Drawing Lines in the Sand

August 19, 2012 10:18 AM

My neighbor built her fence on my property. Many many years ago. Is it too late to do anything about it?

Many years ago, in the nineties I think, my neighbor built a fence eight inches on our side of the property line. I believe the debate at the time between neighbor and my grandparents was, if neighbor was gonna have to pay for the entire fence herself, she was damn well gonna take a little extra real estate for herself at the same time.

As a grandchild I remember this coming up over, and over, and over, as a sore point between my grandparents and the neighbor.

Since that time, my grandparents have died, my neighbor has died, I have inherited the house, and a construction crew is coming by this week to demolish my neighbor's house.

I don't so much mind having the fence up, and I don't so much mind losing a measly eight inches for the privilege, and I have informed the architects/designers/builders of the new house of the situation. My only concern is that they are going to build the new house TOO CLOSE to mine, while disregarding this ages-old Eight-Inch dilemma.

So, have I technically lost and/or thrown away eight inches of my own property if I don't fight this, now, __before__ the permits get through at City Hall and the new home is built?

Also, do I have the right to tear down the fence at any time, since it was built on "my" property? Or, did I give up those rights long ago after some seven-year period since the fence was built?

posted by shipbreaker to home & garden (18 answers total)

You need to talk with a lawyer in your jurisdiction about adverse possession to find out whether you actually own the disputed property.
posted by decathecting at 10:23 AM on August 19, 2012 [4 favorites]

I'm sure everybody's going to say hire a surveyor and a lawyer, but... have you talked to the new owners at all? Because my parents just went through the exact same thing, and resolved it by sitting down with the new owners. My parents showed what the surveyor they hired determined, the new owners showed what their surveyor determined, and both sides came to an agreement that was beneficial to both. In our case, we gave up the couple of feet and they agreed to do some erosion-control planting. Both sides are happy.
posted by BlahLaLa at 10:31 AM on August 19, 2012 [1 favorite]

I would do a combination of the above two things: 1) figure out what your legal rights are (they vary by state and particular facts) to facilitate 2) a discussion that hopefully resolves the issue amicably.
posted by *s at 10:33 AM on August 19, 2012

I agree. The first two answers are both right. You should talk with a lawyer about the issue. You don't have to hire him if there is not going to be a dispute. Then talk with the new neighbor.
posted by yclipse at 10:36 AM on August 19, 2012

I think it cost us $150 $200 to hire a surveyor to figure out our property lines. You could just take over the final drawing you get from the surveyor and talk about it friendly-like with your new neighbors. You'll want to start off on a friendly note, I imagine.
posted by LilBit at 10:44 AM on August 19, 2012 [1 favorite]

Yes, get a survey of the actual property boundaries. There may even be an old one on file at your city hall (or equivalent municipal establishment).
posted by mon-ma-tron at 11:25 AM on August 19, 2012 [1 favorite]

That's not so many years ago, depending on where you are. Adverse possession of a property only takes effect after 40 years in some jurisdictions (though much less in others), and may depend on the system that your jurisdiction uses to register land titles - in Ontario, for instance, there is no longer adverse possession for land that is held in the land titles system. You need to talk to a real estate lawyer pronto, get a survey done, and get a letter to your neighbours setting out where they can legally build.
posted by Dasein at 11:35 AM on August 19, 2012

Fence and boundary law vary enormously from state to state. (For instance, not all states have a concept of adverse possession.) While you can get general advice here, you'll need to specify in which state you are in (or country, if not U.S.) in order to get specific, actionable guidance.
posted by waldo at 12:04 PM on August 19, 2012

There's also this line of thought::

She did pay for the building of the fence, which both families get to "enjoy". The new architects and design-builders are going to be paying a lot of money ((35K)) to knock down her old house, and are also going to pay a lot of money to subcontractors and builders and such to build the new house. That, in turn, will make the property value of their house and land go up, and slowly, over time and via City-Hall osmosis, the value of my house-and-land will also go up, to the tune of several tens of thousands of dollars.

And so, if I just shut up and be cool about it, it all works out great for everyone.
posted by shipbreaker at 2:51 PM on August 19, 2012

The problem with just keeping quiet is that the issue is not resolved. That just kicks the can further down the road. The lawyer you speak with will likely tell you that the fence line and the possibility of an adverse possession claim is a cloud on your title and that it will create difficulties if you want to sell in the future.
posted by yclipse at 4:31 PM on August 19, 2012 [1 favorite]

Oh, and he may suggest that you apprise the building inspector of the 8-inch issue before permits for new construction are issued.
posted by yclipse at 4:35 PM on August 19, 2012 [1 favorite]

I don't get your logic at all. Fixing this isn't going to stop them from building a new house.
posted by Dasein at 5:04 PM on August 19, 2012

they're not trying to stop them from building a house. they just want to make sure the legal setback from the property line is observed by the ACTUAL PROPERTY LINE and not where the fence is.

I'd hire a land surveyor and take that report to the builder/owner of the adjacent property. They should pay for the expense of tearing down the existing fence, and if they still want one, they should build a new one on the correct property line. If that doesn't work, lawyer up.

Your grandparents should have sued that stupid neighbor years ago. No neighbor has the right to demand any sort of payment for fencing that they themselves want installed.
posted by wwartorff at 6:56 PM on August 19, 2012

they're not trying to stop them from building a house

I get that. I'm saying that if shipbreaker wants this house to get built so that his property values go up in the long term, then dealing with this issue of the lot line doesn't stop that from happening. There's no downside to him dealing with this now; there's only downside to not dealing with it, and ending up with a smaller lot through adverse possession down the road.
posted by Dasein at 7:05 PM on August 19, 2012 [1 favorite]

What we did: you get a surveyor to come out, then you build your own fence on the correct property line, and you tear down the old fence. Done.
posted by nanook at 7:29 PM on August 19, 2012 [2 favorites]

Neighbors who are awesome can turn into The Rotten Beasts from Hell Living 10 Feet Away... we know... it happened to us. Your grandparents paid for that dirt. Get your own survey... and get that fence off your property. You may be sorry one day when you don't.
posted by brownrd at 7:50 PM on August 19, 2012 [2 favorites]

If the new owners just bought the house, they have a survey on record at the county office. Go take a look at it, and take a look at the one the county has on file for you. That's how your property taxes are determined, most of the time. (Depending on your jurisdiction, you may have been paying increased property taxes because that fence is an "improvement" on your property. And you are certainly paying property tax for property which you don't currently access, since it's on the other side of the fence.)

If the maps are in agreement, but not in your favor, then it's time to consult a lawyer about your rights. Make sure you have the deeds/maps in hand before you go see her/him. (And any old paperwork that shows a different lot survey.)

If the map are in agreement, and the fence is clearly almost a foot into your property line, then you should probably ask the owners to either move it to their property, or remove it all together. As to who is legally responsible for doing said removal...I dunno, that's what lawyers are for. You should call the Bar Association in your area and ask them to set you up for a consultation. They are usually free, and if you're prepared and don't waste time; a lot of advice can be gleaned in a short period.

If the maps don't agree, then it's time to bring in the county surveyor, because something has gone wrong somewhere, and you may be able to request that the county send a team of surveyors out to flag the property lines where the the tax records say they should be, if there is a dispute.
posted by dejah420 at 9:35 PM on August 19, 2012 [1 favorite]

This may be in the past, but I just want to add that, regardless of conversations with the city, at some point, someone is going to take a measurement off of that fence. The city inspector will confirm it meets the setback most likely just by measuring from the fence. Even if the architect's plans show that the side stairs should start 10' 8" from the fence, then when someone rebuilds that staircase in 10 years, they may well use that extra 8" to meet some future wide-railing requirement. I'd start budgeting to replace that fence.
posted by slidell at 9:02 AM on August 26, 2012