New home owner and possible boundary dispute

[Libdragonfly]

What is the name of your state (only U.S. law)? Pennsylvania

Hello everyone,

My husband and I just purchased our first home in May 2011. Over the last year we have been saving money to complete improvements this summer. We decide to build a small shed in our backyard first. In order to get the proper permits we were required to have a survey. Our neighborhood is supposedly an old military housing complex, however, the town had no records of our boundaries. We hired a surveyor and they came and installed the corner pins today. I spoke with the surveyor in the yard and he stated that our boundary is clearly being encroached upon on two sides.

One neighbor has an old rusted out chain link fence about 7-8 ft on our property line at the corner. The other neighbor has an old picket fence (2ft on our property) running the entire length of the property. The picket fence wouldn't be terrible if it was kept up on both sides. The neighbors have been taking pickets from our side of the fence to fix their side for years without replacing anything. It is an eyesore of crooked pickets, visible nails, and bleeding red paint through the cracks.

As new homeowners in the area with no previous knowledge of any easements do we have the right to request these fences be removed? Both of these neighbors have been living in the neighborhood 15+ years. We don't want to start any wars, but we don't want an eyesore or a tetanus shot waiting to happen on our property.

Thank you

 

[Ohiogal]

What is the name of your state (only U.S. law)? Pennsylvania

Hello everyone,

My husband and I just purchased our first home in May 2011. Over the last year we have been saving money to complete improvements this summer. We decide to build a small shed in our backyard first. In order to get the proper permits we were required to have a survey. Our neighborhood is supposedly an old military housing complex, however, the town had no records of our boundaries. We hired a surveyor and they came and installed the corner pins today. I spoke with the surveyor in the yard and he stated that our boundary is clearly being encroached upon on two sides.

One neighbor has an old rusted out chain link fence about 7-8 ft on our property line at the corner. The other neighbor has an old picket fence (2ft on our property) running the entire length of the property. The picket fence wouldn't be terrible if it was kept up on both sides. The neighbors have been taking pickets from our side of the fence to fix their side for years without replacing anything. It is an eyesore of crooked pickets, visible nails, and bleeding red paint through the cracks.

As new homeowners in the area with no previous knowledge of any easements do we have the right to request these fences be removed? Both of these neighbors have been living in the neighborhood 15+ years. We don't want to start any wars, but we don't want an eyesore or a tetanus shot waiting to happen on our property.

Thank you

If you didn't give them permission to use the land the neighbors may have an adverse possession claim. here are the requirements:

Paramount among the elements required for adverse possession is proof of
possession for 21 years.2 However, mere possession of the land by a claimant is not sufficient to confer
title under this doctrine. The claimant also must establish by
credible, clear, and definitive proof that all the other constituent
elements of adverse possession exist. The possession
must be actual, continuous, exclusive, visible, notorious, distinct,
and hostile. Moreover, court opinions have provided
criteria for establishing each of these elements,3 and a person
who claims title to property through adverse possession is
held to strict requirements of proof.
As title to land may be acquired by adverse possession, an
easement upon land may be acquired under the doctrine of
prescription. As with adverse possession, a 21-year period is
required in order to establish an easement by prescriptive use.

 

[Libdragonfly]

Again we are new owners

We just bought the house last year and we have only waved to the neighbors at this point. I haven't spoken to them at all. We just had the survey completed today (May 14th 2012) and did not know they were on our property when we purchased it.

I have heard that there is a 21 year timeline for the adverse use factor. Did that time start when we bought our house last year or did it precede us?

now that we know and have legal proof (the survey) we will be discussing the issue. However, we had no idea they were on our property when we purchased in May of 2011. There were no easements disclosed to us and no indication that anything was amiss with the property.

 

[FarmerJ]

It appears that the time clock would have restarted with your purchase , your best bet may be to use the links above , consult with a atty and consider having a atty prepare for you letters that inform them of the survey. ( Does your TWP have fence set back rules ? call them , if they do not have local ord that would forbid new fencing from being placed just a couple inches to your side of the lot line and if your planing removing these two fence sections and replacing them , this could be mentioned too) why use a atty so that way it may reduce the odds of either of them fighting you. If they have any dispute with you as to lot line location they will have to have own surveys done and in end a court would have to decide. (even if a former owner gave them verbal consent to put fences where they are the verbal consent more than likely expired with your purchase but again a good choice is to speak with a atty)

 

[latigo]

It appears that the time clock would have restarted with your purchase . . .

Wow!

In other words it somehow appeared to you that Pennsylvania’s 21-year statutory period - following which a person might claim a property right under principles of adverse possession (42 Pa C. S. 5530) – here the neighbors' encroachments upon the OP’s deeded land – begins fresh, anew, that is, “the time clock returns to zero” ” each time the adversely occupied property changes ownership?

Do you recall the form of the appearance because it is definitely an illusion?

If they have any dispute with you as to lot line location they will have to have own surveys done and in end a court would have to decide. . .

Apparently the apocryphal vision that inspired your response neglected to include any mention of the “Doctrine of Boundary by Acquiescence” a/k/a/ “Boundary by Practical Location”. Long recognized principles of law, which if applied here - and there seems reasonable cause for doing so - would surely prevail over any such surveyed lines.

 

[justalayman]

Libdragonfly;3051396]We just bought the house last year and we have only waved to the neighbors at this point. I haven't spoken to them at all. We just had the survey completed today (May 14th 2012) and did not know they were on our property when we purchased it.

a survey should be performed at the time of purchase with the sale contingent upon the lot being sold being equal to the lot described in the deed. Many many people make this same mistake.

I have heard that there is a 21 year timeline for the adverse use factor. Did that time start when we bought our house last year or did it precede us?

actually, the doctrine Latigo speaks of: boundary by the doctrine of acquiescense, also requires a 21 year period.Given the condition of the fences, it suggests that may be provable.

now that we know and have legal proof (the survey) we will be discussing the issue. However, we had no idea they were on our property when we purchased in May of 2011. There were no easements disclosed to us and no indication that anything was amiss with the property.

sometimes what you see is what you get, regardless of what the paperwork says. You can attempt to eject them from your described lot. Their response should be used as a suggestion as to whether it might be required to go to court (and spend likely many thousands of dollars) to attempt to reclaim your described lot. It may not be successful.

If you are rebuffed, you should likely consult a local lawyer versed in real estate law to give you an opinion at your chances of a successful action to eject the encroachers.

 

[154NH773]

Take lots of photos of the property on both sides of the fences to show the condition and maintenance of the property by the neighbors.

Find out when they purchased their properties; (have they actually been around for 21 years, or have access to information from prior owners of their property going back that far?). This can be determined by researching their deeds at the registry.

Talk to the previous owner of your property to determine if he had ever given permission to place the fences where they are located, and/or whether he ever objected to their placement or considered them to be his fences and/or the property line. Get affidavits from the previous owner on these points.

After doing the above, I would follow the advice of FarmerJ and have a lawyer write to ask them to remove the fences from your property or you will have them removed. If they do not remove them in a reasonable time, have them removed (carefully so as to do the least amount of damage) and retain them so they can be given to the neighbors if they insist. By doing this, you will force them to make the first move in initiating a court action if they chose to proceed. I would (my personal opinion) continue with the removal, even if their lawyer tells you to stop; although if they win an adverse possession judgement you may be then liable for their fence. You MUST stop removal only if ordered by a court.

The chances are that they will not make an adverse possession claim, as it would be costly for them to do so. If they do make such a claim, the above documentation may help you defeat the claim. If you are not confrontational in your demands, you may resolve this without making enemies of your new neighbors, but in my opinion, you should not allow it to continue the way it is, no matter what the outcome.

As to latigo's "Doctrine of Boundary by Acquiescence, Boundary by Practical Location", that is a more difficult claim for the neighbors to make, as it generally requires all parties to agree that they considered the fence to be the boundary for the full 21 years.

 

[justalayman]

As to latigo's "Doctrine of Boundary by Acquiescence, Boundary by Practical Location", that is a more difficult claim for the neighbors to make, as it generally requires all parties to agree that they considered the fence to be the boundary for the full 21 years.

I have to disagree with it being more difficult. I believe it is just the opposite since the evidence of the acquiescence is the fence being where it is. It isn't that the parties have to agree that that is the line in some formal meeting. It is simply that each has accepted the fence as the property line regardless of knowledge, or lack of, of the true property line. Failing to either demand the fence be moved to the deeded property line or a letter of permission to the encroaching party from the owner of the lot being encroached upon shows there was an acquiescence to accept the fence as the property line. I see it as more of a negative option action. If you do not object, you have acquiesced to the placement.

 

[154NH773]

It is simply that each has accepted the fence as the property line regardless of knowledge, or lack of, of the true property line.

That is generally the key point in the claim, that "each has excepted the fence as the property line." In this case, the current owner (OP) has not "accepted" anything, and there's no evidence that the previous owner(s) of any property "accepted" that the fence was the line. In caselaw I've read, that is the point in this type of claim that most often causes the claim to fail. I've seen a lot more successful claims of adverse possession than successful examples of "Practical Location". It's not simply that the fence creates the line and proves acquiescence; the minds of the parties must be proven also. I'd be interested if anyone comes up with caselaw that says differently.

 

[ncchicken]

how about talking to the neighbors

congratulations, on your new home purchase
hope you are close to shopping and work, hope the schools are great in the area, and lots of entertainment venues close by.
if the first thing your neighbors get, is a letter from a lawyer, its gonna be a great place for you to live LOL
that neigborhood knows each other, and you are an outsider. if your first choice is considering a lawyer. you will stay an outsider, know what i mean.
Here is an idea, why dont you let the scrappy fence simmer for a bit, get to know your neighbors. they will clearly see that the new marking pins are on the wrong side of thier fence ( actually the fence is on wrong side, maybe
and then offer to pay 1/2 on a new fence, in a location you both agree to.

you mentioned it was all deeded off long ago, if you understand land measurments discrepencies are the normal buisness of the day
Old surveys were often measured using a Surveyors Chain. These were literally chains made up of 100 links. Each Chain was 66 feet long. Each link was 0.666 of a foot...or 7.92" or with poles that were really just wood poles 16' 6 " take the 6 lots that share road frontage with you, if measured with our new technologies like gps it will not match the added measurments from the 6 deeds.
new technology does not measure the lay of the land. now who of the 6 properties lost the distance? none/all is probably the true answer.
the only way to truly know is by measuring all the way from a permenant benchmark, maybe miles away. in PA most are on the railroad tracks ( usually every mile)

they can get a surveyer to say that that fence is every bit in thier yard, everyday and twice on sunday. due to these same descrepincies.and the courts will have to figure it out.
here is the bottom line in my opinion, and it is just opinion. you liked your place when you thought it ended at the fence, make good neigbors, and ask about what thier recollection of the line is. If you make bad neighbors its not gonna matter , a 10' brand new fence on your interpritation of the line is not gonna be tall enough to keep the trouble out. and you say on both sides, good grief.

you want to have good neighbors, be a good neighbor. you have gave them a few handwaves, and now consider a letter from a lawyer.
you know that wont get you any points. you will get more bees with honey than you will vinagar. make friends with them, then mention the shape of the fence, share cost of new fence, and decide on location of it together, you have your position from the surveyer, but is 2 feet worth a bad neighbor? for all you know the people who sold you the house put up the fence, and your new neighbors have always hated it, but use parts from one side to fix the other, with permission from ex-owner.