Neighbor Demands Removal of Fence and Garage, In Place for 65+ Years

My question involves real estate located in the State of: Maine

We bought our 1910 house a year ago. A neighbor below (on another street 54' down a steep wooded slope from the edge of our backyard), whose house is under contract and to close in 2 weeks, is now demanding through his realtor that we remove our garage and move our fence, which apparently encroach on his property line. Our garage was built for a Model T around the time our house was built. The wire fence defining our yard has been here at least since 1950, and we have a letter about the fence and garage from our seller, whose family owned this property from 1950 to 2014.

The neighbor, who built his house below in 2002, sent a certified letter to our seller's father giving permission to encroach on the neighbor's odd strip of land up here, but stating that if the property ever goes up for sale, the garage must be removed and the fence surrounding the yard moved inward (about 20'). The letter was never recorded anywhere, and we had no knowledge of it when we bought the property, so to receive these demands a year later is a real shock. Our title insurance company filed a claim on our behalf today, but we are nervous about their ability to solve the issue.

If the title company fails to settle this, do we have a case for adverse possession? No one but the 2 previous owners of our property and ourselves has ever used, maintained, or made any declarations about our yard or garage, since 1910 -- except for the 2002 letter. Please note: The owner signed the certified receipt from the post office, but he did not sign anything on that letter and did not reply to it. So we don't know whether the "continuous" requirement would be considered broken.

Our house and yard are at 92' altitude, and the neighbor's house and yard are on another street in back, at 38'. The heavily wooded slope between our yard and his is extremely steep -- we can't even see his house -- and the strip of our yard that he apparently owns is not accessible from the rest of his (large) property. We're still trying to figure out why he suddenly wants to take 1/3 of our relatively small yard that he has no need or use for. We have never met him.

Thank you very kindly for any replies. We have never been involved in any property or other legal dispute in our whole lives, so this is a new kind of problem for us.

What did the Title company think will be the result? I know it's hard to wait something like this out, but I think that's the best course right now. If that fails, I would likely offer to buy the land. If the title company fails it will probably be because of the agreement to resolve the encroachment on the sale of their property (withdrawing the permission to use). It probably isn't that he suddenly needs the land, but that he owns it, and wants all his ducks in a row to sell. Buyers don't like boundary disputes, or easements.

Buyers have good reasons not to like boundary disputes or easements.

Might be smarter to have counsel of your choice review your options.

In general title insurance is full of fine print and it tens not to cover things not on record.

In general a grant of use by permission/license is OK and it prevents running of adverse possession and the grantor is free to revoke permission....which is just what happened.

It might be smart to get a 99 year permission for use for $xxx rather than a legal contest ...worded by your attorney ...or whatever fits local law

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Quoting artbook444

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My question involves real estate located in the State of: Maine

We bought our 1910 house a year ago. A neighbor below (on another street 54' down a steep wooded slope from the edge of our backyard), whose house is under contract and to close in 2 weeks, is now demanding through his realtor that we remove our garage and move our fence, which apparently encroach on his property line. Our garage was built for a Model T around the time our house was built. The wire fence defining our yard has been here at least since 1950, and we have a letter about the fence and garage from our seller, whose family owned this property from 1950 to 2014..

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The house and garage have been there since 1910 (105 years) and the wire fence since 1950 (65 years), is that correct? What does the letter from the seller say? Does it say that back in 1910 permission was given to build the garage on the neighbor's property? Or does it just inform that the garage and fence encroached on the neighbor's property?

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Quoting artbook444

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The neighbor, who built his house below in 2002, sent a certified letter to our seller's father giving permission to encroach on the neighbor's odd strip of land up here, but stating that if the property ever goes up for sale, the garage must be removed and the fence surrounding the yard moved inward (about 20'). The letter was never recorded anywhere, and we had no knowledge of it when we bought the property, so to receive these demands a year later is a real shock. Our title insurance company filed a claim on our behalf today, but we are nervous about their ability to solve the issue...

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The letter is completely self-serving and does nothing to extinguish a claim for adverse possession or for a prescriptive easement. That letter grants permission long after the statutory period had run. The statutory period in Maine is 20 years. The garage was built 93 years before the letter was written and the fence was erected 53 years before the letter.

Maine has a statute of limitations of 40 years to commence an action for the recovery of property held by others.

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§815. Forty years' possession bars action for recovery of land

No real or mixed action for the recovery of lands shall be commenced or maintained against any person in possession thereof, when such person or those under whom he claims have been in actual possession for more than 40 years, claiming to hold them by adverse, open, peaceable, notorious and exclusive possession, in their own right.

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Unless there is evidence that permission was given when the garage and fence was built and erected, there is a claim for adverse possession or prescriptive use and the time to recover is past.

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Quoting artbook444

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If the title company fails to settle this, do we have a case for adverse possession? No one but the 2 previous owners of our property and ourselves has ever used, maintained, or made any declarations about our yard or garage, since 1910 -- except for the 2002 letter. Please note: The owner signed the certified receipt from the post office, but he did not sign anything on that letter and did not reply to it. So we don't know whether the "continuous" requirement would be considered broken.

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I don't think the title company is going to solve this problem because nothing was ever recorded for them to find.

The continuous use goes back to when the garage was built and you benefit from your predecessors through tacking of the time.

It's possible that under the "Maine Rule" it plays out differently ?

If there was a minor preciously unnoticed encroachment cira 1905 it might not rise to run the clock as to adverse possession....and if the encroachment was observed much later , cira 2002 and the resolution at the time was a letter of permission..the letter might hold up? I think one can tack to get time as to adverse possession , but permission sure muddies up that timeline ....and it's not necessarily self serving permission .....

Do either of you have a current boundary survey?

Thank you all. In 1910 all our lands plus the city Land Trust's 2012 7-acre Nature Preserve were owned by Mrs A. She built our garage and house on her own land and used it as her yard. In 1950, she sold her house and yard to Mr B, and the rest of her land to the city for a gravel pit (yes, the drop from our yard is that high). The city put up the fence around our yard at that time. So, Mrs A needed no permission, and from 1950 to 2002 Mr B received/needed no permission to continue using the garage and yard as fenced.

The gravel pit folded in the 1980s and grew back into wilderness. In 2002, Mr C comes along, builds a house down below, and sends the letter to Mr B informing him of the encroachments, giving him permission to use the garage and strip of land until Mr B sells the property -- at which time the garage must come down and the fence moved. No dates previous to 2002 were mentioned.

Mr B transferred our property to his son in 2008, and the son sold it to us in 2014. The son has no knowledge of the permission letter; no one alive does, apparently, except Mr C, the letter writer. He didn't act on his own letter. He said nothing when the property was transferred to Mr B's son, and nothing when we bought it a year ago.

Our deed from 1950 is vaguely written. We believe whoever drew it up for Mrs A at that time took a casual approach, probably measured from the front of the house to the back of the garage in our backyard, and called it good. Mr B's son grew up here and believes Mrs A fully intended the garage and fenced-in yard she'd always used to be included in her sale. That's how it was presented to them in 1950.

Our title person thinks Mr C's 2002 letter may not hold water. They say they will take care of attorneys' fees and anything else to settle our problem, including possibly buying our strip of yard. My husband and I are on a fixed income and not at all in a position to hire our own attorney for any lengthy period of time.

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Catmad: Yes, the seller below had a survey done, probably when he bought his land in 2002. It shows our property line beginning right at the street, not the front of our house, which is why our garage apparently got cut off and the yard shrunken due to the vagueness of the deed. And it shows the seller below owning around 20' into our yard, on one side and at the back.

If title firm is willing to sort it out to your satisfaction....great..go with the flow....

you introduced one new variable and I simply don't know how or if it plays in ME...in general one cannot claim adverse possession against a unit of government ..and that may or may not stop the time clock .......it's not easy to sort out....

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Quoting artbook444

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A neighbor below (on another street 54' down a steep wooded slope from the edge of our backyard), whose house is under contract and to close in 2 weeks, is now demanding through his realtor that we remove our garage and move our fence, which apparently encroach on his property line.

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So, assuming the sale goes through, two weeks from now this guy won't be the owner? Then he's really not in a position to force anything -- if he commences litigation, it will take much longer than two weeks to get the matter before a court, and if he does not he is entirely dependent upon your voluntary cooperation.

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Quoting artbook444

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Our garage was built for a Model T around the time our house was built.

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Unless the garage is ramshackle or easily moved, even if a court finds that it encroaches the court is likely to license its use for the remainder of its useful life. Courts rarely order the removal of structures, due to the issue of waste (the monetary loss due to the removal significantly exceeding the harm caused by the continued encroachment) although sometimes compensation is ordered for the continuing trespass.

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Quoting artbook444

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The neighbor, who built his house below in 2002, sent a certified letter to our seller's father giving permission to encroach on the neighbor's odd strip of land up here....

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budwad stated the correct rule here. The idea that a landowner can unilaterally transform an adverse use into a permissive use after the limitations period has run is simply wrong.

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Quoting artbook444

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Our title insurance company filed a claim on our behalf today, but we are nervous about their ability to solve the issue.

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Quoting artbook444

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Our deed from 1950 is vaguely written. We believe whoever drew it up for Mrs A at that time took a casual approach, probably measured from the front of the house to the back of the garage in our backyard, and called it good.

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By a claim, do you mean a legal action? Or do you simply mean that they sent a letter to the neighbor or his lawyer?

A poorly written deed can help you both from the standpoint of the duties of your title insurance company, and in terms of a "claim of right" requirement for an adverse possession action.

If the title insurance company filed a legal action, and the neighbor is hoping to close on the sale of the property within two weeks, he's going to have to think about how to settle the case. Most buyers won't want to accept title to property when there is active litigation over the location of a boundary line. As previously indicated, whether or not litigation is pending, most buyers will want the dispute settled before closing.

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Quoting artbook444

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They say they will take care of attorneys' fees and anything else to settle our problem, including possibly buying our strip of yard.

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If the neighbor is willing to sell the strip and that won't interfere with his planned sale of the remainder of his property, with your title company paying for the land and preparing the required documentation for the transfer, that would seem to be the fastest and easiest resolution.

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Quoting artbook444

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So we don't know whether the "continuous" requirement would be considered broken.

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Who is "we", here? I'm suspecting, not a lawyer. The continuous aspect would not be broken unless you moved your fence or garage -- they have been continuously in place since they were constructed. The claim of permission may be used to try to challenge the claim that your (you and your predecessors in title) possession was hostile, but

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Quoting HRinDEVON

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It's possible that under the "Maine Rule" it plays out differently?

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Exactly what "Maine Rule" are you looking at?

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Quoting HRinDEVON

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If there was a minor preciously unnoticed encroachment cira 1905 it might not rise to run the clock as to adverse possession.

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What Maine law are you looking at, that would support your theory?

We hadn't thought of that. The title company should be figuring that out, yes? Hoping we can trust the title company's word.

Also, we're wondering if the title company shouldn't have informed us, before we bought, that our garage and fence were encroaching? Or was that not part of their job in researching the title?

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Quoting HRinDEVON

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in general one cannot claim adverse possession against a unit of government...

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If the municipality owned the property within the past twenty years, then it may be necessary to look for an exception to the general rule, as the period of government ownership would not ordinarily be includable in the period of adverse possession; however, if the contested strip of land has been in private hands for more than twenty years the limitations period can be satisfied based upon the subsequent period of possession.

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Quoting artbook444

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Also, we're wondering if the title company shouldn't have informed us, before we bought, that our garage and fence were encroaching? Or was that not part of their job in researching the title?

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You have already told us that there is nothing in your title history that would suggest this to be a problem.

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Quoting artbook444

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We hadn't thought of that. The title company should be figuring that out, yes? Hoping we can trust the title company's word.

Also, we're wondering if the title company shouldn't have informed us, before we bought, that our garage and fence were encroaching? Or was that not part of their job in researching the title?

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Had they discovered what they believed to be an encroachment, you would have been informed. You already stated that your deed was vague.

Preble v Maine , 1893 ....a minority view that hostile use must be knowing as well as just there .

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the time the city owned the pit may be out of the time count as to adverse possession...see Loavenbruck v Rohrback, 2002 ME 73

Mr. Knowitall: I appreciate all your information very much. This issue came up because 2 weeks before their closing, the neighbor's buyer's title company refused to insure because of the encroachments based on the 2002 letter. Both the seller's and the buyer's real estate agents called us last Friday to demand that we remove the garage and move the fence so that their title can be insured and their closing happen.

We ("we" so far always means my husband and me alone) alluded to buying the strip of land in question, which certainly would solve their problem, and now ours, and we don't know why they haven't yet expressed interest in that suggestion. We've heard nothing from the agents since my husband left them a message that "we have filed a claim with our title insurer," which our title underwriter told us to say. Our title underwriter calls it a "claim" and has not written or called the seller, buyer, or real estate agents.

The garage is very old and shows it, but has been decently maintained for 105 years and is not falling down. (It does need a new door.) We want to convert it to an art studio in the next couple of years.

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Thank you for all replies, which are very educational and much appreciated.

Anxiety over this horrible turn of events has raised another question in our minds: Can the neighbor sue us for trespassing with our 105-year-old and 65-year-old encroachments, if we don't do as the 2002 letter and the buyer's and seller's r.e. agents demand?

The number one priority of the two agents may be to preserve their commission.....they are not in equation to protect you .....

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Quoting HRinDEVON

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Preble v Maine , 1893 ....a minority view that hostile use must be knowing as well as just there

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That case has been explicitly overruled by statute, 44 M.R.S. Sec. 810-A.

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Quoting 44 M.R.S. Sec. 810-A. Mistake of boundary line

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If a person takes possession of land by mistake as to the location of the true boundary line, the possessor's mistaken belief does not defeat a claim of adverse possession.

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Quoting artbook444

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This issue came up because 2 weeks before their closing, the neighbor's buyer's title company refused to insure because of the encroachments based on the 2002 letter. Both the seller's and the buyer's real estate agents called us last Friday to demand that we remove the garage and move the fence so that their title can be insured and their closing happen.

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And you acted appropriately by involving your own title insurance, and ideally the buyer, seller and your title insurance company will find a mutually acceptable resolution that allows the sale to proceed. I would suggest not having further direct contact with the buyer, seller or their agents (or lawyers), instead directing them to your title insurance.

I breezed over a few of the posts so I may have missed it but is there a valid survey in play here or is it based on speculation and the letter? If no valid survey the first thing is to get one.

Then, while others discount the letter I would not be so quick to do so. It might have been the result of a negotiation where as the older property owner may have agreed to the condition. If so the adverse possession issue is off the table.

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Quoting jk

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I breezed over a few of the posts so I may have missed it but is there a valid survey in play here or is it based on speculation and the letter? If no valid survey the first thing is to get one.

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We have been told that there was a survey. Its validity is something that can now be evaluated by the title company.

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Quoting jk

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Then, while others discount the letter I would not be so quick to do so. It might have been the result of a negotiation where as the older property owner may have agreed to the condition. If so the adverse possession issue is off the table.

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We have been told that there was no agreement -- just a unilateral notice.

i stand corrected.....ME changed its common law approach to adverse possession about 2005 via sec 810.

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Mr. Knowitall;896950]We have been told that there was a survey. Its validity is something that can now be evaluated by the title company.

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we have been told the guy down the hill had his property surveyed and given the vagueness of the description, I would most certainly suggest OP have their lot surveyed using the description of their property rather than relying on the neighbors property and where it lands based on the description of their property.

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We have been told that there was no agreement -- just a unilateral notice.

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I don't see that anywhere. I saw this:

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The neighbor, who built his house below in 2002, sent a certified letter to our seller's father giving permission to encroach on the neighbor's odd strip of land up here, but stating that if the property ever goes up for sale, the garage must be removed and the fence surrounding the yard moved inward (about 20'). The letter was never recorded anywhere, and we had no knowledge of it when we bought the property, so to receive these demands a year later is a real shock

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Please note: The owner signed the certified receipt from the post office, but he did not sign anything on that letter and did not reply to it.

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In 2002, Mr C comes along, builds a house down below, and sends the letter to Mr B informing him of the encroachments, giving him permission to use the garage and strip of land until Mr B sells the property -- at which time the garage must come down and the fence moved.

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but even more importantly, this:

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Mr B transferred our property to his son in 2008, and the son sold it to us in 2014.The son has no knowledge of the permission letter; no one alive does, apparently, except Mr C, the letter writer. H

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So I am missing where it was stated there was no agreement, negotiation, or anything else regarding the letter. Maybe somebody should speak to Mr C and see if it was a unilateral action or if there were some sort of discussion regarding the matter. Since the person that owned the property at the time of the letter is deceased it is difficult for him to dispute anything. Then, since permission was granted, even though the period to seek title due to adverse possession was complete, the owner of the hilltop took no action to quiet the title and take possession. Why would he not if he knew the downstairs guy was making claim to the land? When claiming property adversely if challenged one either sues to quiet title or negotiates a settlement or simply continues to attempt to adversely possess the land. Since the guy is deceased and there was no quiet title suit and the downstairs neighbor did not act to eject the upstairs guy it's starting to look a lot like an agreed upon license as the downstairs neighbor is now claiming.

We were told that the former owner's only action in relation to the letter was signing for its delivery. If you want to postulate that facts could exist that would transform that into evidence of an agreement, obviously I'm not in a position to prove a negative, but that's certainly not something that is suggested by the facts as shared here.

A unilateral grant of permission does not transform an adverse use to a permissive use. It does not minimize a claim of right, and does not evidence that the person in possession of the land has changed his intention to claim it as his own whatever the title instruments may provide.

Why don't people file adverse possession claims the moment that somebody says, "That's not your land"? Because it's costly, time consuming, and, in this particular context, was unnecessary given that they were not impeded in their continued use of the land. And very possibly, because they think the person claiming ownership of what they see as their land is a crank.

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Mr. Knowitall;897024]We were told that the former owner's only action in relation to the letter was signing for its delivery. If you want to postulate that facts could exist that would transform that into evidence of an agreement, obviously I'm not in a position to prove a negative, but that's certainly not something that is suggested by the facts as shared here.

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I am saying since the guy that received the letter is dead, there is no way to know that he did not make an agreement with Mr. C. There needs be no action regarding the letter for it to be effective.

it goes like this:


me: You are on my land. I want you off.

you: but I have used it for a long time so I can sue to take title

me; Ok, then do it or get off my land

you; but it's land you would never use and it would be such a great imposition to move the garage isn't there something we could do where I could keep using the land and not spend all the money it would cost to fight this out in court?. I would prefer to not spend the money to sue to quiet title but I will if I have to

me: well, you are right I don't really use the land but I don't want to lose it either so how about this: I will grant you a license that allows you to use my land as long as you live here but if you sell the place, I'm taking taking control of my land back.

you; sounds good to me

me; I'll send you a letter to that effect in the mail

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And no, there is no basis in law for any jurisdiction that a unilateral grant of permission will transform an adverse use to a permissive use.

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but there is nothing to show that it was only a unilateral notice. OP has not discussed it with the prior owner and apparently nobody has discussed it with Mr. C. There is no reason to not believe it was the result of an agreement. Nobody has even disputed the possibility it was the result of an agreement. OP said simply; letter was received. Ok, they received it. It is not required to be recorded. It does not have to be signed. It is what it is. It would make it cleaner if it was signed in acknowledgment of an agreement but it does not mean there wasn't one with it not being signed.

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Why don't people file adverse possession claims the moment that somebody says, "That's not your land"? Because it's costly, time consuming, and, in this particular context, was unnecessary given that they were not impeded in their continued use of the land

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or they came to an agreement and the license was the result.

am I saying that IS what happened? Not at all. What I am saying is the facts at hand allow for my scenario to be in place just as easily as any other scenario and since nobody has bothered to speak to Mr C to see how the letter came about, there is no reason to think it is any less likely than your position.

Yes, yes, I have stipulated that with the application of enough imagination we can postulate just about anything, and now the OP is aware of a possible scenario that does not appear to be at all likely and is not supported by what we have been told so far about the letter. They can review the letter in light of your hypothetical to see if there's any support for your notion that it might suggest an agreement -- but again, the letter is not evidence of anything beyond than what one owner unilaterally put on paper.

I am missing something as to timelines ...if the original owner of the larger tract owned it until mid 50s then the placement of garage and fence is not yet an issue.....and while I don't know the ME specifics, in general if a unit of government acquired the lower tract then the time as to place,net of fence and garage does not run against government...so if the lower tract went into private hands in mid 80s and someplace shy of 20 years the upper and lower lot owners executed some sort of permission .I don't follow where permission is doomed as merely self serving after the fact....

To clear up some dates: The original owner of the whole area sold it in 1950 -- her 1910 house, garage, and yard (exactly as it all still is today) to our previous owner's father, and the rest to the city for a gravel pit.

The pit closed in the '80s, but the city still owned all that land below. I learned yesterday that the house below was built in 1999, by a builder who must have purchased the lot from the city. The rest went into the city Land Trust, as a Nature Preserve, never to be developed.

Our yard physically abuts the Nature Preserve. It's right on the other side of the fence that was put up in 1950. In fact, according to the seller below's survey, he appears to own 5 or 6 feet into the Preserve!

The seller below bought the 1999 house from its builder in 2002.

You all are so interesting -- in a good way.

So it still sounds like you need a survey of your property.

It's entirely possible as you clarify the time lines, that the adverse clock did not begin to count until the lower lot returned to separately private hands, cira 1999 or whenever the builder bought the lot ..and in that context a written grant of permission to upper lot holder cira 2002 makes sense ?

I still believe that the letter is self-serving and that there could be no clear and convincing evidence that any permissive agreement was made. But I will toss the adverse possession claim in the potty.

The City erected the fence in 1550. So who could argue that the City didn't know where the boundary line was. Now there is the doctrine of boundary by acquiescence that meets all the required elements without the worry of tacking for adverse possession.

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To obtain title by acquiescence, a party must establish four elements by clear and convincing evidence:

1) possession up to a visible line marked clearly by monuments, fences or the like;

2) actual or constructive notice to the adjoining landowner of the possession;

3) conduct by the adjoining landowner from which recognition and acquiescence not induced by fraud or mistake may be fairly inferred;

4) acquiescence for a long period of years such that the policy behind the doctrine of acquiescence is well served by recognizing the boundary.

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See Crosby v. Baizley, 642 A.2d 150, 153-54 (Me.1994). See also Davis v. Mitchell, 628 A.2d 657, 660 (Me.1993); Marja Corp. v. Allain, 622 A.2d 1182, 1184 (Me.1993); Calthorpe v. Abrahamson, 441 A.2d 284, 289 (Me.1982). A boundary by acquiescence may be proven even where the deed description is clear and the legal boundary is known. See Davis, 628 A.2d at 659. The requirement of a monument, fence, or the like indicates that the mere cutting of grass is insufficient to produce a visible line of occupation. See Crosby, 642 A.2d at 154; Davis, 628 A.2d at 660.

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Dowlery v. Morency,

I simply don't know if one can advance an easement by acquiescence against a unit of government in ME...it seems logical that if it does work as to prescriptive easement it should not as to acquiescence ..but logic isn't a what counts...its higher court decisions or law that does.

The literature suggests that acquiescence may count in as few as 6 or 7 years in ME, one need not run to 20..... But if the clock started cira 1999 and new owner executed permission with other owner cira 2002 , I m not sure .why the non owners position should be on a higher plane? Im can see missing a few inches..been there done that and been there to look at surveys that disagreed due to different starting points....but OP bought a lot where a reasonable person might have inquired about a fence way off location and apparently the garage was out of place by a simple tape measure .....

Perhaps we shouldn't have done it. My husband and I fell in love with the place, which we negotiated to an excellent price, and discovered the property line problem ourselves only 3 days before closing. It may have been a mistake to believe our realtor that there should be no trouble over it in the future. At the time, no one had any knowledge of the owner below's 2002 letter; and with no apparent issues in 104 years and only 2 previous owners of this property, with the abutter below never being able to actually do anything with our strip of yard, we took the chance. Hopefully it will still be worth it. We love it here.

Before you said,

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Quoting artbook444

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The letter was never recorded anywhere, and we had no knowledge of it when we bought the property, so to receive these demands a year later is a real shock.

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Now you say,

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Quoting artbook444

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My husband and I... discovered the property line problem ourselves only 3 days before closing. It may have been a mistake to believe our realtor that there should be no trouble over it in the future.

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It is difficult to reconcile those two statements. If you chose to buy the home knowing that 1/3 of its "back yard" was not your property, and that your fence and garage encroached on a neighboring property, how would it be surprising that the owner of the other property later demands that you remove the encroachments from his land? If the actual boundary lines were clear and understood by you and the seller at the time of the sale, unless they somehow don't know that, it's difficult to see why your title insurance would be involving itself in the present dispute.

It would be surprising because no one -- city code enforcement told us when we bought -- could ever build anything on this strip of land. And it would be surprising because the house below on another street has no access to it from the rest of his property due to our elevation of 92' and his elevation of 38'. It's a ridiculously steep, thickly wooded slope.

Our deed is vague enough that no one seems sure of where the starting point in the description is. If you start at one point, we own all the way to our fence. And we made the assumption that it does, since it's been this way for 105 or at least 65 years, and the city itself erected that fence in 1950. We assumed they knew what they were doing. Our seller was not aware of the problem until our realtor questioned him about it when we discovered it. And none of us knew of the 2002 letter -- that was the big surprise to us last Friday, and that was the crucial part of the picture that shocked us.

There is an update on this situation: The title company has assigned us one of their attorneys, so their review of our case found that it has merit. And: The seller below came up here and introduced himself yesterday, carrying a letter asking us to remove the garage so his sale can go through. We talked in a friendly manner for over an hour and walked our property. By the time he left, he believed that the property line should officially be redrawn, as he nor his buyer could have any use for the strip of our yard. And he believed that because the garage and fence have been here for so long, what has always been our yard should remain our yard. His 2002 letter, he says, was the idea of his attorney at the time and written by that attorney, and he filed it away and forgot about it. Until his property came under contract.

He said he is telling his realtor of this, and if his buyer won't agree, he wants to put his house back on the market. I'm sure the realtor would not be happy about that, and nothing is in writing, but the seller turns out to be very wealthy and very kind older man. Between him and our title company attorney, we are hopeful. In any case, no doubt we'll have to have a survey done, which the title company may take care of. Unknown, but it would be a relatively small price for us to pay for peace of mind and a complete yard.

Do you still believe we should have no further contact on our own with the seller or real estate agents and just refer them to the title attorney? If so, we may well follow your advice. As I've said, my husband and I have never been involved in anything like this before.

It makes sense for the two owners to resolve the issue so it's not a legal wart going forward ...but to resolve it in a nice clean legal fashion so there is no doubt going forward .
The details of such are actually better left up to your attorney and his attorney.

I happen to think his attorney did the proper thing back a few years to protect his client ...if his client wants a more liberal resolution in your favor..so be it ...get it done .....there are perhaps several ways to do it...and that's for the pros to resolve.....

Okay, thank you very much.

This forum is a truly wonderful service.

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I have 2 further questions, please, if anyone can and is willing to answer them.

The seller below us wants to deed his third of our yard over to us, since it's unusable for anyone at his address. However, his buyers are now digging in their heels; they insist we tear down our garage and, the seller informed us today, ARE now planning to erect their own fence in our yard if/when they acquire that property, even though our yard is inaccessible from their actual house and yard 54' below us. The seller below still wants us to own our 1910 yard and hopes we will fight for it, as he repeated again today to us. (Apparently he himself can't fight it, because he has been and still is under contract with these buyers.)
We have asked for a legal easement as option #2 if the deeding-over can't happen, and the buyers don't want to do that either.

Question #1: Should we? Fight to keep our garage and yard as they are, and have been since 1910? Or will we end up miserable with hostile neighbor and so on. I for one probably can't live like that -- with hostility for a neighbor.

Their closing was postponed from July 9 to July 25 (the buyer's title company being unwilling to insure due to this issue). Our title company (we have owner's title insurance) is still collecting information on this case, including whether or not we can claim adverse possession despite the unrecorded 2002 letter (see earlier). An attorney has now been assigned to our case by the title company.

Question #2: Since we have a claim that our title company is pursuing, will that postpone the July 25 closing below further if our title company hasn't yet completed its research into this case? Or can they close below anyway, tear down our garage, and install their fence between us and the Nature Preserve, while our claim is still being worked on?

(Well, there's actually a question #3: Really, people want to deprive others of a small basic yard even though by doing so it makes no difference to their own yard and their own everyday life? Really? I'm afraid I know the answer, but am asking anyway.)

As I indicated quite some time ago, if the buyer and seller want this issue resolved within the space of a couple of weeks, they will need your cooperation. Even if the seller believes that he could prevail in litigation over the issue of the property line, it will take months for a case to be resolved by the courts and odds are the sale will fall through in the interim. Also, as I previously indicated, it's very unlikely that a court is going to order the garage moved during its useful life, unless that can be easily accomplished (which does not appear to be the case). If the buyer is willing to purchase the property subject to your claims and worry about establishing the boundary line at a later date, the buyer has that option -- but few buyers want to purchase property with a known boundary issue, and (as has already happened) it would complicate their ability to get title insurance (and thereby their ability to get a mortgage).

If the sale goes through, you will want to have already spoken with a real estate lawyer about your rights and remedies, and be prepared to file a legal action and to seek an injunction to prevent any changes to the land while the matter is resolved in court. You will have to determine what the title insurance lawyer can and will do for you, as at some point you may need to hire your own lawyer.

The owner of the neighboring property is correct, that he cannot now sell you a portion of the land or some form of easement, as to do so would breach his contract with the buyer. If the buyer ends up walking away, he will have the ability to resolve the issue as he sees fit (consistent with any local land use / zoning restrictions) before locating a new buyer.

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Quoting artbook444

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Okay, thank you very much.

This forum is a truly wonderful service.

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I have 2 further questions, please, if anyone can and is willing to answer them.

The seller below us wants to deed his third of our yard over to us, since it's unusable for anyone at his address. However, his buyers are now digging in their heels; they insist we tear down our garage and, the seller informed us today, ARE now planning to erect their own fence in our yard if/when they acquire that property, even though our yard is inaccessible from their actual house and yard 54' below us. The seller below still wants us to own our 1910 yard and hopes we will fight for it, as he repeated again today to us. (Apparently he himself can't fight it, because he has been and still is under contract with these buyers.)
We have asked for a legal easement as option #2 if the deeding-over can't happen, and the buyers don't want to do that either.

Question #1: Should we? Fight to keep our garage and yard as they are, and have been since 1910? Or will we end up miserable with hostile neighbor and so on. I for one probably can't live like that -- with hostility for a neighbor.

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Only you can answer that question. You likely have a good case to keep things the way they are.

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Quoting artbook444

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Their closing was postponed from July 9 to July 25 (the buyer's title company being unwilling to insure due to this issue). Our title company (we have owner's title insurance) is still collecting information on this case, including whether or not we can claim adverse possession despite the unrecorded 2002 letter (see earlier). An attorney has now been assigned to our case by the title company.

Question #2: Since we have a claim that our title company is pursuing, will that postpone the July 25 closing below further if our title company hasn't yet completed its research into this case? Or can they close below anyway, tear down our garage, and install their fence between us and the Nature Preserve, while our claim is still being worked on?.)

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Why do you care if the closing gets postponed. Your title company is working on the case for you. You shouldn't do anything that would hamper their efforts. You should tell the attorney that is working on the case what the buyer has said about tearing down the garage and erecting a fence. The attorney can file for an injection to prevent that until the case is settled.

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Quoting artbook444

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(Well, there's actually a question #3: Really, people want to deprive others of a small basic yard even though by doing so it makes no difference to their own yard and their own everyday life? Really? I'm afraid I know the answer, but am asking anyway.)

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personally I do not have a problem with them fighting for their land (or soon to be land). It is any owners right to do so and in fact, the law penalizes those that refuse to fight for their land. With that said, I believe a compromise would be the best solution such as allowing you to purchase the concerned land. That is more the issue to me than the ownership of the land given they apparently cannot do anything with the land anyway.

I would most certainly fight. I don't see how you can avoid a hostile new neighbor in this situation, so I surely wouldn't want them having a fence in my back yard. With this kind of start, it would seem they are not going to be happy with anything.

I may well be wrong, but I don't see how the closing can take place until this issue is settled. The potential owner has no standing to fight you that I can see, but I know nothing about the law governing this.

But I do wish you a successful outcome, hang in there!

The closing can take place as soon as the buyer, seller, and lender for the buyer are ready to close. The title company would likely exclude coverage over that area if they have not resolved the issue to their satisfaction.

if closing takes place before this is settled to your satisfaction be prepared to head to court immediately (and I do mean immediately after closing) to obtain a temporary injunction to stay any work from being performed in the area of concern.

Without the order they could actually start work in removing the encumbrances and by the time you got a stop work order the damage may already be complete.

In fact, if there is no resolution at least several days prior to the closing I would head to court then. If you wait until closing, if these people move fast, it could already be too late.

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Quoting jk

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The closing can take place as soon as the buyer, seller, and lender for the buyer are ready to close. The title company would likely exclude coverage over that area if they have not resolved the issue to their satisfaction.

if closing takes place before this is settled to your satisfaction be prepared to head to court immediately (and I do mean immediately after closing) to obtain a temporary injunction to stay any work from being performed in the area of concern.

Without the order they could actually start work in removing the encumbrances and by the time you got a stop work order the damage may already be complete.

In fact, if there is no resolution at least several days prior to the closing I would head to court then. If you wait until closing, if these people move fast, it could already be too late.

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I do not see HOW they could do anything to commence work on removing the encumbrances, as they have no physical access to the land in question. Are they going to try to come up the seriously steep, wooded slope to do it? Are they going to try to trespass on the OP's property to do it?

Nevertheless the attorney should still immediately move for an injunction anyway...along with a no trespassing notice.