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  1. #1
    bhudson is offline Junior Member
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    fence property line dispute

    What is the name of your state? Washington

    Our neighbors had to do a survey because they were adding an addition on to their house and this survey showed their property line is 3 feet on our side of a fence that has been there since before we bought our property 25 years ago. We thought adverse possession would make our fence the legal property line after all these years, but they claim since there was no record of previous surveys, their current survey takes precedent and they can take down our fence and put a new fence where the survey says.

    This is about 1/3 of our back property line so there will be a jog in the fence. It will look weird and we don't think they should be able to do this after all these years. They say they are doing this in 4 days. What should we do?
  2. #2
    BelizeBreeze is offline Senior Member
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    serve lemonade. They will get tired eventually.
  3. #3
    efflandt is offline Senior Member
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    If the fence was there when you bought the property, how do you know if it is yours or theirs? Does your legal description (or that of your neighbor) mention anything about a fence (within existing fence lines)? Perhaps you need your own survey to see if your other boundaries are where you think they are.

    Adverse possession requires more than just mowing the lawn. For example in Washington state (and many others) it requires paying property taxes on it.
  4. #4
    bhudson is offline Junior Member
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    Unhappy follow up

    Not sure why it matters whose fence it is - and I guess I'm not sure what this forum is. For some reason I thought I would get an attorney's answer or suggestions? Guess that was wishful thinking.

    To update, we did talk to a friend who is an attorney and handles many of these cases in Washington. We are an adverse possession state and according to her if you have an 'occupational line' - a fence being the most obvious - that has been in place for 10 years, that becomes the de facto legal boundary line. So doing a survey, even if it shows something different, doesn't really matter, according to her. I plan on presenting these 'facts' to the neighbors and hope that is the end of it. It seems such a waste to go to court over something that seems obvious and has been like this for decades, but people get weird when they think they should have more.

    They said the fence company was coming Tuesday so I have to write this up, present it today and then hang around Tuesday to see if I have to confront the fence people, call the police, or what.

    ye gads.
  5. #5
    Orcons is offline Member
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    You might want to do a little more research. It is doubtful that the existing fence becomes the "legal boundary line" without a court order. You probably still have to sue your neighbor for adverse possession. Until you do that the land belongs to the neighbor. Also in many states, I can't speak to the laws in your state, the ownership of the fence will make a difference. Typically in adverse possession cases the courts look to signs that you or your predecessors in title took action to claim the land. If the fence belongs to the neighbor then that doesn't show you are attempting to claim the land, does it? In that case you would need to show other things you did to that strip to justify your claim. There are still other things to consider like whether you need to have paid taxes on the strip (again this will depend on the laws of your state) or whether there was any kind of agreement about the use of that land between previous owners. If the original use was permissive you will probably have a tough time arguing it became adverse and that it did so long enough ago to have met the prescriptive period.

    Adverse possession cases are complicated, heavily dependent on all the facts of the case and specific to the individual states. You would be wise to have more than a casual conversation with a friend who happens to be an attorney.
  6. #6
    BelizeBreeze is offline Senior Member
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    Quote Originally Posted by bhudson View Post
    To update, we did talk to a friend who is an attorney and handles many of these cases in Washington. We are an adverse possession state and according to her if you have an 'occupational line' - a fence being the most obvious - that has been in place for 10 years, that becomes the de facto legal boundary line. .
    To-update, your friend is a legal moron.

    The Adverse Possession time requirment is SEVEN years. And you still do not qualify.

    In Washington, the duration of such possession is seven (7) years. The person claiming title by adverse possession must pay taxes and assessments on real estate during the time of adverse possession. Washington Code 7.28.050-.090.

    RCW 7.28.070
    Adverse possession under claim and color of title Payment of taxes.


    Every person in actual, open and notorious possession of lands or tenements under claim and color of title, made in good faith, and who shall for seven successive years continue in possession, and shall also during said time pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to the purport of his or her paper title. All persons holding under such possession, by purchase, devise or descent, before said seven years shall have expired, and who shall continue such possession and continue to pay the taxes as aforesaid, so as to complete the possession and payment of taxes for the term aforesaid, shall be entitled to the benefit of this section.


    RCW 7.28.090
    Adverse possession Public lands Adverse title in infants, etc.


    RCW 7.28.070 and 7.28.080 shall not extend to lands or tenements owned by the United States or this state, nor to school lands, nor to lands held for any public purpose. Nor shall they extend to lands or tenements when there shall be an adverse title to such lands or tenements, and the holder of such adverse title is a person under eighteen years of age, or incompetent within the meaning of RCW 11.88.010: PROVIDED, Such persons as aforesaid shall commence an action to recover such lands or tenements so possessed as aforesaid, within three years after the several disabilities herein enumerated shall cease to exist, and shall prosecute such action to judgment, or in case of vacant and unoccupied land shall, within the time last aforesaid, pay to the person or persons who have paid the same for his or her betterments, and the taxes, with interest on said taxes at the legal rate per annum that have been paid on said vacant and unimproved land.



    You were advised to get a survey NOT because it will show either you or the other party owned the land, but because, IF your deed reflects the land as surveyed and both are defective, and your tax bill includes the land in dispute, then you may very well have title under AP
    HOWEVER, if the fence is simply misplaced and the rightful owner has been paying taxes on the land under color of title, then all you have is at best prescriptive easement.

    I hope you didn't pay this 'attorney' anything.
  7. #7
    bhudson is offline Junior Member
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    update on fence issue

    Thanks for all the clarifications on adverse possession. Interesting to try and figure out things like who owns the fence and exactly what land we have been paying property taxes on, when everything is as we 'found' it 22 years ago when we bought the house.

    We did tell our neighbors we did not want them to move the fence and we thought if we went to court we would probably win. We had a good discussion with the fence company, and he said legally at this point the survey is the legal boundary and he could move the fence to the survey line, then we would have to go to court and try and prove adverse possession. If we won, the neighbors would then be liable for restoring the fence to its current location. They must have figured they didn't want to go through this hassle, so they left their back fence the same and put up new fences on their side boundaries. One neighbor agreed to let them move their side fence 5 feet into his yard, however, so they gained quite a bit.

    Guess now we need to decide if we should try to pursue this to make the fence the legal boundary, or just hope things are finally settled.
  8. #8
    urbansandz is offline Junior Member
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    To the original poster, the law of adverse possession is complex and often varies by state. I do not recommend basing your course of action on the words of those who have replied thus far. As far as I can tell, many posters have incorrectly stated that color of title or the payment of taxes is necessary in Washington. This is not the case. Nor is it correct that you need 7 years.

    While one of the posters correctly pointed to the RCW's, that is not the end of the story. I believe the correct provision is 7.28.010 in instances where the adverse possessor doesn't have color of title and is not paying taxes.

    Furthermore, the issue of fence ownership seems mostly irrelevant to the issue of adverse possession.

    For reference you should look up a case titled Shelton v. Strickland in 2001. I think that might be more informative than the posts thus far.

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