A Fence on my property
What is the name of your state? Stafford, Virginia
Hello, I am in the process of selling a rental property I own and have today found out the buyers survey came back and showed that a neighbors fence is 6.5 feet on my property. We are going to settlement at the end of next week and I need to know if the neighbor does not remove the fence on my property can I tear it down myself? I called the neighbor to advise them and they blew me off! Thanks for you help!
You could tear it down, but maybe not legally. If you do it and you don't have a right to do it, you could jeopardize a sale by creating a cloudy title issue. If you weren't selling it and you were planning on keeping it for a while and are willing to get into a fight, then I would tear it down - with the knowledge that if you lose the battle you start, you may end up having to pay to replace the fence on your property. Hopefully, this unlikely scenario will not occur.
The problem lies with adverse possession or prescriptive rights. If the fence has been there long enough and the neighbor has followed some or all of the right procedures for stealing your land, he may have a case to prevent you from taking the fence down AND for stealing that portion of your property the fence is on. The same for prescriptive rights, which wont let him steal the property, but will let him get an easement on your property.
For either adverse posession or prescriptive rights, the fence will have had to be there for several years. In my state it is 7 years, and in other states it is 20 years. Check your state to see what the law is and find out how long the fence has been there. Another issue is whether they did this with your (or previous owners of your property, if any) permission. If you or a previous owner DID give him permission then the neighbor CANNOT claim a right to your land. If you DID NOT give permission, then the neighbor MAY be able to claim a right based on other conditions. The logic seems backward, but there is a reason for it (scope is too big for this discussion, but its available everywhere).
Bottom line is if the fence has been there for only a few years or less and if you or a previous owner of your property knew it was on your property and allowed him to do it, then you could tear it down. But just be prepared for the neighbor to take you to court over it - even if you end up winning, it could screw up a sale. A better strategy would be to try to get him on your side.
If you are concerned about tearing down (its a reasonable concern as judges don't really like it when people do things like this sometimes), send him a letter explaining the situation and telling him he has xx days to remove it or you will have to do it yourself. Be prepared for him to get an injunction preventing you from tearing it down. Then you will have to go to court if he gets one. If the judge doesnt award one to him, you can tear it down knowing there wont be any repurcussions
Further Fence Issues
Steve thanks for your reply, I have already sent a CRRR letter to the neighbor. The fence was not approved by the home owners association nor was it on the survey of the neighbor when they purchased the house approximately 10 years ago and the fence was there when they purchased the house. You also mention the time frame in California being 7 years, where would I find out how long it is in Stafford, Virginia? We are trying to work this out, and they are stating they will take the fence down but that it can not be taken down by this Friday, which is when the closing is to happen. I am now trying to find out if a notorized letter signed by the neighbor stating that the fence will be removed by say November 5, 2006 will allow us to move forward with the closing? Any further info would be appreciated!!!! Thanks again for your help! Trulyblestx4
To establish a claim of Adverse Possession in Virginia, the party making the claim must prove ALL of the following:
possession was actual, hostile, exclusive, visible, and continuous under a claim of right for 15 years.
Kim v. Douval Corp., No. 991092, Fairfax County Cir. Ct. (April 21, 2000)
If you have not owned the property for that amount of time, or the fence has not been there for that amount of time, then you have a clear right to either tell the neighbor to remove it, or have it removed and sue the owner for the cost of removal.
The neighbor would be required, under the statutes, to prove that the former owner did not give permission for the fence's construction and that all other elements were satisfied.
Will they sign an notarized agreement to remove the fence? See if your attorney can draft something that would be acceptable to the buyers, and perhaps offer to have the title company hold an escrow to cover any legal follow up costs that might be incurred? That way you still could potentiallymeet your closing date.
Originally Posted by trulyblestx4
Would you mind giving us reasons why someone would have a right to your land under any circumstances? I'm not following this discussion at all. It seems to me that whoever put in this fence, really screwed up. It is their responsiblity to know the property lines. 6.5 feet is a huge mistake.
Originally Posted by Dave Stevens
Yes, they did, buty the property owner also has a responsibility to react and respond within a reasonable amount of time to prevent any potential assertion of rights by adverse possession. You can't just ignore an encroachment when it occurs.
Originally Posted by proeye
Do not hijack someone else's thread. Start your own.
Originally Posted by preadyoff