If choosing only a fence or a retaining wall, which would serve to better prove adverse possession? In the above photo we have both. There is what appears (at least from this side) to be a 4 – 5 foot fence in the background. In the foreground is a retaining wall of roughly 1.5 feet which though not failing is well on its way to succumbing to the weight of the land behind it.
Assuming this landowner had a survey performed and found out that the fence line was beyond the line of record title and the fence had been in place for the last 10 years, who would own that strip? Normally with that determined, most of the other facts fall into place. Though the land isn’t tightly manicured, it certainly has been mowed. Also, there is a chair behind the left bush which would suggest the neighbor enjoys sitting in this overall space. Also, it appears that there are limbs of the large central pine tree in an effort to enjoy more natural light. All of these are uses which though not directly within what might be a few feet strip in back or wedge can be used to further buttress the idea that there is ownership to the fence even if the record doesn’t so reflect.
Yet, what if the fence was closer to this landowner than the line of record title would suggest? Well, again it would most likely go to the fence. Though it doesn’t enclose fancy building behind it, it does run a straight line perpendicular to the road. (I know that’s not discernible from this angle, but trust me.) Also, on the other side of it there is a parking lot. So, the use is very different. Again, provided these differences have been in place for 10 years or more, there is virtually no question that the property owner in back would prevail when claiming adverse possession.
Now turning to the retraining wall, note it is much lower than the fence. Though not convenient anyone could jump into the backyard. In fact, with the exception of the wooden rail being on the left side of the stoop – suggestive that it assists the owner to come down the steps as opposed to inviting others – i.e. the majority of others being right-handed – up the steps. Yet, couldn’t one argue that because of the stoop and access that there isn’t exclusive use? Perhaps. And one could also argue that there hadn’t been maintenance of the retaining wall, so how are you going to determine that it is the boundary. In fact, does the boundary run along the retaining wall’s top inside edge or at its toe?
The benefit of having it is the former is that the landowner with the chair is no longer responsible for the retaining wall unless something specific is done which might create issues. This might include planting trees, shrubs, or bushes which damage the retaining wall with their roots. Or this might also be caused if adding more pressure by perhaps installing a swimming pool.
Generally, between a fence and retaining wall it seems that the fence is the greater indication of adverse possession. But let’s note this. First, if the neighbor who owns the fence has placed it so they have space to maintain it and do in fact maintain it whereas the other person leaves their yard in an absolute state of disrepair, is the fence still theirs? The answer is not necessarily. One of the primary reasons for adverse possession is to allow land to go to its highest and best use when someone else doesn’t care for it. In such a case, unless perhaps a protected wetland, the fence will have almost arbitrarily separated it from the true owner … of record title.
By contrast a bulkhead is more of an initial project. Also, though it may be properly placed because of survey to mark a boundary. It may also be placed for the utility of protecting against the collapse of land and as such be placed in a location which most strategically serves this purpose. Going back past ten years to divine those intentions might be rather difficult. One thing that is certain is that neighbors owe each other a duty of adjacent support. This is to specifically say that they are not allowed to have their property negligently fall onto their neighbors land.
This can be a hard pill to swallow though. An upland neighbor very likely will want to delay expending money which will be of little direct benefit for as long as possible. The lowland neighbor though might be sweating bullets with concern that the retaining wall will fail and ruin everything in its path. Notably, don’t expect others to be proactive. Instead, an ‘event’ must occur before you are likely able to get insurance companies to sort out a mess.
Any definitive answers as to which one is better? No. So, if you really want to mark your bounds, consider having a surveyor who will identify the line of record title and then provided you have no cloud on your neighbor’s title or vice-versa and for good measure arrange temporary access with your neighbor on the condition that you will restore any landscaping to as close to its original condition as possible … build a retaining wall built to last and then place a fence on it.