Out of Bounds: Meandering Fences Can Be Costly to Property Owners

Property owners often do not know the precise boundaries of their land, and the cost of this lack of knowledge can be significant. A misunderstanding regarding boundary lines or the location of a fence can delay or even prevent a sale from taking place.

Further, a fence located on a neighboring property or inside of the property line can lead to strained relationships and give rise to costly litigation. Many property owners do not even know whether a fence encloses their property or the neighboring parcel.

Addressing these and other potential encroachment issues well in advance of closing can ensure that a property sale actually takes place and help you avoid time in court.

Fenced In

It is not uncommon for fences to sit inside or outside a boundary line. A property owner may mislocate a fence either inside of a property line or onto a neighboring property for many reasons:

  • They may not have known the property boundaries when the fence was constructed and the fence was simply placed where the property line was believed to have been.
  • A fence contractor erroneously misread a survey when constructing a fence (more common when replacing an existing fence without a staked survey).
  • A surveyor may have made a mistake in preparing the survey.

There are other reasons giving rise to a claim for adverse possession – occupying someone else’s land with or without the intent to possess it – of a neighbor’s property:

  • In rural areas, parties frequently rely upon what they generally believe to be the property boundaries when constructing fences.
  • A property may have been in the hands of a family for generations before parents subdivide the property in order to give building lots to children.
  • One party’s permission to use a common, infrequently used driveway may be disputed when one of the subdivided parcels is ultimately sold, particularly if there is no recorded easement to use the driveway.

Disputes Following a Sale

Boundary disputes frequently do not come to light until a property is sold.
In metropolitan Washington, DC, builders more frequently are purchasing “tear-down” houses. It may only become apparent after a builder closes on the purchase transaction that the garden the homeowner has been maintaining for decades is located on the adjacent property.

In other instances, neighboring property owners may have agreed that each can traverse a walkway across each other’s properties without formally recording an easement or license to do so. Obviously, these issues can have significant consequences both for the acquiring property owner purchasing a new home from a builder and the neighboring property owner.

The District of Columbia Court of Appeals noted in a decision that, “in medieval days, an owner of land who had been dispossessed of his property . . . . had the right to oust the dispossessor . . . by force . . .” Generally, given how litigious society has become, it generally is not a good idea to use force to oust a trespassing neighbor. Neighboring property owners increasingly turn to the courts to resolve disputes over adverse possession, which can result in costly litigation.

What is Adverse Possession?

Adverse possession is the actual, open and notorious, exclusive, continuous, and hostile possession of the premises for the prescribed statutory period under a claim of right or title. In Maryland, the adverse possession of the property in dispute must continue, uninterrupted, for 20 years. In the District of Columbia and Virginia, the adverse possession must be for 15 years before the wrongdoer acquires title to the property.

Turning to the Courts

Today, for a record owner of property to recover possession of property where a neighbor contests title, he or she must file suit to confirm title to the property within the statutory limitation period. Alternatively, after the limitations period has elapsed the party acquiring title to disputed property may file suit to “quiet” title to the property – to extinguish the neighboring property owner’s interest.

If the record owner of property fails to file an action to protect his or her interest before the statute of limitations runs out, the wrongdoer who adversely occupied the record owner’s property – intentionally or by mistake – may become the lawful owner of the disputed property. Most courts will presume that one who occupies another’s property does so with the property owner’s consent and most courts also require that “adversity” be established by clear and convincing evidence.

What happens when there is a mistake as to where the boundary lies between two properties? The majority rule is that a property owner can acquire title by adverse possession even when the occupancy began due to a mistake identifying the property’s boundaries.

Best Practices

Best practices to avoid mistakes that result in a real estate sale transaction not closing:

  • Well in advance of placing a property on the market for sale, engage a licensed surveyor to survey the property boundaries and, if in doubt, to place markers along the boundary line.
  • Before erecting a fence, engage a surveyor to prepare a “staked” survey of the property to be fenced, meaning the surveyor will place a string along the property boundaries. When the contractor erects the fence, it should be located along the property line.
  • If you think there’s an encroachment by or against a neighboring property owner, it is often possible to resolve the dispute through a simple boundary line agreement whereby the adjacent property owners acknowledge that the record boundaries of their properties govern over any use of the property. A boundary line agreement, to be enforceable, should be recorded in the land records.
  • If you discover an encroachment, the best time to deal with the issue is the time of discovery.
    • If you are the encroaching party, it frequently is the better course of action to reach an agreement with your neighbor for a boundary line agreement whereby the parties recognize the boundary line and agree not to pursue an adverse possession claim, negotiate the purchase the property from the neighbor, or negotiate an easement over the property in question. An outright purchase may have unintended consequences and costs because it might create the need for a re-subdivision of the two parcels of land. Hence, there might be unintended land use consequences such as setback violations, which may result in the inability to rebuild, develop or make further improvements to one of the properties because the property might be undersized for the existing or proposed improvements.
    • In most cases, a boundary line agreement or an easement over the property in question is the better course of action than an outright purchase as it should not entail the need to re-subdivide the property.
  • As noted, in many instances the adverse possessor’s interest can be protected and recognized and addressed in a recorded document acknowledging the use of the property does not give rise to the grant of a possessory interest afforded by an easement, and stating that use of the property has been consensual and does not give rise to an adverse possession claim.

Arnie Spevack helps clients resolve disputes involving high-end residential properties – be it a contract dispute, an adverse possession title claim, or dealing with a construction contract. For more information, contact Arnie at [email protected] or 301-657-0749.