Adverse Possession and Fence Placement

[ruthie]

I bought my house 5 years ago in Lansing Michigan. There was a fence on both sides of the back yard. One was next to my garage with a gate to give me access to my land and the side of my garage approx 24 inches. The other has a swing gate next to my other neighbor. Last year one fence was rebuilt, attached to my garage, and placed approx 1 inch on my driveway. The gate has been moved so now I have no access to my land or the side of my garage. I have asked them to move the new fence and they are claiming adverse possession. They have a signed affadavit stating a woman lived there for 27 years and used the fence as the property line. I had a land survey done and it clearly shows the fence to be 12 inches on my land and and takes approx 24 inches next to my garage. When I bought the house it was sold to me as a 40 by 120 lot as defined in my title and I have been paying property taxes on it. Does my neighbor have the right to claim my land? Can he be made to move the fence off of my property?
Thank you Ruthie

[seniorjudge]

Q: Can he be made to move the fence off of my property?

A: If it's on your land, you can remove it.

[aaron]

The answers to these questions are not decisive, but may be helpful: Prior to the fence being moved, who maintained the area on the other side (your neighbor's side) of the fence? To what use did you put that land? When did your neighbor move in? Was the woman who signed the affidavit the former owner of the property, who sold your current neighbor the land? What does the person who sold you the property have to say about the fence and the property line?

[lwpat]

If I understood you correctly, the fence was moved last year. You can have the fence placed back in its original position. That is all they can possibly claim through adverse possession and then they have to go to court. I would have an attorney give them ten days to move the fence off your property and then move it yourself if they don't. You can hire someone to move it and then send them a bill. It would help if you have any pictures showing the prior placement.

These type of disputes can get costly for both of you if they decide to hire an attorney. Best to try to settle the issue between yourselves.

[ruthie]

I bought my house in August and they bought theirs in October of 2002. They mowed the grass but we used the gate to access our garage for maintenance. The old fence was in rough shape, I replaced two missing pickets that were missing prior to them replacing with a new fence. The old fence was only four feet high, the new one is a six foot privacy. The woman who signed the affidavit sold to someone else who did some updates and sold to the current owners less than a year later. I have not met or spoken to the previous owner of my house. She had a power of attorney, she had moved from the area prior to selling. She owned it for a couple of years. Are you sure I can remove the fence without repercussions?

[Mr. Knowitall]

What are "repurcussions"? Can they call the police and try to have the police stop you? Yes, absolutely. But the police may well defer to an official survey if you have one. Can they sue you to try to establish adverse possession or title by acquiescence through a court? Yes, absolutely. And you won't do yourself any favors if you don't actively work to end their attempt to take your land.

They are attempting to claim what is known as "tacking" - in adverse possession actions periods of adverse possession by successive owners are "tacked" together for purposes of the statute of limitations. They are skipping over that year, though, where this other person owned the property. If that person made no claim to your land, they are probably going to lose any legal case they bring. (Which does not mean it would be fun, easy or cheap to defend yourself in a legal action.)

Until they establish their legal right to take your land, it's still your land. Consider consulting a lawyer and having your lawyer write them a letter detailing your position and demanding that they cease all trespass on your land, and see what happens. The best case is they drop the issue. The worst? They sue you.

[ruthie]

They have an attorney. At one time they agreed to remove the fence from my garage but since I got a survey that shows there fence to be 12 inches over the property line and 24 inches over by the garage they are now claiming adverse possession. Do youe recommend mediation or should I bring this in front of a judge? What is my next step?
Thank you
Ruthie

[Mr. Knowitall]

Here's a possible next step:

Consider consulting a lawyer and having your lawyer write them a letter detailing your position and demanding that they cease all trespass on your land, and see what happens. The best case is they drop the issue. The worst? They sue you.

Make sure you tell your lawyer of their offer to move the fence, which is inconsistent with their professed belief that they owned the land. Also take to your lawyer any correspondence from their lawyer.

[ruthie]

I have consulted an attorney. My attorney told me my neighbor is claiming acquiescence. That is why they have the signed affidavit from one of the previous owners. What can I do at this point, if anything? Should I try to find the previous owners of my house? Do I have any rights left?
Thanks,
Ruthie

[Mr. Knowitall]

You could look at the suggestions I gave you which follow "Consider consulting a lawyer...."? But given that you now have a lawyer, what you really should do is ask your lawyer, "What should I do next?"