Q&A - Neighbor's Fence on My Property

By
Real Estate Agent with Home Grown Real Estate - Buy Sell Remodel Build

Tuesday, August 25, 2009

Q&A - Neighbor's Fence on My Property

 


Debbie from Green Hill asks: "Joshua, that's a great idea - sharing your knowledge with all of us. I do have a question. Twenty years ago we had our land surveyed before we built on it and one corner of our land has an ancient barbed wire fence that belongs to our neighbors. I have heard that an existing fence line can be used to take possession of that land. They are all nice people and have been family friends forever, but eventually it will be their grandkids or great-grandkids dealing with ours.. Is there a polite way to get them to take the fence down. It hasn't been used at all since before we moved here. I don't want to cause any problems with our neighbors. Thanks for any help you can give me."

This is a great question, and one that comes up more often than many people realize. The law that you are referring to is what is known as "adverse possession" and dates back to medieval England. Let me give you a quick definition of what adverse possession is, and then let's talk about how to deal with it.

Wikipedia defines adverse possession as, "the process by which title to another's real property is acquired without compensation, by holding the property in a manner that conflicts with the true owner's rights for a specified period."¹ According to Alabama Common Law, an individual may claim ownership of a property after 20 years of continuous, open, and notorious use of the property. In Alabama Code §6-5-200, you may acquire ownership of property after 10 years of possession if you also have some sort of recorded deed, if you've had the taxes listed in your name for ten years, or if you've inherited property from someone who has done those things for 10 years.

Why is this law in place? Basically, it protects your property rights from being taken away from some "long, lost heir" of someone who owned your property before you. Anyone could come to you and claim that you are living on their great-great grandfather's land from years ago, and they are the true owner of that land.

There are certain requirements to be able to claim adverse possession. You can't be sneaky about your possession. It has to be open and hostile. That means that you have to use it as if its your own, and that its obvious to the public that you are in possession of it. Putting up fences, planting a garden, clearing the land, or building a house are all ways this can be shown. It also has to be continuous. In order for a person to claim adverse possession, it also has to be brought before a judge for them to receive title to that property.

Let me tell you a story first, and then I'll talk a little more about your specific situation and how best to resolve it. My great grandparents bought the farm that I grew up on in the early 1900's. That land has literally been in my family for over a hundred years. A few years ago, my dad was looking over the property boundaries of our family farm and realized that there was a little over an acre of land that we have used, cultivated, and farmed for over a hundred years, that in reality is owned by the man who owns the land next to us. No one ever noticed the mistake before, and it had been this way for many, many years. My father could have gone to a judge here in Lauderdale County, claimed adverse possession, and could have rightfully received title to this land. He knew, however, that unless he repaired the mistake, his children would have to deal with the mess of what to do with the land. So, instead of claiming adverse possession, he called up the neighbor, told him about the mistake, and arranged a deal with him to pay for the land and thereby receive a clean and clear title of the parcel in question. A happy neighbor was worth more to him than the price he paid for the land.

Some neighbors aren't always so nice. Hopefully in your situation, they will be helpful and understanding of the problem. My advice is that this is best handled now, while you have a good relationship with the neighbors. If it were me in this situation, I would approach them, tell them (nicely, of course) about your concern, and how you would like to work out the problem now so that future generations will be able to avoid conflict. I would get a new survey done. You might ask them if they would be willing to split the cost of the survey, and mutually agree that both sides will accept the surveyor's lines. (This could save potential conflict if they try to claim that you hired the surveyor and that you had him fudge the property lines in your favor.)

Next, I would speak with them to see what both of you are willing to do to resolve the problem. Since the fence is old, they may be OK with taking it down. If you are OK with the fence staying on your property, you might speak with an attorney about drawing up an agreement that states that you both understand and recognize that their fence is on your property, and that you give them permission to keep it there. If you give them written permission, then they cannot claim adverse possession. Keep in mind to always use kindness and understanding throughout the entire process. You have to remember that you're going to be their neighbors for a long time, and conflicts like these can make or break a friendship.

Since I am not an attorney, I obviously can't give you any legal advice. It is always wise to consult an attorney first before taking any action.

If you have any questions, please feel free to contact me by emailing me at jbpettus@gmail.com or you may leave a comment here at our blog, or you may also contact us through Facebook.

Thanks!

Joshua B. Pettus

President/Associate Broker

Home Grown Real Estate

256.541.0491

jbpettus@gmail.com

http://www.homegrownrealestate.net/

http://homegrownrealestate.blogspot.com

 

Comments (2)

Donna Harris
Donna Homes, powered by JPAR - TexasRealEstateMediationServices.com - Austin, TX
Realtor,Mediator,Ombudsman,Property Tax Arbitrator

Great explanation of adverse possession.  There was a situation not too far from me where an older man was trying to sell his house, but his fence was actually outside his property so the buyer couldn't get the loan.

The land belonged to the city and the city actually made him buy it instead of the home owner claiming possession.  I didn't think it was fair, but I'm not sure if he had anyone helping him.

Nov 03, 2009 07:07 AM
Joshua Pettus
Home Grown Real Estate - Buy Sell Remodel Build - Florence, AL
Realtor, Florence, Alabama Real Estate

Thanks!  I spent a bit of time on this one.  Of course, this post was written from the perspective of Alabama Real Estate Law, but I wonder how that law differs from state to state in regards to adverse possession.  Thanks for reading, and I hope you enjoyed!

Joshua

Nov 03, 2009 07:22 AM