Misunderstandings regarding boundary lines and fence locations often lead to strained relationships between neighbors. Addressing encroachment issues prior to closing can help ensure that a buyer enjoys a more fulfilling ownership experience.
It is not uncommon for fences to be situated off of a boundary line, especially in older subdivisions. In fact, an argument can be made that it is better for an owner to place a new fence slightly inside the boundaries of his/her lot, so that the neighbor has no right to dictate its location and maintenance. However, human nature dictates that if you give your neighbor an inch, they sometimes take a mile, laying claim to ownership of the strip of land between the fence and the boundary line. Their claim, while typically unenforceable, can still lead to future problems and loss of future contracts.
Who actually owns the fence, and who can control its appearance/location? The brief answer is that the fence is “owned” by the owner (or the predecessor in title) who constructed it, even if it encroaches onto the neighbor’s property. While the fence owner had no right to encroach over the boundary line, that encroachment still does not give the neighbor license to unilaterally move/destroy it. A prudent neighbor should approach the encroacher with evidence of the encroachment (such as a current survey), and reach a resolution of the matter, and head to court if necessary. But exercising a self-help remedy of forcible removal can only lead to future complications.
Typically, a meandering fence was constructed so long ago that it is unclear to either owner which property the fence belongs to. While not foolproof, the parties could rely on the appearance of the fence itself. Usually, a wooden fence owner would construct the fence in such a way that the “smooth” side of the fence faces the owner’s home, and the bracketed support beams face the neighbor. But not always, of course.
Can a property owner lay claim the extra strip of land outside his/her property line and the constructed fence? The theory of adverse possession stands for the proposition that a party who possesses real estate for a significant time can claim ownership of the land, even if they don’t have a deed to it. Although the doctrine is quite popular among those who are encroaching over a boundary line, courts are extremely reluctant to recognize such ownership, especially for platted residential lots and fence issues. And even if viable, adverse possession must be proved up in a court hearing, and a court order obtained. Without a deed or long-term tax payments on the claimed strip, the argument will typically be summarily dismissed.
A prudent buyer under contract to buy a home subject to an offset fence would be prudent to require an agreement from the neighbor as to the property line and rights to move and maintain the fence before closing on the transaction. These encroachment agreements can go a long way to avoid future buyer’s remorse.
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Jeffrey A. Rattikin is an AV Pre-eminent rated attorney, Board -Certified in Residential Real Estate Law by the Texas Board of Legal Specialization. Mr. Rattikin has provided transactional legal services to clients across the State of Texas for over 28 years, emphasizing real estate, business and title law. Mr. Rattikin continues to define new legal frontiers through his incorporation of technology to enhance the attorney-client experience, as evidenced by his firm’s innovative websites www.rattikinlaw.com and www.texaslegaldocs.com.
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