Expert: liznarr - 8/15/2009

Question
According to the developer's survey, our fence encroaches 9 inches across their property line.  The fence has been there for 32 years.  Are we required to take it out, along with sprinkler and underground draining pipes or is there another remedy?

Answer
Hi Anita,

You should consult with an attorney for legal advice on this matter, but I will give you a general answer.  

For whatever it might be worth, ask your attorney about the legal principle of adverse possession, wherein if someone uses another’s property CONTINUOUSLY for “X” number of years (different states can have varying time periods, and the period can be by successive owners) – and the use is open (not hidden), hostile, and without the owner’s permission; one could apply for legal title to the property having been used.  

If the neighbor ever gave permission for the use of the nine inches of property, that would negate any adverse possession claim – at least start the period over again in the event of a new owner after having given permission.  Here is a link where you can read a bit about adverse possession:
http://www.expertlaw.com/library/real_estate/adverse_possession.html

Another remedy for you would be to ask the neighbor whose property is encroached upon if they object to the fence staying where it is, and if they will also allow the sprinkler and underground pipes to stay in place – unless and until either might cause them a problem.  You mentioned a “developer,” so I’m wondering if your property might back up to a tract of land that has recently been sold.

Legally, I believe the fence might now belong to your neighbor, and you would want to get the neighbor’s permission should you ever want to take it down.  On the reverse side of the coin, the neighbor could take the fence down (possibly having to give Notice to you first), leaving the area open; and you would then have to put a fence on your own property if you wanted a completely enclosed area.

If you are on good terms with the neighbor, the best solution would be for him/her to give you an easement for the use of the property during your ownership.

Good luck to you, and feel free to write again if you have additional questions.

Regards,
Elizabeth