Fence line vs Survey

Perplexed · Apr 12, 2017

I know about this legal concept because I was a party to this when I bought my house. It came with a sheaf of paperwork, including a signed and dated receipt for the construction of the fence across the back of the property. The receipt indicated the fence had been built about 20 years prior; the only problem was that it extended about 5-10 feet onto the neighbor's property. You could see it from their driveway and the main road, too. Apparently the neighbor never bothered with it, and when the current owner bought that property, the surveyor informed him of the discrepancy. The new neighbor approached me and admitted I could try for adverse possession, but we worked it out amicably.

easy · Apr 12, 2017

I wish it was a simple as moving the fence. But the junk pile, vehicles, recent sheds, animal pens etc make it a bit more frustrating. I'm not planning on just dozing down the bad fence. The real question is when did the fence go up and does that timeline change/restart with the subdivision of the property. More research required on that.

Jeff405 · Apr 12, 2017

Show us a map picture. Pictures are worth a thousand words on the internet.

mtnboomer · Apr 12, 2017

If the survey pins aren't visible anymore, have the property line resurveyed and marked. Show the new survey to the neighbor and indicated where they have encroached on your property. Ask politely for them to move their stuff off your property. If they refuse, then go to an attorney and file a suit.

Surveyor1653 · Apr 12, 2017

@easy please see responses in blue below.

There's a lot in play here:
Under what kind of deed was your title transferred to you? ?Explain please? Warranty Deed vs Quit Claim Deed. In a WD (particularly a General Warranty Deed), the Grantor is warranting title to be free of defect. If there is a defect in the title, the Grantor will have to defend it and make you whole if you lose. With a QCD, all the Grantor is doing is saying, "I give up all claim to any rights I might have had in this real property except those specified herein." Always get a WD if you can. For those who ever buy from Fannie May or Freddie Mac, forget it; you're getting a QCD, period. Don't even ask, you'll get DQ'ed out of the bid process.
Did your title work include any prior survey documents? Yes This could potentially cause you issues. Depending on what was written on the Seller's disclosure, you may have cause against the Seller if they knew about this issue and didn't disclose it. That's hard to prove. However, since there were previous surveys in the title commitment you received at closing, the court may have expected you to know then that you had an issue from the beginning. It'll depend largely on what the surveys show on the face of the plat. If they show a note on the property line indicating the encroachment of the trash piles or junk cars (and they should have if they were there when the survey was done, as this is evidence of a potential encroachment or unauthorized use) then the court will say you absolutely should have known that you had an issue. This, of course, goes back to my previous statement about proving that the previous owner knew there was a problem. If the survey they paid for showed a problem, then they absolutely can be expected to have known about it.
How long has the neighbor been the neighbor? Long story - Neighbor was 'no cost' tenant on parents land. Parents sold part of property in dispute to daughter. Does the 15 year rule still apply or does the clock start over? Depends. There's a principle called "tacking" where, if one land owner satisfies all of the requirements to prove adverse possession except for the time required (say 13 of the requisite 15 years), then the next owner can't just live there for the remainder of the time (the remaining 2 years) and then claim adverse possession. That would be "tacking" his time onto the previous time. Not allowed. Also, it doesn't matter whether your neighbor was paying rent or not. The land's not his. It either belongs to his sister or his parents. They're the ones you're up against. He's just a tenant. If that's the case, you're done talking to that guy. Again, get a title attorney to advise you. I'm not one, and this isn't legal advice.
Did your surveyor pin all of your corners and mark the line when he did the survey? Yes
Did you get an actual boundary survey done, or a Mortgage Inspection? (I'm assuming boundary since you had it done a couple of years after you bought your house)
Boundary survey
Your best bet is to have a cordial conversation with the landowner next door. Ask him politely to relocate his junk and structures. Did this, didn't go well. Stiff neck hairs and terse words about timelines. If that doesn't work, then you can engage a title attorney to potentially send a cease and desist letter with notice to vacate, accompanied by the plat of survey. Where you go from there is up to you under counsel from the attorney.

bryanherron · Apr 13, 2017

easy said:
How does this work. Fence line is different than the survey in that the adjacent property fence is on my side of the surveyed line, in some places as much as 18 to 25 feet. Within that area the neighbor has structures and animal pens and a rather abundant junk pile.

The fence has been in place for an unknown number of years. We bought our property four and a half years ago and had survey completed approx 18months ago. Neighbor claims that the fence line will win out in court as the 'traditional' property line.

Anyone have any experience with such things and/or suggestions?

I believe that Oklahoma law says that if the property has been used in an "Open an Hostile" nature for a duration of 7 years the possessor can file for and receive title. There's a question about him owing taxes on the portion of land for all those years and a refund to you for the 4 years. The real question is if the 7 years starts over with your purchase. If so, you have until the end of that 7 year period to wait for him to go on vacation and move/build a fence on the property line. All you have to do to reclaim the property is deny him access for a single 24 hour period.

I have heard that there is a street in between the St John's hospital complex that they own and the hospital closes it off for a day at least once every 7 years to keep the city from having a claim. It's called acquiescence, if you do nothing in that 7 years you forfeit your rights. That is what I remember from land law classes when I was in school 10 years ago.

mtnboomer · Apr 13, 2017

Bryan is likely correct, but speak to a title lawyer first to get all the details.

OKCShooter · Apr 13, 2017

Easiest resolution if you don't actually want the extra land:

Sell it to him.

Pokinfun · Apr 13, 2017

I wait till he is at work, get a skid steer and push his crap back, and toss up a new fence. then see if he has enough extra money to get a lawyer.

easy · Apr 13, 2017

He's pretty perturbed that I even mentioned that I wanted my land back. Looking for legal advice IRT fence and time.

Fence line vs Survey

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