You come home from work to see that your neighbor has put up a brand new fence, which appears to be partially on your property. Or, you have decided to sell your home and a recent survey of your property revealed that your gazebo encroaches on the property next-door. What can you do?

Disputes over property lines and encroachments are common neighbor disputes. Good communication and perhaps some negotiation can prevent these disputes from escalating, or stop them occurring in the first place.

Generally, the first step to resolve an issue with your neighbor is to calmly raise and discuss it with them. In most instances, it may be a good idea to obtain a “staked” survey which involves placing markers in the ground along the property border to confirm where the property line is. A staked survey shows the actual location of improvements to your property and any instances where your improvements – such as a fence or patio – are located on a neighboring property or where your neighbor’s property has erroneously located improvements on your property.

If there is an encroachment, it is time for you and your neighbor to discuss what to do about it. Sometimes, where the location of the encroachment may preclude you from building an addition to your home, it may need to be removed immediately. Other times, where the encroachment isn’t dangerous or a nuisance, maybe it may remain until it is removed or one of you sells your homes.

If the encroachment can remain, at least temporarily, negotiated solutions typically involve two options.

Option 1: if you constructed an improvement that encroaches onto your next-door neighbor’s land, you could offer to buy the land under the encroachment. This typically requires a survey to confirm where the land is, and an appraisal to determine what the land is worth. An outright purchase is disfavored in most instances because of the cost involved. Moreover, land in the metropolitan D.C. area is at a premium the zoning authorities impose restrictions on where you can construct a structure on your property and the size of the structure. Hence, if you or your neighbor convey part of your respective properties you might run the risk of inadvertently making your property a nonconforming structure under land use laws.

Option 2: However, your neighbor may prefer to just let you use their land – either for a specified time period or in perpetuity. In this case, the second option may be better: a negotiated easement or license coupled with a boundary line agreement. These agreements set out critical terms, such as

  • Who maintains the encroachments?
  • Who pays for repairs?
  • How are the encroachments accessed for repairs?
  • What happens if someone gets hurt on the encroachment?
  • How long can the encroachment stay?
  • What happens if someone wants to sell their house?
  • Is a license or an easement created?

Agreements of this nature will almost certainly help avoid future misunderstandings or disputes. These agreements are also a good idea because even though you and your neighbor may see eye-to-eye now, there is no guarantee that this will be the case in the future, or if your neighbor sells their home, that the new owner will feel the same way.

If an encroachment has existed for a long time, a property owner may have actually acquired to title to the affected parcel where the encroachment is located as title to the land may have passed through “adverse possession.” In order to assert a claim of adverse possession the claimant must be able to prove that (s)he has used the affected property openly and notoriously against any claims that the record title owner may have for the requisite period (generally 15 or 20 years).

Similarly, title may be burdened with an “easement by prescription” if the affected property has been used in such a way as to create an easement – i.e., by walking across a path located on a neighboring property. The actual time period to acquire title by adverse possession or a prescriptive easement is determined by state law. However, proving that you now own title or rights to your neighbor’s property in court can be difficult, and very expensive to litigate.

Accordingly, a negotiated solution — such as an easement or a license coupled with a boundary line agreement — tends to be the most cost effective and more neighborly way to resolve these types of issues. When re-negotiation fails, however, litigation may be necessary.

To avoid disputes of this nature, it is a good idea to get a survey of your property before building a new fence, patio or swimming pool or making any other improvements to your yard. However, if you realize that your neighbor has constructed something on your property, or vice versa, it may be a good idea to talk to an attorney to evaluate your options, and perhaps prepare and negotiate a boundary line agreement to resolve – or avoid – any dispute with your neighbor.

Real estate attorneys Arnie Spevack and Steven Dunn help real estate developers and property owners, lenders, businesses, and individuals negotiate and close deals and resolve real estate disputes throughout the greater Washington, DC area. For more on property line disputes contact Arnie at 301-657-0749 or [email protected] and Steven at 301-347-1276 or [email protected].