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  1. #1
    Join Date
    Sep 2012
    Posts
    1

    Default How to Enforce a Long-Standing Property Line Different from Actual Boundary

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

    Purchased house "B" with weedy front yard and weedy fenced in side yard. By all appearances the weeds belonged with the house as there was a clear maintenance line with the next door house "A". Fence was erected by prior owner of "B" along the maintenance line in 2005/06. Google maps in 1998 shows same unfenced line of maintenance. Apparently most of the yard belongs to house "A". "A" claims to have known about it after his purchase 8 months ago and before our purchase 2 months ago because another potential buyer of house "B" had a survey done and discovered the problem and somehow he found out from that. He did nothing to inform the realtor of house B nor did he start to maintain the property in question or tear down the fence upon discovering that it is his. It seems prior to these recent purchases, owners of both houses maintained the property line at this point with no encroachment filed. Can this be construed as adverse possession thru various owners, given the google map image from 1998 showing the same line?
    House A is two lots with combined size more than twice B's lot, yet B's lot is valued at 65% of A's 2 lots, almost like the assessors have been considering the maintenance line to be the property line for years also (may be hard to prove). Legal descriptions are given only in lot#x, no measurements are attributed to the lots on the city plat. The houses were built around 1900.

  2. #2
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Long Standing Property Line Thru Prior Owners on Both Sides

    so, how many thousands of dollars are you willing to spend to attempt to get a prescriptive easement? You cannot claim title by adverse possession as that requires the possessor to pay taxes on the property

  3. #3
    Join Date
    Oct 2011
    Posts
    314

    Default Re: Long Standing Property Line Thru Prior Owners on Both Sides

    The adverse possession clock for your state is 10 years. Tacking is a method by which a predecessor in title confers ownership of the property to the next homeowner? So, I would examine if someone conferred, gave or sold their property to kin? The google, aerial or GIS maps are useful in seeing how the area changed over time and whether or not it was maintained relative to tacking on.

  4. #4
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: How to Enforce a Long-Standing Property Line Different from Actual Boundary

    The principal theories under which you might allege the fence line as a boundary line (adverse possession, acquiescence, estopel) are outlined in Lilly v Lynch, 88 Wash.App. 306, 945 P.2d 727 (1997). The ten year mark is important. From the perspective of trying to shift the property line, it's a shame the fence did not go up more than ten years ago.

  5. #5
    Join Date
    Dec 2008
    Location
    El Dorado County, CA
    Posts
    395

    Default Re: How to Enforce a Long-Standing Property Line Different from Actual Boundary

    OK, first I've got to get this straight in my mind.

    You bought house from "B" (the house with the weedy yard and fenced side yard) 2 months ago.

    Fence was built 2005/2006, and "B" bought the house (now your house) sometime after the fence was built.

    By looking a Google Maps, the 1998 aerial image shows what appears to be a mow line at about the same place as where the fence is now.

    "B" had a survey of his lot (now your lot) at some point (do you know when?) which showed the fence not coincident with the property line.

    The fence encroachment was not disclosed to you prior to your purchase and you have only become aware of it since closing.

    "A" bought his house 8 months ago.

    "A" became aware of the issue sometime after purchasing his home but before you purchased yours.



    Do I have the facts straight?

    Now you are asking if "A" can be made to recognize the fence as the new legal property boundary. In partial support of this, you cite that "A" has not moved to reclaim the portion of his property on your side of the fence, that he did not remove the fence, and that he did not notify the RE agent handling the sale of "B's" house that there was a fence encroachment. Or perhaps you are asking if any or all of those facts would support your desire/claim that the fence be recognized as the legal boundary. You also wondered how "A" knew of the survey.

    "A" could have been made aware of the survey if it had occurred after he purchased by seeing the surveyors on site or seein the stakes they left behind. He may have been told about the survey by "B" or another neighbor. He may have been curious whether his lot corners had been marked and started looking around the vicinity of his corners and found the survey monuments. Washington is a recording state, meaning that under many circumstances (new monuments having been set being one of those circumstances) a Record of Survey drawing must be filed with the County. So the survey drawing is most likely a public record that you can readily get a copy of.

    Regardless of "A's" knowledge of the survey and the fence encroachment, and regardless when he became aware of it, he was under no obligation to inform the RE agent handling the sale of "B's" lot. That was "B's" responsibility, and a requirement. If the RE agent was aware of the matter (if he/she had a copy of the survey disclosing the encroachment or was otherwise told), then he or she was required to disclose the matter to you. RE agents are typically not required to obtain and be aware of surveys simply because they exist as public record, so if "B" did not disclose the matter to his RE agent, the agent would have no culpability.

    "A" may not have been in a position to do anything about the fence at the time he became aware of the matter. A landowner is ill advised to simply unilaterally tear down a neighbor's fence once a survey indicates it is encroaching. If you search this forum, you will find plenty of advice to landowners who have been in that situation and you will find that they are advised to proceed with care and with due consideration of the neighbor who owns the fence, giving them the opportunity to move it before proceeding to tear it down. The fence is the private property of the landowner who built it or who bought the property it was built to enclose, even if it does represent a trespass. In the few months that "A" has been on the scene, he may not have been able to get a clear and straight answer who the responsible party for the property was. Or it may simply not be that big a deal to him at this time and he may be fine with letting it stand where it is until it needs replacement, expecting it to be placed along the true boundary at that time.

    In short, none of "A's" actions or inaction to this point supports recognition of the fence under any theory of unwritten title transfer. In fact, his notifying you that the fence is encroaching but not forcing you to move it at this time might later be shown as Permissive Use, which has effectively stopped the clock on any future Adverse Possession or Prescriptive Easement claim. So if the recent survey correctly identified the true boundary location, you're S.O.L. on having the legal boundary moved to the fence location.


    But you said that the houses were built around 1900 and that the fence was built on what you called a recognized "maintenance line". That makes me wonder how the previous landowners came to recognize that line. It could be, and probably is merely representative of their best estimate as to where the line between the properties was, established without any understanding that it was marking the true line (no recourse to Agreed Boundary Doctrine).

    It also happens from time to time that the lot lines in an old subdivision were not measured as carefully as is possible with modern equipment and methods. If your houses were built around 1900, and if they are lots of a surveyed subdivision, that survey would have occurred at about or just before the time the houses were built. The lot corner monuments set would have most likely been redwood stakes. Remnants of those stakes often still exists although if they do exists, they are usually difficult to find and difficult to recognize for someone not knowing what to look for.

    If a pattern of similar encroachments in the same direction can be seen in the other lots on your block, you may have this situation. If that is the case, and a surveyor experienced at finding old lot corners like this (100+ year old wooden hubs) is able to find such corners corresponding with your "maintenance line", the line as marked by the old hubs would be better evidence of the original lot line than the recent survey would. It is the original line that holds, not one that later is measured more precisely but differently than the original line.

    It may cost you $2500 or perhaps significantly more to have a surveyor check into this for you. Not all surveyors are qualified to do that level of boundary work because relatively few have the experience in finding very old and difficult to find physical evidence, or know where to go to find documentary evidence which may help them to find old original wooden hubs. You definitely wouldn't want to go with the low bid if you are hiring them to do extra and what amounts to specialized investigation of your lot lines.

    Even then, the surveyor may find nothing at all and you are back to a fence encroaching over the line as best a surveyor can determine it in 2012 from what little evidence remains. Are you willing to spend $2500, $5000, perhaps more on the hope that a surveyor can find a valid reason why the "maintenance line" is where it is? If not, just accept the situation as it stands and move your fence to the line as recently surveyed, or plan on doing so when the fence needs to be replaced of "A" will allow it to stay until then. Just don't ever think of it as actually being your property or that you will be able to claim it as such in a few years.

    As others have said, if you go down the road of leagal action to force acceptance of the fence, you will almost certainly lose and spend several tens of thousand's for the experience.

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

    Default Re: How to Enforce a Long-Standing Property Line Different from Actual Boundary

    Legal descriptions are given only in lot#x, no measurements are attributed to the lots on the city plat.
    Land surveyors deal with and solve those problems every week. Trying to worry out the situation by avoiding the professional surveyor and making your own decisions based on your own extremely limited ability to research and analyze surveying records would be what any prospective purchaser of property should avoid.

    The previous poster, eapls2708, has sliced this and diced it well from most angles. The point I would make to readers of this post is that the way to avoid such a situation is to require a seller of property to provide a proper boundary survey prior to closing. Sellers, attorneys, real estate agents, etc. are not legally qualified or permitted in any state to express a legally sanctioned opinion as to where any property boundary line might be located on the ground. As a buyer, you are no more qualified to look at a fence or a mow line and think that might be a boundary.

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