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  1. #1
    Join Date
    Jun 2015

    Default Fence Built Before Property Was Split is On the Wrong Side of the Property Line

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

    This is the story about two properties and 1 fence line. The Seller owned one property that was split into two properties. One property was then bought by a brother and the other bought by a sister. There was a falling out in the family. The sister paid a surveyor to come out to prove the brother's fence line encroached on her property. She was correct. His fence is 4 inches onto her property for about 50 feet. The fence was in place when the original owner owned both properties. It is a chain link fence that is on a concrete permanent curb. The fence has been in place since 1981.

    Can the sister force the brother to remove the fence? The brother needs to know any recourse. The fence is cemented in along a curb...

    Any advice would be graciously appreciated.

    Thank you!

  2. #2
    Join Date
    Dec 2008
    El Dorado County, CA

    Default Re: Border/Fence Dispute

    There are several published cases in OR regarding the relationship of fences to boundaries. One that I found helpful was Eidman v. Goldsmith, 149 OR App. 7, 941 P 2d 1045 (1997).

    In that case, to people owned a parcel that they physically divided in approximate quarters by building fences. They then made measurements of the fences, provided those measurements to a title officer and asked him to create descriptions of the 4 parts of their land. The title officer neglected to include mention of the fences in the descriptions that were prepared.

    They subsequently sold 3 of the parcels, each time verbally representing to the purchasers that the fences were the boundaries. The 4th parcel was sold by auction, if I recall correctly, after the death of the surviving owner. At the auction, the auctioneer stated "you are bidding on everything within the fences [of the remaining parcel]". So each person who bought one of the 4 parcels were told that the fences were on the property boundaries.

    After the person who prevailed at the auction took possession, she hired a surveyor to check to ensure that the fences were on the property lines. The surveyor made his measurements and reported that the fences were not on the property lines, and so the owner of this parcel sued her neighbors to "get what was rightfully hers".

    Backing up just a moment to review some facts:
    1. The landowners of the parent parcel themselves made the measurements upon which the descriptions were based.
    2. The landowners of the parent parcel were not trained surveyors and made rather imprecise measurements.
    3. The fences were built to define four areas that were later sold as four separate parcels.
    4. The deeds of the four parcels made no mention of the fences, although the fences were what the original landowners measured to define the parcels.
    5. Each purchaser was verbally told that the fences were on the boundaries or were the boundaries.
    6. The deed descriptions noted dimensions no differently than if a careful surveyor had measured them. That is, they implied locations that could be measured with precision.
    7. The surveyor established the property boundaries as if the dimensions in the deeds were reliably sufficient to re-establish the intended positions of the property corners. He did not inquire as to the source of the measurements or circumstances of the original establishment of the lines.

    So there were a number of missteps along the way to clearly ensure that the boundaries and fences were at the same location. About the only thing consistently done right was that each purchaser was told that the fences were the boundaries. 3 out of 4 accepted those statements as reliable.

    Ultimately, the court looked at the full set of circumstances, and the key elements were:

    1. The original landowner intended to convey parcels with boundaries coinciding with the fences.
    2. That intent was clearly communicated to each purchaser prior to each conveyance.

    The court held that the fences were the boundaries and that the dimensions given in the deed were inaccurate.

    All court jurisdictions within the US profess to decide boundary disputes to comport with the intent of the parties of the transaction by which a parcel was created, but the Oregon courts seem to consistently go a bit beyond most other jurisdictions in considering the circumstances surrounding that first conveyance and actual physical establishment of any disputed lines. I think that they've got it right. Going that extra step that some courts don't or won't go better ensures that the established property rights as first intended to have been conveyed are preserved rather than redefined according to inaccurate or imprecise and improperly applied descriptions.

    In the case of this brother & sister, the fact that the fence predated the conveyances of the two parcels from the original larger one, together with the fact that the precisely measured line is within inches of that fence, strongly suggests that the line described in the deeds was intended to be along that fence. Looking at the history of just how, when, and why the fence was built, along with how and why the deed line was described so as to fall so closely to the fence when a later surveyor places it according to precise measurements would go a long way in being able to predict who would prevail in this dispute.

    In most jurisdictions, on the limited facts you've given, I'd say there isn't enough to begin to guess who might prevail. In OR though, even with this thin set of facts and based on the cases I've studied, I'd say the brother has at least a slight advantage.

    Even so, I strongly suggest that the history of the fence and the line be investigated and documented, and that each party consult an attorney and get some preliminary advice based upon the entire set of facts. $500 or so of a lawyers time is money well spent if it heads off litigation likely to cost each party north of $100,000 over a dispute for which the outcome can be reasonably predicted.

    But then again - fighting over 4"??? Whatever this dispute is really about, it's something other than the boundary and the fence. That just happens to be a collateral issue that will serve to escalate the conflict.

  3. #3
    Join Date
    Jun 2015

    Default Re: Border/Fence Dispute

    I greatly appreciate your reply. Yes, you are correct in stating this is a collateral issue. The daughter of the sister has taken over her mother's affairs due to illness, and the niece does not like nor has ever liked the brother. Actually, she doesn't like anyone. Just that type of personality.

    I will relay the information, and again, thank you for such a detailed reply.

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