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I am just curious if a survey was done at the time you bought the house, if so, did that surveyor indicate that you neighbor is occupying part of your property?
Hello. Recently purchased a house and had a new survey done b/c it's required and I want to put up a fence. I placed corner markers for the fence company to use as a reference. In this process we saw that our neighbor has been using part of the property...about 2ft wide and 15ft long. When the markers were placed she was adamant that this is wrong and that she has a survey going back to the 70s that show slightly different measurements.
I advised that this is too old and she should do a new survey to which she said she will do it. It's now been over a month and a half and no survey completed yet and the neighbor has stopped talking to us. I've gotten permits, all of my fence material has arrived. Should I just start putting up my fence...I've done everything I could. Even if she completes the new survey, it won't be drastically different from the one I just completed. Thoughts?
She won't talk to you likely because she found out or doesn't want to admit she is wrong. If you believe your survey to be credible, then I would move forward. Ideally she would give you a copy of her survey to compare it to yours.
Years ago my neighbor said he was going to put up a fence. On the advice of my real estate attorney, he said I should share a copy of my survey with the neighbor before he does anything. This way he is informed and should be more careful. It was also a more friendly way to while appearing to be helpful, this was a nicer way to put him on notice that I will be paying attention to where the fence goes up. It worked out fine doing this.
The survey company did everything, including placing the markers. We are a corner lot. The issue is her house is built less than 3ft from property line so she has built a walkway with paver stones going to the back of her house on our property and then a flower garden as separation. My intention is to remove the flower garden and part of the stones and build the fence according to code with 6in setback. i suspect she knew that she was in the wrong because as soon as the survery folks came she was on top of them and breathing down their neck. I've tried reasoning with her, but she has been very confrontational - told me I overpaid for my house, that I pay a lot of taxes, asked if I even have a permit and if I put the fence and its wrong I have to pay for it and get it removed. At this point I just want to put up the fence and stop having to deal with them.
Since you will be disturbing what she has been taking care of, I would consult with a real estate attorney on how to proceed.
Strictly speaking, adverse possession is not the issue here. The issue whether there is a prescriptive easement (extremely similar to adverse possession) on the property. The attorney you spoke with is incorrect, the 'five years of taxes' rule is irrelevant in this case.
The reason why I don't think your neighbor has a case, is because it has to be open, notorious, and hostile. She has to know that she's using your land for 20 years, and you/your predecessor also had to know/should have known about the intrusion. It's a difficult standard to prove.
But just because you may be legally entitled to build a fence may not necessarily make it a smart move. She may sue you, turning this into an expensive property dispute, even if the facts are on your side. You need to be careful in your next moves, because she could probably halt any construction from happening with an injunction as well. Or maybe she will respond to hardball, I'm not sure. But you should be careful and consult an attorney before beginning construction.
EDIT: Forgot to add, I'm hoping you purchased title insurance when you closed on the property, because they might help you! Reach out to your title company, and see what they say. They may defend you for "free" (covered by the policy you purchased) if she chooses to sue.
Last edited by midnight_thunder; 10-21-2020 at 10:08 AM..
Reason: Good advice
I'm surprised you went ahead with the purchase knowing about the encroachment. Not worth the headache.
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