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  1. #1

    Default Neighbor's Old Fence Many Feet Onto My Property

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

    I bought a property located in WA in July. I believe that the property lines are incorrect. My back property line should be about 84 ft long according to county records. I measured with a measuring tape and it was about 76 feet fence to fence (granted, that's not completely accurate, but it gives a good idea, and even if my measurements were off, they wouldn't be off by 8 feet). I only thought that the property lines were incorrect when looking at a combination of satellite photos with property lines. The one side of my yard, the fence is exactly on the line (according to the combined satellite and property line picture). On the other side, the fence is about 8 feet into my yard. Ideally, I want the fence to be removed and built where it should be (I would do this at my own cost). However, I don't know legally about this situation. I just bought this house, and I don't know how long the fence has been in place, but I would assume that it's been more than 7 years (I have no way to prove this). There isn't any structure within those 8 feet besides the fence. There is one medium sized tree, and a pile of cut wood.

    I am paying property taxes for this land, and the neighbor isn't. They have never filed a title with the county recorder to change the property line either. Am I incorrect to assume that this property still belongs to me? Am I able to relocate the fence? What can be done about this encroachment issue? Would it even be worth it to have a surveyor come out?

    The fence is old and not in that great of shape. Could I offer to replace the fence, at my own cost, and just build it where it should be? Or am I just out of luck?

    Any advice?

    Thank you in advance!

  2. #2
    Join Date
    Jan 2006
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    38,867

    Default Re: Neighbor's Old Fence Many Feet Onto My Property

    the very first thing you need to do is get a survey of the property. Without that, nothing can happen. The sources you used to determine the property line are not dependable.

    depending on how long the situation may have been like it is, your neighbor might have a claim for a prescriptive easement.

  3. #3
    Join Date
    Aug 2010
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    Maine
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    Default Re: Neighbor's Old Fence Many Feet Onto My Property

    Quote Quoting bowieweiland
    View Post
    My question involves real estate located in the State of: Washington

    Would it even be worth it to have a surveyor come out?

    The fence is old and not in that great of shape. Could I offer to replace the fence, at my own cost, and just build it where it should be? Or am I just out of luck?

    Any advice?

    Thank you in advance!
    A boundary survey (NOT a mortgage inspection) can be very valuable. The surveyor's job is to do exactly what you are asking; place the record line on the ground. A surveyor is the only professional who can be licensed to do this, and once they have placed the record line on the ground, are held legally liable for the accuracy of their work to you, the neighbor and anyone else who may have an interest in the property.

    Yes, they can be expensive. A good bet on the cost is roughly 1%-2% of the value of your property. This obviously is not how an estimate is generated - it's just what I've seen to be the case for project prices to end up. I tell this to people usually to give them some perspective on what it is they are paying for, and to think of including the price of a survey into their mortgage before they close, or to get the seller to pay for the survey.

    As to offering to replace the fence, I would wait until your survey is done. I may be wrong here, but the mere act of asking permission of the neighbor to replace the fence may be an act of acquiescence; where you are tacitly giving up a claim on the land on the other side of the fence to your neighbor.

  4. #4
    Join Date
    Dec 2008
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    El Dorado County, CA
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    395

    Default Re: Neighbor's Old Fence Many Feet Onto My Property

    As a boundary surveyor, I'm going to basically agree with JK and Newton, but disagree a little bit with Newton.

    You asked : "Am I incorrect to assume that this property still belongs to me?"

    Answer: Yes, you are incorrect to assume. However, it is possible that the fence is encroaching onto your property as you suspect. The first thing you need to do is have your boundary professionally located. Find a surveyor who specializes in boundary retracements as a major part of his or her practice. A surveyor must have several years of a combination of education and experience to become licensed, and is the only professional trained and licensed to locate property boundaries. Virtually all surveyors are well versed in the math associated with boundary retracement, but not all are completely familiar with proper research and resolution of boundary discrepancies.

    Here is where I am going to disagree with Newton somewhat. The boundary surveyor's job is to locate the boundary as it was originally established, not necessarily to stake out the "record line" on the ground. This is because sometimes the record is not correct. For example, your property describes, by courses of bearing and distance a certain geometric figure. It is very likely that your neighbors' descriptions also describe the geometric shapes of their properties. But, descriptions were not always based upon carefully surveyed measurements. Sometimes they were based either upon measurements which were made poorly by modern standards, or they were based upon assumed dimensions. In cases like that, it is not uncommon that there might be an 8 foot discrepancy.

    The surveyor will have to take various pieces of evidence into account: Which parcel was created first (a concept called seniority or senior rights)? Were the parcels created simultaneously (neither parcel senior)? How and by whom were the lines established on the ground? When, in relation to the deeds creating the parcels, were the lines established on the ground? Do the fences coincide with the first established lines? How long have the fences been in place?

    If the fences have been in place essentially since the creation of the parcels, it has been my experience that they are most often, not always, very good indicators of the original and valid location of the property boundaries. If the fences were first built several years later, it's less likely that they were built upon the originally established boundaries. Misplaced fences are sometimes so placed for convenience, sometimes because the builder thought the boundary was at that location and built it in good faith, sometimes as a wild *** guess, and sometimes for less than honorable motives. Your surveyor will have to have enough knowledge to properly evaluate the fences, the record (chain of title), and the express or apparent actions of current and past landowners.

    So, your "record line" may not be where the dimensions of your deed might indicate, or they may be. They may be at the existing fences, or they may be at some different location. The reason I disagreed with Newton is that he may, and even some surveyors not well versed in the legal principles of boundary location tend to think of the "record line" being at, and only at the location where the dimensions recited in the deed would place it. The first of many problems with that thinking is that the surveyor must first decide which side of the geometric figure that is your description he is going to hold the physical evidence as valid, and which side he is going to reject it. That's where most who stick to the dimensions run headfirst into the law. What would be your problem with that, is that neither of you would know it until you pay several thousands or tens of thousands to litigate it.

    Newton may already be aware of all that I've just discussed and I merely misinterpreted him on the semantics. But I wanted you to make certain that the surveyor you hire is well versed in boundary principles, and if your survey shows that each course of your boundary is exactly as your deed states (there is almost always some small variation, so exact matches are a red flag), that you question him on it and that he is able to explain the legal principles as to his determination of the location of each line. That's not to badger your surveyor, as I said, it's possible that your deed describes your boundary dimensions quite well, it's to ensure that if you move forward with any action for ejectment and recovery that the boundary survey you have is defendable in court where it will be assessed according to legal principle and possibly with no regard for the math.

    Assuming that the dimensions of your deed are correct, and the fence is encroaching, your surveyor's ability to assess the fence and other indications of occupation and use of the portion of your record property on the other side of the fence will come into play. Your surveyor will need to determine the age of the fence. The fence location should be shown on the Record of Survey map (WA is a mandatory recording state for surveys), and any other details about the fence and property use should either be included as notes on the survey, or in a survey report for your reference and use by your attorney. It is possible that even though you have valid record title to the property, that the fence and use of that property may be the basis for a valid claim of Adverse Possession.

    The surveyor can go so far as to locate the physical indications and determine particulars about them pertinent to a potential AP claim, but that's where the attorney takes over. If, once you have your survey completed and it shows encroachments and has determined the other particulars I've mentioned, the attorneys on this forum, and especially your locally retained attorney will be able to advise you better as to the viability of moving ahead with action for ejectment and recovery of property.

    I hope you find this helpful.

  5. #5
    Join Date
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    Default Re: Neighbor's Old Fence Many Feet Onto My Property

    Quote Quoting eapls2708
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    As a boundary surveyor, I'm going to basically agree with JK and Newton, but disagree a little bit with Newton.

    You asked : "Am I incorrect to assume that this property still belongs to me?"

    Answer: Yes, you are incorrect to assume. However, it is possible that the fence is encroaching onto your property as you suspect. The first thing you need to do is have your boundary professionally located. Find a surveyor who specializes in boundary retracements as a major part of his or her practice. A surveyor must have several years of a combination of education and experience to become licensed, and is the only professional trained and licensed to locate property boundaries. Virtually all surveyors are well versed in the math associated with boundary retracement, but not all are completely familiar with proper research and resolution of boundary discrepancies.

    Here is where I am going to disagree with Newton somewhat. The boundary surveyor's job is to locate the boundary as it was originally established, not necessarily to stake out the "record line" on the ground. This is because sometimes the record is not correct. For example, your property describes, by courses of bearing and distance a certain geometric figure. It is very likely that your neighbors' descriptions also describe the geometric shapes of their properties. But, descriptions were not always based upon carefully surveyed measurements. Sometimes they were based either upon measurements which were made poorly by modern standards, or they were based upon assumed dimensions. In cases like that, it is not uncommon that there might be an 8 foot discrepancy.

    The surveyor will have to take various pieces of evidence into account: Which parcel was created first (a concept called seniority or senior rights)? Were the parcels created simultaneously (neither parcel senior)? How and by whom were the lines established on the ground? When, in relation to the deeds creating the parcels, were the lines established on the ground? Do the fences coincide with the first established lines? How long have the fences been in place?

    If the fences have been in place essentially since the creation of the parcels, it has been my experience that they are most often, not always, very good indicators of the original and valid location of the property boundaries. If the fences were first built several years later, it's less likely that they were built upon the originally established boundaries. Misplaced fences are sometimes so placed for convenience, sometimes because the builder thought the boundary was at that location and built it in good faith, sometimes as a wild *** guess, and sometimes for less than honorable motives. Your surveyor will have to have enough knowledge to properly evaluate the fences, the record (chain of title), and the express or apparent actions of current and past landowners.

    So, your "record line" may not be where the dimensions of your deed might indicate, or they may be. They may be at the existing fences, or they may be at some different location. The reason I disagreed with Newton is that he may, and even some surveyors not well versed in the legal principles of boundary location tend to think of the "record line" being at, and only at the location where the dimensions recited in the deed would place it. The first of many problems with that thinking is that the surveyor must first decide which side of the geometric figure that is your description he is going to hold the physical evidence as valid, and which side he is going to reject it. That's where most who stick to the dimensions run headfirst into the law. What would be your problem with that, is that neither of you would know it until you pay several thousands or tens of thousands to litigate it.

    Newton may already be aware of all that I've just discussed and I merely misinterpreted him on the semantics. But I wanted you to make certain that the surveyor you hire is well versed in boundary principles, and if your survey shows that each course of your boundary is exactly as your deed states (there is almost always some small variation, so exact matches are a red flag), that you question him on it and that he is able to explain the legal principles as to his determination of the location of each line. That's not to badger your surveyor, as I said, it's possible that your deed describes your boundary dimensions quite well, it's to ensure that if you move forward with any action for ejectment and recovery that the boundary survey you have is defendable in court where it will be assessed according to legal principle and possibly with no regard for the math.

    Assuming that the dimensions of your deed are correct, and the fence is encroaching, your surveyor's ability to assess the fence and other indications of occupation and use of the portion of your record property on the other side of the fence will come into play. Your surveyor will need to determine the age of the fence. The fence location should be shown on the Record of Survey map (WA is a mandatory recording state for surveys), and any other details about the fence and property use should either be included as notes on the survey, or in a survey report for your reference and use by your attorney. It is possible that even though you have valid record title to the property, that the fence and use of that property may be the basis for a valid claim of Adverse Possession.

    The surveyor can go so far as to locate the physical indications and determine particulars about them pertinent to a potential AP claim, but that's where the attorney takes over. If, once you have your survey completed and it shows encroachments and has determined the other particulars I've mentioned, the attorneys on this forum, and especially your locally retained attorney will be able to advise you better as to the viability of moving ahead with action for ejectment and recovery of property.

    I hope you find this helpful.
    I wholeheartedly agree with your assessment concerning boundary resolution; I misspoke when I wrote "record line" and did not go further in depth concerning the differences between record line, line of occupation, etc. Also, I made no mention of unwritten rights, seniority of title, and the boundary rules of construction.

    I was merely trying to paraphrase the concerns the OP might have wished to consider. I prefer to find the original, undisturbed physical monument called for in the record and hold to it. Finding those tends to make everyone's lives involved less stressful...

  6. #6
    Join Date
    Oct 2007
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    Ohio
    Posts
    2,592

    Default Re: Neighbor's Old Fence Many Feet Onto My Property

    Since the OP hasn't been back to the thread for a few days, I assume he's hunting up a land surveyor to to take him to the next phase.

    If his surveyor verifies his suspicions about the location of the line in question, and he comes back a reads this thread, he might think, from some of the comments posted here, that there is a certain inevitability that he must go to an attorney for what he has to do next.

    But there is no requirement that the OP hire an attorney, gather evidence, and go to court to "recover" his property.

    If the fence is several feet inside his property, as shown on his survey, he may proceed to carry out his plan to remove the fence from it's current location and install a new fence on the actual property line without prior consent. I'd recommend that he inform his neighbor by letter of the results of the survey (with a copy of the plat), that he intends to remove the old fence, and install a line fence at his own expense. He should also offer to move the woodpile to the neighbor's property.

    This is the simplest and cheapest approach to try first. In more than three decades as a boundary surveyor, I have seen this work in a clear majority of cases. Sometimes a fence is just a fence. The surveyor's opinion will most likely be accepted, even if grudgingly at first.

    If the neighbor disputes it, he is the one who faces the burden of hiring an attorney, going to court, and proving his claim in every particular. The entire burden of proof is on him. He will certainly have to pay the attorney thousands of dollars just to start the process, with a likely five figure cost for only a chance at a few feet of land which he does not currently own.

  7. #7
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    Default Re: Neighbor's Old Fence Many Feet Onto My Property

    Good advice, LS. Somehow I had already read a conflict in this. Re-reading, I don't see it. Must have gotten that from a different thread.

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