Submitted by admin on Fri, 08/15/2008 - 15:08
My neighbor had his land surveyed and, it appears, my fence is on his land. The fence existed before I bought my property, 7 years ago. (I believe it was installed around 10-15 years ago). My question is: will I have to move the fence if my new neighbor wants me to? -- John, Taunton
I hope you brought your new neighbor a cake when he moved in, John. If not, you may be digging a lot of holes very soon. Your question raises issues about adverse possession, where one person claims ownership of another's land based on his use of that land for a period of time specified by statute and/or case law. When I asked attorney Steven Bloom of Brookline about your question, his first observation was that surveys are not always accurate. (Attorney Bloom suggested that there are many factors to consider in appraising the accuracy of surveys, including: the accuracy of the legal descriptions in the deeds in the chain of title of both parcels; whether the parcels are part of a subdivision and, if so, whether there was a subdivision plan filed; how the survey was performed; whether the survey was a full-instrument survey, rather than merely a mortgage plot plan; what markings were used by the surveyor; and the topography of the land involved.)
But assuming the survey is accurate, attorney Bloom believes your current use of the neighbor's land may constitute a trespass and that your neighbor could obtain a court order requiring you to remove the fence or allowing him to keep the fence and use his land on either side of it. To establish an easement by prescription or adverse possession of land, you would have to prove open, continuous, and adverse use (without the owner's permission) for at least twenty years. Even if you added the years the fence existed before you owned the property (as you may under a concept the law calls "tacking"), you would fall several years short. If your neighbor takes no action with respect to the fence, and your adverse use continues for a sufficient period of years, then you may eventually be able to claim the land or an easement over the land. For that reason, you may consider doing nothing, unless your neighbor asks you to move the fence (and then you should move or remove it).
If I were in your situation, I would try to allow good fences to make good neighbors and ask your neighbor to enter a simple agreement whereby he would give you permission to use his property for the fence until he withdraws that permission, or until the fence is replaced, whichever comes first. In that case, your continued use of the land would not be "adverse," your claims to possession or right of easement would disappear, and life would go on, peacefully.
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