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I'm sure some folks with will weigh in with all sorts of theories about boundary disputes and adverse possession but as a PRACTICAL matter there is no reason to worry about this now. Fact is courts simply do not behave in a dunderheaded manner and in situations were there are no issues with egress (like for a driveway) or other planning / zoning issues like for lot coverage / setbacks nobody will really be hurt by this sort of thing.
What might not be a bad idea is to talk to the attorney that you probably have to help with the sale to draft a letter to the property owner who has the encroaching fence. The specifics of the encroachment can be called out with a copy of the survey. The attorney may suggest that when the fence needs to be maintained the assumption would be any encroachment would be corrected. The language should be sort of "lawerly" so that the neighbor does not get the impression this is something to blow off, but if you leave it open ended as to date of maintenance being at the discretion of the neighbor and "no desire to pursue legal action" that should not result in any sort of "bull in the china shop" trying to wreck what was probably an OK relationship of seller and neighbor...
Here is nice long boring and lawerly article that explains most of the issues:
What you need to avoid the statute of limitations running if it hasn't already. How and when the statue runs is state and fact specific. You need a lawyer.
I am a lawyer. It could well be that the period for adverse possession has ALREADY run. If it has, the neighbors pretty much own that 17 feet. They don't legally own it until a judge decides that the period for adverse possession has run and issues a judgment quieting title in the neighbors, but if the period has run they will get a judgment if they seek one. You first need to know what the period is in your state; the period in my state can be from five to ten years depending on various factors. If it is ten years (for example) and the neighbors can prove the fence has been there without express permission for 25, the fat lady has sung. If it is ten years and the fence has only been there five, you could stop the remainder of the ten-year period from running by (1) insisting the fence be removed or (2) entering into a mutual agreement (easement) whereby all future use will be permissive rather than adverse. If you resort to self-help by removing the fence and the period for adverse possession has already run, you could be looking at a citation for criminal damage and a civil action for trespass; so self-help is never wise unless you are utterly sure of your facts. You probably do want to know the facts and get this resolved, if only so that you will be able to give an accurate description of the property if and when you sell it. If the neighbors do own the 17 feet by adverse possession, the solution is to give them a quitclaim deed to that portion (so now it will be included in their property taxes). If they do not, then the solution is either to demand that the fence be removed or enter into an easement to allow it to remain on a permissive basis. These things almost always go very smoothly and cooperatively or turn into legal bloodbaths (I much prefer the latter, of course). In my state, if the neighbors were confident of their position, they would send you $5 and a quitclaim deed to the 17 feet, demanding that you sign and return the deed; if you did not, they could sue to quiet title and recover their attorneys' fees because you refused to sign the deed when they tendered it to you.
Required disclaimer: Nothing I have said is legal advice. These are just general observations. I am not your lawyer. Adverse possession issues can be tricky, and I would strongly recommend you talk with a lawyer in your state before closing.
If you do not plan on using the area rent the property to your neighbor for a nominal sum such as $1 a year. This will protect your ownership rights. This is assuming the neighbors do not already have a claim to the land by adverse possession.
Disclaimer: I ain't a lawyer, former realtor and realtors cannot practice law. Real estate school impresses this firmly.
My parents own a home where they had to pay a dollar a year rent to a pipeline company for a large section of their backyard. A few years back the pipeline needed the land and refenced the back fence about 15' in.
I am a lawyer. It could well be that the period for adverse possession has ALREADY run. If it has, the neighbors pretty much own that 17 feet. They don't legally own it until a judge decides that the period for adverse possession has run and issues a judgment quieting title in the neighbors, but if the period has run they will get a judgment if they seek one. You first need to know what the period is in your state; the period in my state can be from five to ten years depending on various factors. If it is ten years (for example) and the neighbors can prove the fence has been there without express permission for 25, the fat lady has sung. If it is ten years and the fence has only been there five, you could stop the remainder of the ten-year period from running by (1) insisting the fence be removed or (2) entering into a mutual agreement (easement) whereby all future use will be permissive rather than adverse. If you resort to self-help by removing the fence and the period for adverse possession has already run, you could be looking at a citation for criminal damage and a civil action for trespass; so self-help is never wise unless you are utterly sure of your facts. You probably do want to know the facts and get this resolved, if only so that you will be able to give an accurate description of the property if and when you sell it. If the neighbors do own the 17 feet by adverse possession, the solution is to give them a quitclaim deed to that portion (so now it will be included in their property taxes). If they do not, then the solution is either to demand that the fence be removed or enter into an easement to allow it to remain on a permissive basis. These things almost always go very smoothly and cooperatively or turn into legal bloodbaths (I much prefer the latter, of course). In my state, if the neighbors were confident of their position, they would send you $5 and a quitclaim deed to the 17 feet, demanding that you sign and return the deed; if you did not, they could sue to quiet title and recover their attorneys' fees because you refused to sign the deed when they tendered it to you.
Required disclaimer: Nothing I have said is legal advice. These are just general observations. I am not your lawyer. Adverse possession issues can be tricky, and I would strongly recommend you talk with a lawyer in your state before closing.
Thank you for your contribution to the discussion. You have said a lot more than I would have said since I am not a lawyer, and recognizing your disclaimer that, "this is not legal advice." Typically lawyer and most certainly true, considering that lawyers and Realtors cannot give legal advice on this forum without disclaimers.
I faced an adverse possession situation myself, although I was on the plaintiff position, when selling my house. Although the issue did not come up it was clear to me that under the laws in my jurisdiction I was entitled to about 1 foot of my neighbor's property. As it turned out it was not an issue during my real estate transaction, although it did clear the way for my Realtor to persuade the infringing neighbor to fix a wood fence at no cost to me.
It should be clear to everybody that these are not mere legalities. The law is the law, and the law you don't know can come back and bite you.
It is totally clear to me (particularly since I am also a landlord) that you cannot simply ignore the law. The law that don't know will surely come back and bite you in your ass.
Required disclaimer: Nothing I have said is legal advice. These are just general observations. I am not your lawyer. Adverse possession issues can be tricky, and I would strongly recommend you talk with a lawyer in your state before closing.
I am also a lawyer and I have no idea of what state the property is in. But the statute is in many states tolled by such things as incompetence or infancy.
I am not a lawyer either. IMO the people with the fence must prove the terms of adverse possession to claim the land, and it is not particularly easy. I would search when they bought the property, and what the description is on their deed (which is public). They would have to prove that the fence was built to the terms of AP, or that the fence existed for the correct period of time via the prior owners.
Also just a layman, but it would seem to me that anybody trying to enforce an adverse possession case must prove when the fence was built. Perhaps not easy or hard, depending on the plaintiff's record keeping.
Just FYI I did enough research in a property in California that it indicated to me that adverse possession did have a legal basis, although I never claimed it. My concern was who was responsible for a fence built one foot inside of my neighbor's property line.
My conclusion was that in general, in CA, neighbors are legally responsible to share fence maintenance costs for fences built upon the property line, but since the neighbor built his new fence 1 foot inside his property line I had no legal responsibility to maintain his new fence (which was built like crap and falling down within 5 years).
His new fence replaced a block wall on our property line which fell down in an earthquake. I decided I would be responsible for paying 50% of the cost of reconstructing a new wall, and approached my neighbor suggesting we do so, but he declined.
Also just a layman, but it would seem to me that anybody trying to enforce an adverse possession case must prove when the fence was built. Perhaps not easy or hard, depending on the plaintiff's record keeping.
Another issue in some states is whether the encroachment was open, notorious and hostile. If it was built in the middle of the woods it may not count.
Not a lawyer & several people have mentioned that it may not matter to you, but it may become an issue when you sell the property. The other thing to think about is that it may become an issue if THEY sell their property. I had a similar situation where a neighbor's monument was encroaching approx 2" on my 1 acre (unoccupied) land. We never chose to do anything about it, but when the encroaching neighbor's went to sell their house, it came up in the research done by their prospective buyers & I started getting nasty phone calls from a realtor who was afraid she was going to see her commission vanish. Screaming at me, ordering me to do something within 24 hours & trying to intimidate me into actions that she wanted. It was stressful even though I knew I was not required to do anything & that her emergency was not my emergency. If I had to do it over again, I would have taken some action right away. By the time I'd gotten the screaming realtor phone call, I'd completely forgotten the encroachment even existed (more than a decade had gone by).
Just be aware that it can come up in the future & the least convenient times. Better to resolve it on the front end IMO. When I've had fencing issues, I've just hired a surveyor & gone to to my neighbors with said survey in hand & they've always moved their fences & it was done amicably. IIRC we had already bought the house though in both cases & the encroachments came up when we went to put in our fence.
I still say if you don't care simply rent the land to the neighbor for a dollar a year. If he refuses to do that then you will want to check if he owns the land through sdverse possession.
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