When a neighbor's fence encroaches on your property, you have several available choices. Most involve reasonable and relatively painless compromises, but if all else fails you may have to sue.
Establishing the Property Line
Before proceeding, you need to know the exact location of the property line. In some instances, unambiguous markers from an earlier survey establish that. In most cases, you'll need to hire a legally registered surveyor to establish and mark the actual property line.
Establishing the Date of Encroachment
You also need to know when the encroachment began. In many instances, the encroachment may be recent, which is why you're now concerned. If so, the encroachment date will not be an issue.
In a few instances, the encroachment may have been long-standing. This is where establishing when it began becomes important because eventually any unopposed encroachment entitles the encroaching party to claim a right of adverse possession. In these instances, you may be able to find photos that establish when the fence was first built. Even if you can't find evidence of the date of initial encroachment, you can take some comfort in the fact that if you eventually go to court over this issue, it becomes the encroacher's responsibility to establish an initial encroachment date that justifies the claim of adverse possession, not yours to prove that it does not.
What Is the Law of Adverse Possession?
The law of adverse possession entitles a trespasser on property to claim and then own that property if certain conditions are met. These requirements, especially time requirements, vary from state to state. A list of state by state requirements is included in this article's resources section. But the essential requirements in nearly every state are these:
- The possession must be "hostile." What "hostile" means legally differs from state to state. In every state a deliberate and knowing encroachment qualifies. Some states allow unintentional or unknowing encroachments to qualify as well. A few states allow any encroachment to qualify as "hostile," without regard to the encroacher's intent.
- The possession must be "actual." Building an encroaching fence fully qualifies.
- The possession must be "open and notorious." Again, building an encroaching fence fully qualifies.
- The possession must be "exclusive and continuous for (some qualifying period of time)." The qualifying period differs from state to state, but this is the requirement that undoes many adverse possession claims, because contrary to some popularly held opinion, the qualifying period in most states ranges from a minimum of 10 to 20 years. A few states, California among them, allow a shorter period, but with that shorter qualifying period add other necessary qualifications, such as the payment of taxes on the property or the presentation of a valid deed, both of which usually disqualify an encroaching fence.
In some exceptional cases, all these qualifications may be met; even so there are other solutions, summarized below. In most cases, an encroaching fence won't qualify, which means that you can demand that your neighbor move the fence and that if he refuses you can take her to court where you'll likely prevail. This doesn't mean you should, however. Going to court is expensive, worrisome and time-consuming. In this case, you can add to that the possibility that you will have begun an uncomfortable and unfriendly relationship with an immediate neighbor that could diminish your quality of life for years to come. Resolving the dispute by compromise is almost always a better solution.
Compromises That Protect Your Property Rights
Here are some available solutions that avoid a legal fight while still protecting your essential property rights.
- Move the Fence. Sitting down with your neighbor and offering to pay for half the cost of moving the fence often solves the problem. Moving the fence might cost hundreds to a few thousand dollars, but saves you both the expense and unpleasantness of a court battle that could cost each of you many thousands.
- Have your neighbor agree to acknowledge your property right. Where the fence may be encroaching by a foot or two, it may be simpler and cheaper for you both simply to have your neighbor sign a quitclaim deed. As the title suggests, this is a public and legal declaration that your neighbor has no legal claim to the area your neighbor's fence encroaches. Along with this, it's wise to agree on some nominal annual rent – a dollar is quite acceptable – your neighbor will pay you for the right to use the property from the encroaching fence line back to the legal boundary between the properties. Handled correctly, this can be an annual occasion for you and your neighbor to have a cup of coffee together. You'll still be able to sell your property with its actual property lines, he'll still have use of the encroaching foot or two and neither of you will have to hire a lawyer.
- Offer to sell your neighbor the encroaching area. If your neighbor is reluctant to sign a quitclaim deed, you can offer to split the cost of a real estate appraisal if he'll agree to buy the property at its appraised value. This may motivate your neighbor to agree to the quit claim deed process. If not, you may end up getting several thousand dollars for a foot or two of your property.
If your neighbor won't agree to any of the compromises you've offered, you still have two choices: The first is simply that you accept the fact that your neighbor can be a bit of a jerk and move on with your life. Sending an annual written demand for removal of the encroaching fence prevents the encroachment from qualifying for adverse possession, which must be "unopposed." If your neighbor puts his property up for sale before you sell yours, he'll probably find that his realtor will advise him that the dispute diminishes the value of his property far more than the loss of the disputed land. When this reality sinks in, your neighbor may finally agree to one of the compromises you've offered.
The second solution, of course, is that you engage a lawyer and file suit. Unless it's quite clear that the property in dispute qualifies for adverse possession, which is unlikely, your neighbor's lawyer may persuade him to agree to compromise.