Many of you may be familiar with “Wilson”, a beloved television character who hid his face behind Tim Taylor’s fence on the 1990s show “Home Improvement.” Wilson and Tim had an understanding and a generally healthy and neighborly relationship over that fence, and they also delivered some perfectly timed one-liners. But that’s Hollywood. We, regular humans, are territorial by nature. Even though the proverb “good fences make good neighbors” is attributed largely to Robert Frost, there is nothing poetic about an ill-placed fence or a discontented neighbor. In fact, sometimes, both the fence and the neighbor are the problem.
With COVID and people being home more than ever, there seems to be a large uptick in the number of folks who enter our office with a survey in hand concerned about a neighbor’s claim to “their land” or an encroaching fence, walkway, or wall. There are a few things to know if you find yourself in this scenario.
Typically, when you purchase real estate, it has either been surveyed, or a new survey is ordered. A survey is essentially a birds-eye view “drawing” of your real estate and all essential structures. It will show you POB or “point of beginning” and from there will visually depict the location of a metes and bounds description contained in your deed to define what is yours (and sometimes what is not). A survey may show encroachments, easements, and other things that impact your ownership.
It is critical that you see your survey before you purchase and understand any restrictions or encroachments. So what are these things? An encroachment is a structure, such as a fence, that does not belong to you but is on your property. The easiest and most common examples are fences and/or driveway aprons. Why do these things matter to you? Because if they remain for a long enough time period and are “open and notorious” without you (or the prior owner) doing anything about them, their continuation may affect your ownership of that impacted land and your land’s value. For example, if your neighbors have lived in their home for more than 30 years, and their driveway has encroached on the boundary of your property by a foot, they may well now have rights in that land through a prescriptive easement or adverse possession. That easement or ownership will be binding on subsequent landowners. There are many different kinds of easements, and they can occur in various circumstances, including by necessity for a landlocked parcel. Because each type has a different impact on your property value, this can be a large stressor to the neighbor relationship.
But what if you would like to remain neighborly and allow your neighbor to use a bit of your land without forfeiting your rights to it? How do you ensure that you do not have an issue at that time if you go to sell? You can grant your neighbor a “license” to use the land, as that can be revoked in the future, is personal, and is not considered an interest in the land itself. If you have an issue with a neighbor, it is always best to try to resolve it amicably and directly, but when you cannot, it is best to understand your rights and options by consulting with an attorney.