SOMETIMES A FENCE IS JUST A FENCE
I once had a client who had lived in his home for more than 20 years. One day he awoke to find the side neighbor building a fence ten feet over onto his property!
“What are you doing?” shouted my client, let’s call him Sam. “Well, Sam,” said the neighbor, “I’m putting a fence on the property line. I had a survey done and guess what; you’re ten feet over on my side of the line.” Sure enough there were surveyor’s stakes in the ground marking the line of the new fence.
Sam was outraged, and after jumping up and down a few times, called me.
Sam showed me his parcel map, and pointed indignantly to where the neighbor had put the fence. On his side of the line. Or so he insisted.
Sam was wrong. Why?
Sam made the simple mistake many homeowners make – he relied on a long standing fenceline along the side of his yard, one put up some 30 years before he bought the property. His realtor and the seller both assumed the fenceline was the property line. So did the former owner of the property beside him. Sam pointed to his deed and the not very accurate parcel map from the County Recorder’s office, the one that was created in nineteen ought eight when the land was first subdivided, as further evidence that his property was where he thought it was. What stumped him was my pointing out that nowhere on that parcel map was a fenceline depicted. Nothing, in other words, confirmed the old fence was on the property line.
In the nearly 100 years between the creation of the subdivision and the present time, uses changed, fences shifted, shrubbery grew and people laid out boundaries based on someone else’s faded memories.
Is Sam plumb out of luck? Well, that depends. Here are some ways Sam may yet get to keep the property he’s considered his all these years.
Sam may have an agreed boundary line he can point to for his claim that the ten feet are rightfully his.
An agreed boundary is one agreed upon in years past to settle a difference or dispute over the true location of the property line. If there is an existing fence along what Sam thinks is the property line, it may that the previous neighbors had this same dispute years ago, and agreed that the boundary line would be where Sam thinks it is
He would need to show some past uncertainty as to where the line was and an agreement between the (then) owners of both sides that the fence was to be used as the property line. Sam wins if he can convince a court that this is the case.
If indeed the fence has existed and been used for some fifty years or more as the property line, that fact in itself may be enough evidence to show the agreement needed to prove the case.
Sam may need to track down previous owners, or their heirs, to make his case in court.
If Sam can show he has used the property as if it were his own in an “open and notorious” manner, and that he has have paid the property taxes on it continuously for five years, he may be able to claim under adverse possession.
The payment of property taxes is the tricky part here. Chances are, if the neighbor’s survey is actually correct (and Sam should certainly have his own done, just to be sure), then it’s not likely he’s been paying taxes on the disputed portion.
However, if he can show everything but payment of the property taxes, he may have a good argument that he has acquired an easement over that portion of the property.
LOT LINE ADJUSTMENT
Does Sam’s neighbor really need the extra few feet? Or would he rather have an extra few bucks and give Sam a lot line adjustment. A lot line adjustment is a modification of a boundary line between two or more legal parcels. Sam will need to apply for this procedure through his local Planning Department, pay a fee and have a new legal description prepared. He also needs his neighbor’s written agreement to present his application.
Sam may also get his neighbor to let him use the property, or split the difference to avoid a protracted legal battle. Sam could obtain a “license” for use from the neighbor for this purpose.
If this happens to you, talk to your neighbor first. Find out what his needs are; then, if you can’t work it out amicably between you, a good real property attorney can advise you of your options.
Dotty E. LeMieux
Dotty E. LeMieux practices tree, neighbor, boundary and easement law in Marin County and can be reached at email@example.com. (A version of this story first appeared in the Marin Scope Newspapers)