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Rcandmc · Sep 5, 2013, 06:14 PM

We purchased our home in 2005 with a back yard full fenced in. Our neighbors want us to move it as they had a survey done last week and our fence is over by a foot. Now our neighbors have lived in their home since 1977 and the fence was built in 1988. It has been 25 years. Why are they now wanting it moved and what can we do legally?

smoothy · Sep 5, 2013, 07:01 PM

Personally... I'd get my own survey done by someone else... because surveys have been off from time to time. And if that one doesn't agree with theirs... I'd put up a fight.

Fr_Chuck · Sep 5, 2013, 08:08 PM

I agree, first I would have my own survey done. If this fence is 25 year old, what type of fence, sorry but most 25 year old fence need to be torn down.

And honestly at this point,you can try to sue for properly line to be accepted as the fence if that was what it was used for all of those years, depending on how your states domain laws are written. Also perhaps let them tear down a old fence, if it is on their property, if it is on theirs, it is their fence to tear down. And use the money you would pay an attorney to sue, and just build a new fence on your property

joypulv · Sep 6, 2013, 03:41 AM

When I had a similar dispute, I went to the town and for a dollar got a plot plan of the whole block. Or you can look it up for free. Then get out your deed and see what the description is.

Some border disputes end up with a judge ruling that the two parties have to split the difference. Yes, standard surveys can be different. To get a really exact survey using distances from bronze markers in the ground, often miles away, is very expensive.

If the 25 year old fence does turn out to be on their land, they have to move it, not you.

smearcase · Sep 6, 2013, 01:08 PM

Were there any identifiable property corner markers in place when you purchased the property? Did the neighbor's surveyor find any previous markers? I would be looking for the old markers myself (and they are not usually very easy to find- metal detector can help sometimes if rebars were driven). Try to check for yourself before entering into other expenses.
Also depends on laws in your state as chuck mentioned- as to whether you have any obligations at all.

AK lawyer · Sep 6, 2013, 02:55 PM

Originally Posted by Fr_Chuck

... And honestly at this point,you can try to sue for properly line to be accepted as the fence if that was what it was used for all of those years, depending on how your states domain laws are written. ...

[Eminent] domain has nothing to do with it. I believe you are referring to is adverse possession.

The adverse possession period varies from state to state, so, Rcandmc, please let us know which state it is in which you are located. Also, were you required to have the property surveyed when you purchased? Review this survey and see if the encroachment was identified at that time.

Rcandmc · Sep 6, 2013, 04:35 PM

We live in Ohio and NO encroachment was listed at time if purchase or anytime after.

AK lawyer · Sep 6, 2013, 07:36 PM

Originally Posted by Rcandmc

We live in Ohio and NO encroachment was listed at time if purchase or anytime after.

You didn't exactly answer the question. Look at your survey, if one was done at the time of the purchase. Does it show the fence's position relative to the property line?

The SOL for adverse possession appears to be 21 years.

"2305.04 Recovery of real estate.
An action to recover the title to or possession of real property shall be brought within twenty-one years after the cause of action accrued, but if a person entitled to bring the action is, at the time the cause of action accrues, within the age of minority or of unsound mind, the person, after the expiration of twenty-one years from the time the cause of action accrues, may bring the action within ten years after the disability is removed. "

Since the fence was built in 1988, it has been more than 21 years, so you appear to have a case for adverse possession.

However if when you purchased you did get a survey showing the fence to be on the other side of the lot line, it can be argued that you didn't possess adversely since that time.

hkstroud · Sep 7, 2013, 08:03 PM

However if when you purchased you did get a survey showing the fence to be on the other side of the lot line, it can be argued that you didn't possess adversely since that time.

Do not understand that logic. If the fence is indeed located on the neighbor's property it would not be shown on a survey of OP property. A survey of the OP's property at time of purchase does not necessary mean that a plat was drawn.

If Rcandmc wishes to claim adverse possession it seems that the first question here would be, is the adverse possession of the disputed property by the previous owners of OP's property contiguous with OP's adverse possession to meet the 21 year time requirement.

AK lawyer · Sep 8, 2013, 06:47 AM

Originally Posted by hkstroud

Do not understand that logic. If the fence is indeed located on the neighbor's property it would not be shown on a survey of OP property. A survey of the OP's property at time of purchase does not necessary mean that a plat was drawn.
....

Let's get OP to answer that question, shall we? I recently purchased a home and the survey very clearly showed that my fence is on the neighbor's property, so I "speak" from personal experience.

The entire purpose of a survey (in conjunction with a purchase) is to find out where the lot lines are in relation to improvements such as houses and fences.

And, sketch or not, if there was a survey the surveyers would have located or established property corners, and should have marked them. In that case it would be very difficult indeed for OP to deny having seen them and their locations relative to the fence.

Originally Posted by hkstroud

... If Rcandmc wishes to claim adverse possession it seems that the first question here would be, is the adverse possession of the disputed property by the previous owners of OP's property contiguous with OP's adverse possession to meet the 21 year time requirement.

Normally it would be. The term used in the law of adverse possession is "tacking". It just about follows as a matter of course.

hkstroud · Sep 8, 2013, 08:54 AM

The purpose of a survey is to identify the boundaries or the property. This is done either by coordinates or relative to other established land marks. No requirement to physically mark, either temporarily or permanently, although the process usually results in temporary corner and some times line stakes.

What I don't understand is your logic.
A plat of Rcandmc property at the time of purchase, would not have necessary shown the location the fence which is on his neighbors property. If it did not it would be of no significance. If it did it, and Rcandmc was aware of it, that would only support that Rcandmc intended to adversely possess the property.

If Rcandmc is not making a claim of adverse possession, the neighbor can remove fence at will and at his expense. Rcandmc is not responsible for the actions of the previous owner.
Rcandmc's survey is of little or no significance unless it is used to dispute where the boundary is.