Your survey indicates that the fence encroaches your way; your neighbor’s survey indicates that the fence encroaches in their direction; or perhaps you split the cost of a survey and you found that the fence encroaches one way or another … what should be done now?
First try to find out the following facts:
- Who built the fence;
- When was the fence built;
- Who all vouches for who and when the fence was built;
- Does everyone agree to the timeline;
- Is there a survey which shows the fence was in place during this time been recorded; and
- Is there any other physical evidence to indicate when the fence was built.
Who built the fence could be important because its removal might be construed as a certain type of property destruction which might allow you to claim treble damages as well as reasonable attorney’s fees and costs.
Evidencing when the fence was built, especially if in excess of 10 years, is a very significant determinant of whether or not adverse possession has been perfected.
However, there is a big difference between having adverse possession perfected and having title recognized. Based on your newfound awareness, as Rod Serling used to say: “You have now entered the Twilight Zone“.
What good is a right that is not recognized!
Well, you have four basic courses of action. They are the following:
- Do a Boundary Line Adjustment (“BLA”);
- File an Adverse Possession or Quiet Title Action;
- Negotiate with your neighbor and then Record an Easement; or
- The highly unrecommended – Do Nothing!
I will go through the benefits and detriments of each of these four choices (and will return to provide forward links to the content of each). But by way of hint, if you and your neighbor can keep your heads about you, to Record an Easement is most likely going to be your best bet!