My question involves real estate located in the State of: North Carolina
I purchased a home in an active historic district in North Carolina in January 0f 2005. I did not have a survey performed, and there is not a survey on file for the property (or for the adjoining property). The county plat shows the lot as being 66' x 150'. The back half of the northern line, the eastern line, and 2/3 of the southern line are enclosed by a chain link fence. There is an 11' gravel driveway and garage on the northern side of the property, and this is the line that is in contention with my neighbor, Mr. Smith. The driveway runs all the way to the foundation of my home.
The garage was built circa 1930, and is an open-door, galvanized steel sided building with the original standing seam tin roof; it is considered "historically contributing" by the historical commission. Its northern side runs directly in line with my driveway to the street.
It appears from anecdotes that the first divider of the property was a hedge anchored by 1 or 2 large trees. Prior to 1960, Mr. Smith's parents got into a dispute over the trees with the daughter of the original owners of my home, and they had the trees removed. The owners of my house then had the hedge removed in retaliation.
Sometime in the 1990's, the then-owners planted several Bradford pear trees and installed railroad ties and mondo grass to delineate the property line, again running directly to the edge of the garage. Most of the trees were lost to wind and over-crowding, and the railroad ties rotted and became unsightly and unsafe.
In early 2008, I approached Mr Smith about my removing the last Bradford pear tree, the railroad ties, and themondo grass, and subsequently putting down large edging stones for a border. Mr. Smith had no problems with this plan. At this time, we both agreed that neither of us were certain where the actual line was, but we agreed that it was logically the historical line and the edge of the garage. I had the tree removed and the grass and ties dug up. I buried 4 of the edging stones, and asked Mr. Smith to approve their placement. He said they were fine, and the rest of the edgers were installed up to the corner of the garage and several more loads of pea gravel were dumped in the driveway.
In late summer 2008, I decided to have the chain link fence removed in the back, north-east corner, in order to have a large wooden privacy fence built and a patio installed. I spoke to Mr. Smith about this, and he agreed that my contractors could use his land for driving equipment, and I would get my contractors to clean up that portion of his badly over-grown yard in the process. We then took down 2 trees on the line (we agreed that they were mine) and the fence, and I paid to have his yard cleaned up and all the debris was taken to the landfill at my expense.
At this point, I decided to have a survey performed before the privacy fence was installed. The surveyor put out flags in his preliminary measurements to indicate that the property line was actually 6"-7" over on Mr. Smith's line. He never installed permanent markers, he never drew a map, and he never sent a bill for his work. Mr. Smith was very angry about the placement of the flags, and he told me to move my garage and my driveway to the appropriate line. I told Mr. Smith that i doubted even a court would require me to move a 75+ year old garage over 7". We then went ahead with the privacy fence installation and the patio, after obtaining the necessary permits; we did move the fence (which ties directly into the back wall of the garage) in approximately 15" inches.
At this point, I offered Mr. Smith $6,000 for the .0020087 of an acre (87.5 sq ft) for the land, solely in order to resolve any possible future conflict. He refused, saying that he would never relinquish an inch of his property to anyone, for any reason.
I have since married. Mr. Smith informed my husband this morning that he intends to install a privacy fence along the property line, even if he installs it in our driveway. He says that he has contracted for a survey. He will be required to get a certificate of appropriateness from the historic commission for the fence (although I am not sure if this will be a major or minor permit (I would be informed if it is a major permit, as this requires a public commission hearing and discussion from the floor)).
We believe that we meet the legal criteria for adverse possession in North Carolina, assuming that this 6-7" strip of land really is not ours. 1 - "Open and Notorious Use" - we have engaged in open use of the property, we have improved and maintained it, and we use it in the manner than any other owner would use. 2 - "Hostile Use" - I do not believe that we meet the "trespass test" and I am not sure if we meet the "objective" test. I do, however, believe we meet the "good faith" test, as we have 100% believed that the actual line was the line of the driveway and garage since I purchased the property. 3 - "Continuous and Exclusive (with Tacking)" - The property line has been considered to be the edge of the driveway and garage since the 1930's, with no apparent dispute from the adjoining landowner.
We would like to be proactive in this situation, rather than reactive. We have tried to maintain a cordial and respectful relationship with Mr. Smith, and after today, we have realized that this is one-sided.
Are we better served to make him PROVE that our driveway and garage are over the property line and THEN try to enact adverse possession? Is filing for adverse possession saying that we ADMIT that we are in the wrong? What would be the best way to handle this?
Thanks in advance.