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Use It or Lose It: Property Owners and Fence Lines

by: Jane M. Myers, Esq.

Good fences do not always make good neighbors. A landowner can lose or gain land by a legal concept known as “adverse possession”. This is a legal principle whereby land may be acquired by someone other than the record owner if certain conditions exist for a period of ten years. There are two basic ways to acquire title by adverse possession: (1) adding an improvement, such as a building or planting; or (2) erecting a “substantial enclosure”, such as a fence. Additional legal requirements which must exist in order to win an adverse possession claim are: possession of the land must be hostile, actual, open, exclusive and continuous. Since it is quite common for fences to vary from actual property lines, special attention should be given if you are acquiring property with existing fences, as well as if you install new fences during the course of your ownership. For example, if your neighbor’s fence was installed on your property, the encroaching fence line may result in reducing the size of your property. Aside from losing your land, the reduced size might affect your setback requirements and impact on your planned future improvements.

If you find yourself faced with an adverse possession claim related to the existence of a fence, there are a number of defenses which may be raised. First, courts have held that a claim will not be upheld if it is based on the location of a fence which was erected for a purpose other than marking a property line (e.g., if the fence was installed to contain animals). Second, the legal elements of adverse possession will not be present if it can be shown that a fence was not installed on the property line but was allowed to remain in place as a matter of “neighborly accommodation” between landowners. Finally, the fence itself can prove to be the downfall of a claim – a small, rickety, dilapidated fence might not be found to meet the law’s “substantial enclosure” requirement.

Keep in mind that making an adverse possession claim can be an effective way to protect your rights. Suppose that your property is separated from your neighbor by a fence, trees, driveway and/or other demarcations that everyone assumes are on the property line. Then your neighbor obtains a survey which shows the property line is actually much closer to your building than everyone thought. If the fence line, tree line, driveway or other demarcations have been treated by both sides as the boundary line for at least ten years, that line will be deemed to be the legal boundary even though it differs from the actual surveyed boundary line. The way to obtain legal recognition of that boundary line is to bring an action in court based on adverse possession and requesting a court order confirming the different property line demonstrated through adverse possession.

 

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Please note that this article is intended only as a general discussion of legal issues pertaining to property boundary lines and that it should not be taken as creating an attorney-client relationship or as legal advice with respect to any particular person, business or situation. Circumstances and the applicable legal principles vary and you should consult with an attorney regarding the facts of your particular situation.