder is rather unwilling to negotiate or mediate.
1. How could this situation theoretically proceed? That is, regardless of what is reasonable, what options exist?
2. And now: What would you do?
A landscaper built a wall for us. According to the so-called "swing right," the wall must be built with a 50 cm (20 inches) distance from the property line if it borders agricultural land. The landscaper should actually have known this. I also mentioned it to him several times during the discussions. Unfortunately, he didn’t take it seriously. On one side, the distance is now about 55 cm (22 inches), and on the other side only 45 cm (18 inches).
I didn't expect him to mismeasure by that much, nor did I expect the builder to object to a 5 cm (2 inch) difference. Both happened. The wall has already been paid for as the first installment of further work. One more installment is still outstanding.
The landscaper is basically a reasonable person to talk to. However, he says he won’t change anything for a 5 cm (2 inch) difference because the property markers are inaccurate anyway. The builder is rather unwilling to negotiate or mediate.
1. How could this situation theoretically proceed? That is, regardless of what is reasonable, what options exist?
2. And now: What would you do?
Who determined and documented the setback distance, and how?
First, the builder is responsible for proving the setback violation. If boundary markers are present, this is not too difficult. Anyone questioning the boundary markers must pay for a survey to verify them. If there are no markers, the builder could ask you to share half the cost of marking the boundary according to §919 of the Building Code.
If it turns out that the setback violation does exist and you cannot reach an agreement, a court will have to decide.
I would offer the builder compensation based on the price per square meter of the agricultural land (5€/m² (about $0.55/ft²)).
First, the builder is responsible for proving the setback violation. If boundary markers are present, this is not too difficult. Anyone questioning the boundary markers must pay for a survey to verify them. If there are no markers, the builder could ask you to share half the cost of marking the boundary according to §919 of the Building Code.
If it turns out that the setback violation does exist and you cannot reach an agreement, a court will have to decide.
I would offer the builder compensation based on the price per square meter of the agricultural land (5€/m² (about $0.55/ft²)).
H
hampshire14 Oct 2019 22:06Well, it seems the builder took the time to measure again. Land often stirs up emotions. I’m curious to see how you will satisfy Schwengel.
In the case of a troublemaker, a new survey is definitely advisable. The landscape gardener will probably have to rebuild the wall. Very frustrating for him.
In the case of a troublemaker, a new survey is definitely advisable. The landscape gardener will probably have to rebuild the wall. Very frustrating for him.
hampshire schrieb:
Well, it seems the farmer took the trouble to re-measure. Land is often a sensitive topic. I’m curious to see how you can satisfy the stubborn one.
With a troublemaker, a new survey is definitely a good idea. The landscaper will probably have to rebuild the wall. Very frustrating for him. Are you sure? Even though I’ve already paid and basically "accepted" it?
A new survey will most likely side with the farmer. There are boundary stakes in the ground. Measuring from the center misses about 5cm (2 inches), from the outer edge about 2cm (1 inch).
Although I like the landscaper, right now I am more annoyed by his inaccuracy than by the nitpicky farmer.
Escroda schrieb:
Who determined and documented the setback distance, and how?
Initially, the builder is responsible for providing evidence of the setback violation. If boundary markers are present, this is usually straightforward. If someone questions the boundary markers, they must pay for a survey to verify them. If no markers exist, the builder might ask you to cover half of the costs for marking the boundary according to §919 of the Building Code. If it turns out the setback violation actually exists and you cannot reach an agreement, the matter will have to be decided in court.
I would offer the builder the price per square meter for farmland (5€/m² (about $5.40/ft²)) as compensation. At 20 meters (65.6 feet) in length, the builder would lose 0.5 square meters (5.4 square feet). I doubt they will settle for €2.50 (about $2.70).
I would first check whether the right of passage (Schwengelrecht) still applies. Here in Saxony, the law states:
§ 7 Distance from the boundary
(2) The obligation according to paragraph 1 [right of passage] expires if one of the two properties is part of a continuously developed neighborhood or designated as building land in a development plan.
We had the same question when we wanted to build our fence. Fortunately, our neighbors here are not very strict. However, our land was designated as building land shortly afterward. So, in our opinion, the right of passage is no longer valid. It might be similar in your case.
§ 7 Distance from the boundary
(2) The obligation according to paragraph 1 [right of passage] expires if one of the two properties is part of a continuously developed neighborhood or designated as building land in a development plan.
We had the same question when we wanted to build our fence. Fortunately, our neighbors here are not very strict. However, our land was designated as building land shortly afterward. So, in our opinion, the right of passage is no longer valid. It might be similar in your case.
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