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Neighbor's fence encroaching on my property.

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MommaM

Junior Member
I am in Pennsylvania.

We had a back line survey done before we drew up plans to put in a fence. Found out that one of our neighbors had put a fence on what is now our property, 3-4' over our property line for about 20 feet. They told me this was discussed with the previous owners, as the fence was put on the top of a sloping hill. The previous owners all decided this would be safer, to prevent anyone from falling down the hill. The fence was built nine years ago.

No encroachment recorded for the title insurance company to pick up.

The easy answer is to have them take the fence down. Problem is, I lik the looks of the fence, and it's on the top of what could be a dangerous slide down hill. And only part of this section is on my property, part on the next door neighbor's property.

Ideally, I would like my section taken down, I build up the property with a retaining wall to stop the horrible erosion of my dirt into their yard, and then I fence in my own land. That is if these actions didn't make me the boob of the neighborhood.

We are checking into whether or not the town will even let us sell that little section to them. Let them worry about being liable for the erosion, even.

My lawyer told me the law in PA for possession is 21 years. Not sure if that started when the fence was built or when we took ownership of our property.

Short of tearing the fence down, is there any way to write up an agreement that we will allow the fence there, let them use the property, retain all rights to our property, with the option to take the fence down at any time?

I hired the lawyer on Labor Day. The fence in question was put in about 1.5 feet from my arbor vitae trees. Erosion on the other side of the fence was so severe that the dirt washed away from the tree roots, they were dying and ugly, I tore them down with intentions of replacing them with much prettier plants. WHILE tearing them down the neighbor comes out screaming that I'm out of control, how dare I do this to her property, change the view from her yard, adding to the erosion (roots are still in until replacements arrive), that I would hear from her lawyer. My lawyer was over in a half hour.

Yes, my lawyer advises I take the fence down. Or sell the property. Any FREE advice she may have forgotten? I don't think we need the property, I'd just like to have it NOT be mine and cloud my title in the future. Please help if you can. ;)
 


FarmerJ

Senior Member
Your atty can do a number of things for you ranging from telling the neighbor that any verbal agreement they had with previous owner was just that a verbal agreement and nothing in the sale of the property to you gave her any legal right to that property so now she has to remove that fence or face whatever consequences he list. Your atty can also send her a letter telling her that if she doesnt agree to sign a lease for that strip of land that her end of the legal bills she will face when she is sued will make her wish that she had kept the fence on the lot line or wish she had agreed to lease that strip from you . It really is all up to you as far as what you want to do, if she wants to claim adverse possession let her spend the money on a atty of her own and try to prove her claim. she wont win since you were told already that its 21 yrs the time clock started over when you bought it,so now she would have to meet your states laws for adverse possession and make her claim 21 yrs from the date you bought the place.
 

Orcons

Member
It does not sound like there is an adverse possession claim but not for the reason stated in the previous post. From what is given it appears the use was permissive which is not adverse. The clock does not start over when the OP bought the property. What matters is how long the person making the claim has used the property. If I recall correctly, you can not tack in Pennsylvania in which case the clock would start over when whoever is making the claim purchases the property but how long the OP owned his or her property is not relevant.

Each state's laws are different so you need to check PA law or consult a local attorney.
 

nextwife

Senior Member
I have also seen the encroached upon parrty recieve a quit claim from the encroaching neighbor of any potential rights the encroachment might create on the encroached land, in exchange for allowing the encroachment to remain.
 

Ohiogal

Queen Bee
Was a survey done? Encroachments are not normally recorded -- actually i have never seen a recorded encroachment but Nextwife may have. Easements are. But not encroachments. So was a survey done? Because that should have picked up the encroachment.
 

MommaM

Junior Member
Yes, had a survey done.

We have planned to put up a fence, mentioned this to the neighbors. Neighbors warned me that the lady behind us had others take fences down for not being to code. So I had a property line drawn to make sure our fence wouldn't encroach on anyone else's property, found out HER fence was on ours property as described above. I've had a fence plan approved by the township, too, so I'm not worried about actually putting up my own fence now.

I've been told that her fence on our property may create problems with future owners (and us, of course), as the property could eventually become hers. This reduces the lot size, and apparently the collateral of the entire property agains the mortgage. The fence in question has been there since 1997, with unrecorded (oral) permission by previous owners of encroached upon property. But to protect what is now MY property in the long run, I have to take action or risk loosing the property all together.

Hmmm... So what to do? I don't mind the fence there, except for the severe erosion behind it. The fence was put in about 1-1.5 feet from my arborvitae, which then suffered severely, as the dirt on the other side of the fence washed away exposing their roots. We cut the trees down last week, with every intention building the area back up and replacing the plants. The neighbor threatened to call her lawyer for me cutting down my trees and ruining her view. Pretty sad, actually, considering the fence she placed on my property is what started the problem in the first place.

I would like to keep the fence there. What is an "encroachment agreement"? I do have a local attorney. She is a wonderful, very smart litigation lawyer, but this isn't her specialty. But I have come across "encroachment agreements" that can be revoked at any time by the property owner (me). That shows they acknowledge the property is mine, I've given them the use of the property, but could take that back at any time. That sounds very reasonable to me, I'm just not sure they would sign it. Well, I'm sure the husband would, but the wife has been VERY unreasonable, and the property is in her name.

If they DON'T sign something like that, I feel my hand would be forced in eventually removing the fence. Have the nice lawyer write up a letter giving them the opportunity to remove the fence and plants in the area their own property w/in a certain time frame, then doing it ourselves if they don't comply. This is not difficult work, (re)moving the fence, putting in a retaining wall, etc.

My lawyer said that if they start an adverse possession action agains us BEFORE the 21 years is up, that precedence here would show that action alone proves they acknowledge the property is ours and they would loose. My lawyer is the one who told me to record the encroachment with the state deeds and titles, or something like that. The town commissioner is the one who told me a fence on my property (I have to disclose it, anyway) would cause a cloud on my title come sale time.

In the meantime, I will relandscape the area to make it as pleasing to us as possible. With the fence up. Even though she now wants to dictate that the rest of our fence match her custom made fence so her view would be more pleasing. Yes, our fence is the same height (4'), but not the same design as her custom made fence. And since there is a very gentle slope down to her fence, she wants ours even shorter so it doesn't overtower hers (things she has told the commissioner).

Good fences make good neighbors. Same is true that bad fences make bad neighbors. I sure hope we can figure out what an encroachment agreement would entail, and that they would sign it.
 

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