Ralph's Weekly Legal What-If Scenarios: Encroachment - "Don't Fence Me In!"

Real Estate Broker/Owner with Maui Life Homes / Metro Life Homes RS-78439 / BRE #01708344

Ralph's Weekly Legal What-If Scenarios: Encroachment - "Don't Fence Me In!"

Each Monday, I'm going to post a "What If" Scenario that presents a legal issue in a real estate hypothetical situation.

Each Sunday, either the correct legal answer (or most likely legal resolution) to the situation will be posted.

These are great opportunities to keep your real estate legal chops honed and tuned as a real estate professional.  And I'm sure there will be some interesting discussions going on related to these hypothetical situations.  Some of you may also have had identical situations in the past that will bring some interesting light to the answers.

Here is this week's scenario:

A buyer, Bob, purchases a property in 2008.  Later that same year he decides to put up a fence.  Unknown to Bob at the time, the fence actually sits about one foot onto the neighbors property, thus creating an encroachment.  The neighbor at the time, Ann, never says anything because she never realized that there was an encroachment, she feels that the fence really doesn't affect her, and she actually thinks it looks nice.

In 2012,  Ann's property changes hands and gets sold to another buyer, John.

John performs an inspection on the property during escrow, and it is then that he notices that Bob's fence sits about a foot over his property that he is in escrow on.

John closes escrow and immediately states to Bob that his fence is encroaching upon his property, and requests that Bob re-work the fence so that it does not encroach on his property.

Bob states that the fence has been there for three and a half years and that the previous resident never said anything about an encroachment.  Bob states that he will not rework or remove the fence.

Who is right?  Who is wrong?  What will most likely be the outcome should John pursue the issue through litigation?

Post your definition of what the answer is, and the correct answer along with the relative laws that apply will be posted on Sunday.

Good luck!


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Terry McCarley
REMAX Realty Team - Cape Coral FL - Cape Coral, FL

I'm not an attorney but my opinion is that Bob is going to have to move the fence.  The fence hasn't been there long enough to fall under an adverse possession claim.  John would be wise to just move the fence and avoid having to go to court.  He most likely will end up having to pay Bob's attorney fees if he forces this into the court room.

Jan 11, 2012 03:06 AM #28
Sandra Wright Page
Keller Williams North Valley - Espanola, NM
Serving buyers and sellers in Northern New Mexico

Bob didn't do his due diligence when he bought his property or he would have noted the encroachment on the survey. Here a title company would have noted it and taken an exception to the encroachment on the title policy. Not a lawyer, but I believe that John will prevail. He might have to sue Bob to get the court to order the fence removed from his property. All in all, like others have said, not a great way to begin your life in a new neighborhood.

Jan 11, 2012 04:20 AM #29
Liane Thomas -Top Listing Agent
BROKER Allison James Estates & Homes BRE 01885684 - Corona, CA
Bringing you Home!

Love this idea! I will look forward to the next in the series. My guess is the fence needs to be moved. Can't wait for the "real" answer.

Jan 11, 2012 04:58 AM #30
Lyn Sims
RE/MAX Suburban - Schaumburg, IL
Schaumburg IL Real Estate

I'm not an attorney but I practiced being one at Halloween ...... I say that the new buyer can force the fence to be moved if it was in the state of IL.  After ??? so many years, that wouldn't be true. 

Wow, Carla's got a different twist on this answer for her state.

Jan 11, 2012 05:30 AM #31
Kate Akerly
Kaminsky Group - Manhattan Beach, CA
Manhattan Beach Residential Sales

This is a question of adverse possession.  I'm not sure what the law is in every state, but off hand, most require 10-15 years, so I don't see how he could acquire title in that manner given the facts.  At common law, adverse possession requires:

  1. Actual possession that is:
    1. open and notorious
    2. exlclusive
    3. hostile; and
    4. continuous
Clearly Bob had actual possession.  It was open and notorious because he put up a fence.  It was exclusive because Ann did not have access to it.  Whether the possession was hostile depends on the state.  It was continuous.  
The clock would not start running on the statutory period required until Bob's possession was hostile.  States typically follow the "Maine Rule" or the "Connecticut Rule."  Pursuant to the first, to be hostile, the possessor must have knowledge that they are wrongfully possessing the property.  According to the other rule, any actual possession is hostile.  If we follow the Maine rule, the clock for adverse possession wouldn't start ticking until Bob knew the strip of land did not belong to him.  At trial, John would win and the court would order Bob to remove the fence from John's property.
I wouldn't argue for a prosecriptive easement, though it's closely related to adverse possession.  It generally deals more with a use of property (e.g. use of a driveway, or path, or utility lines that cross a property, or use of a lake for fishing).  
Jan 11, 2012 06:38 AM #32
Curtis Van Carter
Better Homes & Gardens Wine Country Group - Yountville, CA
Your Napa Valley Broker Extraordinaire


I think Bob will prevail since John closed after discovery and who knows how long the fence had been there with all the past owners. cheers cvc

Jan 11, 2012 07:03 AM #33
Robin Sagadraca
Old Republic Title & Escrow of Hawaii - Honolulu, HI

Here in Hawaii, the escrow normally would not have closed until the encroachment matter was resolved.  If not, the title policy that would be issued would contain an exception to the encroachment. 

The usual procedure here is to have both neighbors sign and record an encroachment agreement that acknowledges the encroachment and contains other provisions such as waiving any adverse possession rights.  This is done prior to closing and the encroachment agreement is recorded along with the conveying documents. 

I believe that John is well within his rights to insist on having the fence removed.  But then he'd have to be prepared for a lot of bad blood with his neighbor.

Jan 11, 2012 08:18 AM #34
Evelyn Kennedy
Alain Pinel Realtors - Alameda, CA
Alameda, Real Estate, Alameda, CA


What a great idea for a post series.  I look forward to seeing your answer and next Monday's post.  I think that the buyer John would prevail in court.  I wonder why John did not bring the matter up before close?  But I am not an attorney, so my answer is just a guess based upon previous experience.

Jan 11, 2012 09:08 AM #35
Jeanne Dufort
Coldwell Banker Lake Country - Madison, GA
Madison and Lake Oconee GA

If John were my buyer client, and we discovered an encroachment during due diligence - we would have required Ann and John come up with a solution prior to closing.

a) as neighbors, they have some sort of relationship most likely and

b) If Ann wants to sell her property, she is very motivated to solve encroachment issues.

Just had one close with that same scenario last year.


Jan 11, 2012 09:29 AM #36
Gene Riemenschneider
Home Point Real Estate - Brentwood, CA
Turning Houses into Homes

Without going back to my real estate books, I believe at the 3 year point this is now Bob's right to keep the fence there.  

Jan 11, 2012 09:52 AM #37
Dawn A Fabiszak
Private Label Realty ( Denver metro area, Colorado - Aurora, CO
The Dawn of a New Real Estate Experience!

Ralph ~ what we have here, is a clear case of potential animosity amongst neighbors.  In Colorado, the Improvement Location Certificate (ILC) would have clearly shown the fence encroached onto John's property line.  Title Insurance would have included the exception.  I believe Bob is going to have to move his fence.  Clearly Bob didn't put a permit for it.

I had this happen about a year ago on a vacant lot I was selling.  An adjacent neighbor had built a fence that was 3 feet over the property line.  It showed up on the ILC.  The  new buyer notified the encroaching neighbor and had the neighbor remove the fence.


Ralph ~ I love this new series!!!  You come up with some great ideas!

Jan 11, 2012 10:12 AM #38
Winston Heverly
Winston Realty, Inc. - Atlantis, FL

I'm with Dawn on this one, but you do live in California so it could be anyone's guess. Where's Johnnie Cochran? I know the answer it's hypothetical.

Jan 11, 2012 12:37 PM #39
Woody Edwards
First Choice Realty, Inc - Chesterfield, VA
A RealtorĀ® Who Answers His Phone!

It appears Bob has been informed of his mistake and he has a decision to make.  Move it to his property, or do nothing!  If he so chooses to do nothing , then John has choices.  Leave the fence alone and make happy with the new neighbors, or tear it down.  After all it IS affixed to the property he just purchased, so now it belongs to him.

Of course, a lawyer (which I'm not) or a judge, may see it differently......depending on your local laws.  Let the closing attorney handle it!

Jan 11, 2012 01:45 PM #40
Marte Cliff
Marte Cliff Copywriting - Priest River, ID
Your real estate writer

A lot of people have mentioned a survey. My question always has been this: "What good does a survey on a piece of paper do?" Unless the lines are marked on the land, you still don't know where they are.

We once purchased a rental house with a chain link fence. After a few years the neighbor called to say he'd  been checking the property lines and we needed to move the fence - I think it was 4 feet.

He was right - and wrong.

If you measured from the nearest permanent survey mark to the East, the line needed to come 4 feet our way. BUT if you measured from the nearest permanent survey mark to the West, it needed to move 10 feet in his direction.

He decided it was fine where it was.

A similar situation up on Priest Lake leaves about a 20' "No man's land" between my family's property and the adjoining state land. And closer to town, a section corner has moved 100'. Fortunately, there are no homes affected.

It makes sense if you consider how land was measured 100 years ago.

I'll be back on Sunday to learn the answer to your scenario.

Jan 11, 2012 07:03 PM #41
Bob Miller
Keller Williams Cornerstone Realty - Ocala, FL
The Ocala Dream Team

Hi Ralph,  I am dealing with an encroachment as we speak that might kill a deal where I have both sides!

Jan 11, 2012 10:12 PM #42
Sylvie Stuart
Realty One Group Mountain Desert 928-600-2765 - Flagstaff, AZ
Home Buying, Home Selling and Investment - Flagsta
This is a great series idea! I think the fence needs to be there for 10 years to then be considered not to have to move it. I'm wondering if this is different from state to state?
Jan 12, 2012 12:33 AM #43
Peter Michelbach

Ralph ~ I believe Bob should remove the fence to it's correct position immediately at his cost, or contact the contractor who in the 1st place made the mistake by supposedly not measuring correctly.

In addition, John should be entitled to place a caveat on Bob's land, so that Bob would not be permitted to sell, unless he pays the value of the enchroached land back to John including all outstanding costs.

It is a matter of social justice, and thieving should not be permitted, regardless. Period.

Jan 12, 2012 01:30 AM #44
Leslie Ebersole
Swanepoel T3 Group - Saint Charles, IL
I help brokers build businesses they love.

In IL, Bob would not be able to claim a prescriptive easement or adverse possession until 20 years of obvious/uninterrupted/hostile use has passed, counted from the time that John acquired title to the property. The 3 1/2 years of time when title was held by Ann doesn't count to the 20 years.

- John has the right to remove the fence on his land without Bob's consent.

- John could seek a court order asking that Bob be ordered to remove the fence.

- John should seek legal advice before taking down the fence and sending the bill to Bob. 

John somewhat damaged his position of objecting to the fence by closing without remedying the encroachment. A judge might take this into account when allocating any cost of fence removal.

This happened to me on a personal purchase. At the closing we learned from the survey that there was a shared driveway along the edge of the property used by the property to the east, the property to the northeast and that the western 15 feet of it was recorded an easement to provide access to the vacant property to the north. Usage and maintenance of the driveway by the other property owners was by verbal agreement. We held back and closed a week later when our attorney worked out easements and agreements for use (including upkeep of driveway and taxes). If we hadn't done this and documented it properly as part of the closing, I might have had trouble either (a) asking that the driveway be moved off my property, and (b) when I sold 12 years later because I would have had to disclose it. 


Jan 14, 2012 04:18 AM #45
Debora Nichols
Residential Sales, Purchases, Investors, Vacation Homes - Phoenix, AZ
Realtor Anthem,Phoenix,Scottsdale,Glendale,Peoria

It is amazing the number of different responses. I too am not an Attorney and would not even want to guess on something like this. I am interested to know the correct answer. Of course knowing that the laws differs in every state and what mya be true for California may not be for one of the other 49.

Thanks for making us think.

Jan 15, 2012 05:01 AM #46
Ralph Gorgoglione
Maui Life Homes / Metro Life Homes - Kihei, HI
Hawaii and California Real Estate (310) 497-9407

Amazing set of responses from everyone.

This is exactly what this group was founded for.  So much input from people from various backgrounds, and different legal jurisdictions in different states.

Here's the answer to this week's scenario.

There are actually a couple of people who got this right.

There were many mentions of adverse possession and prescriptive easement.  These are along the lines of what the correct legal remedy would involve.

Although there is some discussion of adverse possession, the key element to that would be title to the property, not use of it.

The important difference between adverse possession and prescriptive easements involves the right that is obtained under these two principles.

A claimant seeking adverse possession seeks fee title to the disputed property.  A prescriptive easement is not an ownership interest, but merely allows a claimant the restricted use of the property owned by another.

The issue then becomes whether the use of the property in question seeks a prescriptive easement that is so exclusive that it constitutes virtual adverse possession.

Perhaps the most important element here is the statute of limitations to remove such an encroachment.  The statute of limitations to remove an encroachment in the state of California is 3 years of the encroachment, or the improvements will be allowed to remain.

In the case of Bob vs. John, the fence in question is only 3 feet high.  It is not creating exclusivity of the land it fences.  And more importanty the encroachment has been there past the statute of limitations of 3 years.

So in the case of Bob vs. John, Bob will most likely prevail due to the fence surpassing the statute of limitations, and falling within the definitions of prescriptive easement.

When property is transferred in California, a survey is not required.  Therefore, disputes regarding boundary encroachments are common.  Typically, encroachment disputes are common.


Jan 15, 2012 03:55 PM #47
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Hawaii and California Real Estate (310) 497-9407
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