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  1. #1
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    Oct 2020
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    Default Does a Survey Trump Adverse Possession with Land Around Shared Fence

    My question involves real estate located in the State of: CA
    We bought an old house outside of San Francisco with an old fence on a small lot. We are doing a complete demo of the property. When we bought the property, we spent $9000 for a survey and filed it with the city/county. On the south side, the survey showed we lost 4 feet of property along the fence and the neighbor asked to reestablish the correct property line when we put up the fence. On the north side, the delapidated fence is on our property and the property line is off by 2 feet, so we'd gain 2' x 85'. We'd like to remove the delapidated fence, reclaim our property, and put up a new fence. These neighbors have expressed that they do not agree. They have lived there for 20 years. Is the land ours and do we have the right to put up a fence on the property line? They like to battle. And we don't. How would you recommend we proceed? Thx so much!

  2. #2
    Join Date
    Oct 2014
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    8,238

    Default Re: Does a Survey Trump Adverse Possession with Land Around Shared Fence

    You may take out the old fence and put up the new one on the property line if you wish, but you do so knowing that the neighbor might then file in court to quiet title and assert that the contested strip of property is theirs by adverse possession. Whether they actually meet all the requirements for adverse possession, though, is something I can't determine from the facts given. If you get sued, you'll want to see an attorney for representation in defending you. You may wish to see a real estate attorney before putting up the new fence to see if you have a good defense to an adverse possession claim to help you decide if you want to expend the money and effort to put up that fence.

  3. #3
    Join Date
    Nov 2013
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    7,052

    Default Re: Does a Survey Trump Adverse Possession with Land Around Shared Fence

    Quote Quoting RDM
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    On the south side, the survey showed we lost 4 feet of property along the fence and the neighbor asked to reestablish the correct property line when we put up the fence. On the north side, the delapidated fence is on our property and the property line is off by 2 feet, so we'd gain 2' x 85'. We'd like to remove the delapidated fence, reclaim our property, and put up a new fence. These neighbors have expressed that they do not agree. They have lived there for 20 years. Is the land ours and do we have the right to put up a fence on the property line? They like to battle. And we don't. How would you recommend we proceed? Thx so much!
    Quote Quoting Taxing Matters
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    You may take out the old fence and put up the new one on the property line if you wish, but you do so knowing that the neighbor might then file in court to quiet title and assert that the contested strip of property is theirs by adverse possession. Whether they actually meet all the requirements for adverse possession, though, is something I can't determine from the facts given.
    Adverse possession is only one of the doctrines that could be claimed. However, unless the neighbor has used the property adversely to the owner and can show that they paid taxes on the land (in CA), it is highly unlikely that a court would grant AP. Just cutting the grass doesn't arise to adverse use. Did they build a shed on it, put a driveway in, plant a vegetable garden on the land? So the question is what did the neighbor use the property for?

    A court may grant a prescriptive easement to the use of the land depending on the history. A court may use the agreed-boundary doctrine depending on why the fence was placed where it is. Was there any agreement between neighbors to place it there. Was it the agreed boundary when it was erected?

    A court may use the relative hardship doctrine to come to an equitable solution in resolving the dispute.

    Each one of the doctrines has elements that must be met and there is no information to even make a guess what the suit might be about.

    I would not be building a fence on disputed land. You should resolve the issue first or you may find yourself removing it.

  4. #4
    Join Date
    Oct 2020
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    2

    Default Re: Does a Survey Trump Adverse Possession with Land Around Shared Fence

    We are having a conversation with neighbor this afternoon and will have more information. There are no structures on the land by the fence. There is some ivy on it. Thx so much for your feedback.

  5. #5
    Join Date
    Jul 2018
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    156

    Default Re: Does a Survey Trump Adverse Possession with Land Around Shared Fence

    Sure, you could rightfully erect a fence on ''the property line." So could your neighbor . But beforehand it would be nice to know precisely where that line is. And before you begin proceeding on the basis of the survey, you may want to consider a principle of real property law known as Boundary by Acquiescence or by Mutual or Tacit Consent!

    In other words, your neighbor's hole card that if properly played would decidedly out-rank and trash your over priced land survey!

  6. #6
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    Nov 2013
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    Default Re: Does a Survey Trump Adverse Possession with Land Around Shared Fence

    Quote Quoting latigo
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    Sure, you could rightfully erect a fence on ''the property line." So could your neighbor . But beforehand it would be nice to know precisely where that line is. And before you begin proceeding on the basis of the survey, you may want to consider a principle of real property law known as Boundary by Acquiescence or by Mutual or Tacit Consent!

    In other words, your neighbor's hole card that if properly played would decidedly out-rank and trash your over priced land survey!
    I would have included boundary by acquiescence if this OP was not in CA. In 2012, CA court of appeals decided a case that effectively struck down the doctrine unless there was an agreement between neighbors. California courts will not apply the agreed-boundary doctrine to resolve property boundary disputes when there is no evidence that neighboring property owners entered into an agreement to resolve a boundary dispute and the true boundary line can be determined from the legal description in an existing deed or by a survey.

  7. #7
    Join Date
    Oct 2007
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    Ohio
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    Default Re: Does a Survey Trump Adverse Possession with Land Around Shared Fence

    In California, as in most states, the only person legally qualified to establish or re-establish a boundary line on the ground is a licensed land surveyor.

    As that has already been done in this case, the surveyor's opinion as to the boundary location stands as prima facie evidence of the true location of the boundary in a court of law. In other words, it stands until overturned in some manner in court, or by written agreement between the adjoiners as to some other location.
    Resistance is not futile; it is voltage divided by current.

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