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Legal Research and Writing - Spring 2020

Fact Pattern

Professor Tollman teaches Real Property at Hastings College of the Law.  On June 1, 2019 he purchased a home in the Berkeley hills with a panoramic view of San Francisco Bay.  After moving into his new home, Professor Smith met his neighbor, 89-year old Mrs. Wilson.  Mrs. Wilson has lived in her home since 1958, when she and her late husband built the house.

A run-down fence separated the Tollman and Wilson properties.  Professor Tollman approached Mrs. Wilson about sharing the cost of a new fence.  Mrs. Wilson agreed to split the cost. Professor Tollman decided to get a survey to find out the exact property line before building the new fence. 

The property survey showed that while the fence started out on the property line at the front of the house, by the time it reached the rear of the property, the fence was 6 feet onto Professor Tollman’s property.  Not only was the fence on his property, but a portion of Mrs. Wilson’s gazebo was also on his property.   Professor Tollman informed Mrs. Wilson of the survey and offered to pay to move her gazebo back onto her property so that the fence could be built on the actual property line. 

Mrs. Wilson told Professor Tollman that she did not want the gazebo moved and that she had changed her mind about sharing the cost of a new fence.  She said that she and her late husband had enjoyed many evenings sitting in the gazebo and watching the sun go down over the Bay, and no way was anyone going to touch the gazebo.  She also informed Professor Tollman that the fence was built by her late husband and had been in the same location for over 40 years without anyone complaining.

Professor Tollman contacted the prior owner of his property and asked her if there had been any agreement with Mrs. Wilson on the location of the property line.  She said she had not made any agreement with Mrs.  Wilson and had assumed that the fence was on the property line. She did say however, that she had only lived there for five years and did not know if the prior owner, who originally owned Professor Tollman’s house, had any agreement with Mrs. Wilson.

Because he is a Real Property professor at the Harvard of the West Coast, Professor Tollman knew there may be a legal problem if he simply moved the gazebo off his property and builds a new fence.  He also was aware of the old saying that someone who represents himself, has a fool for a client.  Professor Tollman has come to you for advice on how to deal with Mrs. Wilson.  He is prepared to pay a nominal settlement to Mrs. Wilson if she agrees to move the gazebo, but is also willing to file a lawsuit if they cannot reach an agreement.