Ask the Law Guy

Last fall the neighbor behind us built a hideous shed that is two stories high with a window on the second “story”. It is less than 6 feet from our back chain-link fence. This is bad enough, but I wasn’t going to complain about it. However, last weekend when the weather warmed up he and another adult friend had chairs up on the second story and were sitting with a perfect vantage point right into our backyard. This window is only looking down into our backyard and nothing else. I am very uncomfortable with this. Is this legal? First of all, should he have had a permit to build this huge shed, and secondly, is it legal to have this window so close to our fence to look down directly on us?

Yes, your neighbor probably needed a building permit for his shed. But provided he complied with setback rules, zoning and building codes I can't think of anything that would prohibit him from having a window that looked directly into your backyard. If you decided to, you could put up a barrier that would obstruct his view. Maybe a few Leyland Cypress. It is illegal (in North Carolina) for a someone to "peep" secretly into a room occupied by a another person. So if he used the window for secret peeping he might be committing a crime. But a backyard is not a "room."

I can understand why this makes you uncomfortable. You might try calling a code enforcement department and see if the building had a permit (permits are public record). If there was no permit and a code inspector found a violation (violating a setback rule, for instance) the inspector could require it to be corrected.

I have a business ... which has a gate around almost all of it. On one end there is an opening that cars have been coming through, to spin donuts on our ball field in back. So I put up a barricade to try to stop this, and they just moved it, or found a way to drive around. So I put up no trespass signs, and put the barricade. But this time I put spike strips down to stop them before they started. A young guy came through the barricade in a big truck and run over the spikes and got four flat tires, and now wants to sue me for the tires. Should I pay him, or take him to court?

Interesting question with no simple answer. While a property owner has the right to exclude others from his property and even use reasonable force to prevent someone from entering his property, in general you cannot set traps to catch trespassers. The court might find that the spike strips (with no warning that they were present) were a trap. That means you would be responsible for the damage to the tires. Think about it this way: a landowner might decide to put up an electrified fence to keep out trespassers, but if the fence was not marked with signs, the owner might be liable for injuries to someone touching the fence.

By trespassing the driver was also breaking the law. He could be prosecuted for trespassing and you could sue him in civil court. However in a lawsuit for trespass you would only be entitled to nominal damges ($1 or so) unless you could show actual injury to your property.

I think right is on your side, but the law favors the trespasser. So if I were the judge for your case I would rule that you had to pay for the damage to the tires, but unless the tires were brand new I would not hold you responsible for the full value of new tires. I would rule that the trespasser owed you $5 for trespassing and I would order him not to enter your property in the future.

Remember though small claims court is about "rough justice." There is very little argument about the fine points of law. A friend once told me that actual legal precedent carries about as much weight as a comic book in small claims court. If I were you I would wait and see if he goes to the trouble to sue you. Many people don't bother. If he does sue, counterclaim for trespass. Then offer to pay for repair of his tires or the cost of used tires.

I was recently given a first degree trespassing ticket in Asheville, NC. The land was University of North Carolina property as far as I know and civilians regularly walk their dogs, ride bikes, and jog on the property, with no knowledge that they are supposedly trespassing. I am not a student and have never been on the property before. I walked there with a friend because occasionally students have gatherings and small fire on campus, which was the case this time, and they usually do so with a permit. I thought this was such a case and left the gathering after 20 minutes to go home and sleep.

I was detained at a low gate across the road which apparently marks the property, although it seems only intended to keep cars out. There are no signs posted and there is a clear dirt path along the road, as people walk there daily. The property is at an intersection with a residential road and I was detained only 5 feet from that road, on my way out. There are no structures on the property, besides the road and a sidewalk. Otherwise there are trees and grass. I was detained with 24 others for 3 hours, from 12 am to 3 am, outside on site.

I was never given a warning or option to leave, although I asked. In fact I was forced to stay against my will. When the police stopped me I was on my way home and only feet from a public road. I have never had such a charge or warning before and if I had seen any signs or such indications that I should not have been on the property, I would never have gone there in the first place. I do not understand why I was given a first degree trespass charge instead of a warning or a second degree charge.

I have a court date in 2 weeks and must decide what to do. I have considered creating a petition to be signed by those who regularly use the property as well as contacting university administration and the media. I feel there should at least have been some indication that I should not have been on the property, but apparently there is none and people go there all of the time.

The students who were there that night were only given university citations and when I talked to the university police they said the charges would likely dropped. But because I am not a student I was given a formal first degree trespassing charge by city police. Please help me to figure out what to do. I don't know enough about the legal system to make a decision alone and I feel quite disoriented and vulnerable.

First of all, you are going to need a lawyer. Even misdemeanor convictions can have bad consequences.

The State has to prove the following to get a trespass conviction:

An unathorized person
entered or remained in a place
that the premises was enclosed or secured to demonstrate an intent to keep out intruders.

If the place is outside the area would have to be fenced or marked with signs. It is trespass to remain in a place after the owner tells you to leave or returning after being told not to return to the property. Unless the State can show that the campus had "no trespassing" signs, was fenced off or you had been told to leave, I think you should be found not guilty. Remember, don't try to handle it yourself.

I bought a car last year in February by getting a loan from a bank and the payments were deferred for a year. In the meantime I received the car title from the state, instead of the bank receiving it. The title shows me as the owner of the vehicle, however there are no lien holders listed on the title. Does this mean I am the outright owner of the vehicle? I know the ethical thing is to pay the bank, however I was wondering what the law said about it?

I have not looked at the promissory note you signed, so I'll have to give you a general answer. You will have to pay or the lender can repossess.

Most auto finance agreements create a debt secured by a lien. The borrower agrees to pay the lender a certain amount of money (the debt) and grants the lender to right to repossess the car in the event of a default in payments (the lien). Debts in which the lender does not have the right to repossess specific property are unsecured debts.

Through some error, you received the title to the vehicle and it appears that the lender has not perfected its lien by noting it on the title or with the DMV. I don't believe that relieves you of the obligation to pay the debt or the bank's ability to repossess. Perfecting a lien is a method of giving innocent purchasers notice that a piece of property is encumbered by the lien. Maybe this illustration will help:

Ezra buys a car from Frank. Friendly Auto Finance loans Ezra $7500 for the purchase and the promissory note (the document that contains the information about the debt) provides that Friendly Auto Finance can repossess in the event of default. Ezra receives the title and sees that Friendly Auto did not note the lien claim on the title or record it with the DMV. Ezra refuses to pay and Friendly Auto (now more angry than friendly) sues Ezra. The judge will tell Ezra that he and Friendly Auto entered into a binding agreement for a loan and lien and tells him that he must pay or the judge will allow Friendly Auto to repossess and Ezra will still be responsible for the full $7500 less whatever the car brings at public auction.

Now change the facts slightly:

Suppose once Ezra got the title, he decided to sell the vehicle to Oprah. Oprah pays him $6000 after first checking DMV records to see if Ezra has clear title. Since Friendly Auto failed to perfect its lien, DMV records do not show any lien. Ezra than refuses to pay and Friendly Auto sues Ezra and Oprah. The judge should rule that Ezra still has to pay the loan from Friendly Auto, but since Oprah is an innocent purchaser who bought the vehicle after making a reasonable inquiry to determine if there was a lien she will not lose the car. By failing to record and perfect it's lien Friendly Auto lost its right to recover the car. If Friendly Auto had recorded it's lien, Oprah would have to pay off the lien to keep the car.

My fiance and I recently bought a house built in 1998/1999 on 1.35 acre plot of land next to an old farm house. We had the property surveyed because we are putting in a fence to contain our 3 dogs. There is a very old rusty (dangerous) fence between our land and the 3 acre plot the old farm house sits on. Our surveyor told us that the old fence is 8 feet on our side of the property line at the rear of the yard and it continues to the front (road) in a pie shape with the fence at the road on our property by only a few inches. We want to put the fence in at the rear approximately 1 foot on our side of the property line and take down the old fence. This stretch runs about 600-700 feet from the back of our property to the road. We are putting in about 300 feet of fencing along this stretch. Currently one mentally disabled sibling lives in the old farm house, so we called the sister and brother of the man living in the house to discuss our plans. They came over (they are both in their ~70's) and we explained that we are putting up a much nicer fence and want to put it closer to the property line and remove the old fencing. We also ensured that we would tie in the old fencing where the new fencing stops. They questioned why in so many years the property line had not been brought up and we simply said probably because this house is new and this lot was vacant until our house was built 7 years ago. They said well ok you have to do what you have to do, however in the last week they have spoken to "people" and want to come out and look at the lines and get "something" (I don't know what something is) in writing. Of course we agreed, my finance will be meeting with them again this weekend to discuss the situation. My question is: do they have squatters rights? They grew up in that house so it has been there for well over 50 years and the old fence appears to be almost that old.

The legal term for squatter's rights is "adverse possession." Since adverse possession is defined pretty well here (Wikipedia entry), I'm not going to explain it again here.

If the land has been exclusively occupied for the required period, your neighbor has a potential claim to title. Since you have a deed and survey, I would take the position that you have the right to remove any encroachments. So unless the "something" your neighbor gets is a court order, you can install the fence on your side of the property line. Before spending a lot of money on fence construction, you should consult a local attorney.

My brother co-signed for my sister for a used car in May 2005. In September 2005 she was having some financial problems and she missed a payment. My brother made the car payment and she paid him back. She has since made the payments herself and spent $2000.00 on car repairs. In February 2006 she had problems with her mail being delivered to her and didn't get her disability checks. She was 20 days late on her February payment and her March payment wasn't due yet. My brother was contacted by the lender and he paid February's payment and March's payment even though my sister never asked him to. She told him she would pay him as soon as she got her mail figured out. He went to her house in the middle of the night and took the car, without notifying her of his intentions. My question is, is this legal? Since she has made the payments, and this payment was not even a month late. Plus all the money she spent in car repairs and insurance.

If the car is titled in both names each party has an equal right to possession of the car. If the car is in your sister's name only, your brother has no right to take the car. However before you take this situation to court or involve the police, you all need to make a serious effort to work this out among yourselves. Keep in mind a few things:

After a missed payment the lender has the option to declare the entire balance of the loan due immediately,
If the payments aren't made, the lender will be entitled to repossess, then there will be no car to fight over,
After any repossession and your sister and brother will be responsible for the unpaid balance following the sale of the car.


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