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vmb · Jul 3, 2009, 10:46 AM

My property line has been the same for over 30 years. This line is fenced. Now my neighbor says that the line is wrong and has decided to use what he considers his land. When he bought the ranch this fence was in place. I am located in Shepherd Montana. Shouldn't this land, under adverse possession, now belong to me. My parents bought the property in 1970 and I bought it from the estate when my Father passes away in 2005.

usersuper1 · Jul 3, 2009, 12:50 PM

Neighbor had a deck on my property when I bought it (showed this on the platte) after ten years I wanted her to move it, but she took me to court & the judges gave her the small piece of my land because she took care of it. This fence thing should work in your favor. Good luck.

LisaB4657 · Jul 3, 2009, 01:59 PM

If you can prove that you satisfy all of the conditions for adverse possession then yes, the land will belong to you. But it doesn't happen automatically. You have to make application to the court for it. I suggest that you speak to a real estate attorney asap.

ScottGem · Jul 3, 2009, 04:15 PM

Originally Posted by usersuper1

Neighbor had a deck on my property when I bought it (showed this on the platte) after ten years I wanted her to move it, but she took me to court & the judges gave her the small piece of my land because she took care of it. This fence thing should work in your favor. Good luck.

Yours may be a different situation. You knew that the deck was on your property when you purchased it and you didn't take action at the time. One of the requirements of adverse possession is that the owner knew their property was encroached on.

In the OP's case, its not clear whether the neighbor was aware that the fence was over the line and did nothing about it.

To the OP:
First, what action has the neighbor taken? Was a survey performed?

Fr_Chuck · Jul 3, 2009, 07:30 PM

First and foremost you need to get a separate survey and see exactly where the line is for sure. You say he "claims" I did not see where a survey showed it wrong.

After that, you will have to go to court as stated above, until you do, it is his property if the survey says it is

AK lawyer · Jul 4, 2009, 07:02 AM

Originally Posted by Fr_Chuck

First and foremost you need to get a seperate survey and see exactly where the line is for sure.

No. First you should see an attorney, vmb. From what you say it appears that your neighbor is nakedly trespassing on your rights (either your property as it would be surveyed, or as acquired by adverse possession), no matter what a survey would show.

vmb · Jul 4, 2009, 10:40 AM

Thank You all for your answers and input. Just to clarify a few things. The fence was in place when my neighbor bought the ranch. He had a survey done about 4 - 5 years ago and it was then he found out that the property line was "wrong". At that time he did not tell me but his ex-wife did. At that time she told me that the property line would probably be 'grandfathered in'. Last summer was when he told me about the survey he had done. At that time he verbally told me that he was not going to do anything about it. He also told me of another person who had put in a pool that was on his property but that they were going to work something out. This offer was never put forth to me.

ballengerb1 · Jul 4, 2009, 11:03 AM

Lisa may be able to help with this but I think you are on thin ice. Your dad could have applied for adverse possession haf he known there was an error on the line. He did not. You buy in 2005 and the time limit for adverse possession has not expired. If he has a survey showing the land is his I'd get my own survey and see if they agree. What do you think Lisa?

ScottGem · Jul 4, 2009, 11:56 AM

I think you are in good shape. If he is basing things on a 4-5 year old survey and has not taken action since then, I think a court may rule in your favor. The limit on adverse possession for Montana is 5 years, here's the applicable laws:
Montana Adverse Possession Laws - MT Adverse Possession Laws - State Laws, Codes

The way I read these laws you would have to enter a petition to claim the land under these laws.

I would explain to the neighbor, that you believe, that the land is yours under adverse possession and that he cannot make any use of the disputed property until the matter has been settled by a court.

jmjoseph · Jul 4, 2009, 12:34 PM

First things first. Call a surveyor and have the line staked, and fence located in relation to said line. Don't " eyeball " it, run a string line, or anything short of having a professional come out and do it. I've been involved in dozens of line disputes. Don't get into any further conflict with this neighbor. After you've proven or disproven your point, talk to the surveyor concerning the laws in your area about adverse repossession. You've had the property yourself for 4-5 years, which MIGHT be too soon. Good luck, and be prepared for a hefty bill from the surveyor. Years ago George Washington surveyed a friend's property and after which sent him a bill for $250. The friend sent a reply asking for the bill to be itemized. Geo. Sent back this reply : "pins and stakes $5- knowing where to put pins and stakes $245".

ballengerb1 · Jul 4, 2009, 01:09 PM

Scott, we are reading this totally opposite, I think. The poster would have to adversely possessed this land for 5 or more years. He is telling us he has own the land since 2005 and now his neighbor says part of the land is his. Poster has not possessed the land for 5 or more years and the neighbor has stopped the adverse clock by laying claim. What do you think?

Fr_Chuck · Jul 4, 2009, 02:33 PM

Yes, no need to call an attorney until you know, If you do the survey and it turns out it is your property, there is no issue, you can wait till they sue you and merely use the survey to prove your case.

If your survey shows it is their property, you have two choices, give them their land, or fight it in court. Most areas will look at not only how long you owned it personally, but how long certain items were in place, the fence for example if it was there in the same place for 30 years and used as the accepted boundary, that is what the judge may use.

Did you not have it surveyed before you bought it?? Sorry I just could never buy something without knowing the exact legal boundries.

LisaB4657 · Jul 4, 2009, 02:48 PM

The time for adverse possession starts to run when the fence was placed on the property, not when the OP bought the property. The OP gets to use the years of fence placement prior to his ownership of the property.

To the OP: Get the property surveyed. If the fence is not within your property line, and if you don't want to move it, retain an attorney to make a claim for ownership by adverse possession. If the survey shows that the fence is within your property, send a letter to your neighbor stating just that.

AK lawyer · Jul 4, 2009, 03:26 PM

Originally Posted by ScottGem

... The limit on adverse possession for Montana is 5 years, here's the applicable laws:
Montana Adverse Possession Laws - MT Adverse Possession Laws - State Laws, Codes

The way I read these laws you would have to enter a petition to claim the land under these laws.

The Montana statute is typical of many such adverse possession statutes:

70-19-401. Action for recovery -- possession within 5 years required. No action for the recovery of real property or for the possession thereof can be maintained unless it appear that the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the property in question within 5 years before the commencement of the action.

In other words, your neighbor (or his predecessor in interest) would have had to sue you within 5 years of the building of the fence, if the fence was erroneously built on what was his land. Table of Contents, Title 70, Chapter 19, MCA

AK lawyer · Jul 4, 2009, 03:35 PM

Originally Posted by Fr_Chuck

Yes, no need to call an attorney untill you know,

Sure, rely upon dubious advice in this forum based upon possible misunderstanding of the facts &/or the law.
:rolleyes:

Seriously, most attorneys will give you an initial consultation free of charge. Now is the time to talk to one, not after you have spent big bucks on a survey.

ScottGem · Jul 4, 2009, 03:54 PM

I think I agree with AK here. Reading the law I think its possible that the law is such that the neighbor would have no case whether a survey is done or not.

LisaB4657 · Jul 4, 2009, 04:39 PM

I would agree with Scott and AKlawyer, except that the first thing that any attorney the OP goes to is going to do is order a survey. If there is a good case of adverse possession then the survey will be necessary in order to prepare a legal description of the OP's new property. I wouldn't want to rely on the survey prepared by the surveyor hired by the neighbor.

So the OP is better off getting a survey first, because if the fence is on his land then there's no need for an attorney.

AK lawyer · Jul 4, 2009, 06:01 PM

Originally Posted by LisaB4657

I would agree with Scott and AKlawyer, except that the first thing that any attorney the OP goes to is going to do is order a survey. If there is a good case of adverse possession then the survey will be necessary in order to prepare a legal description of the OP's new property. I wouldn't want to rely on the survey prepared by the surveyor hired by the neighbor.

So the OP is better off getting a survey first, because if the fence is on his land then there's no need for an attorney.

If the OP has a good case, it's probably not necessary to go to court to "establish" adverse possession. Force the neighbor to sue, if he cares to put his money where his mouth is. If he backs off and no litigation ensues, an accurate legal description won't be needed.

All I'm saying is don't rush into things. If you need a survey there will be time go get one.

LisaB4657 · Jul 4, 2009, 08:31 PM

If the neighbor sues for trespass and the OP has a good defense for ownership by adverse possession then the neighbor's suit will be dismissed but the dismissal won't give the OP clear title to that property without a legal description.

vmb · Jul 5, 2009, 11:45 AM

I found out yesterday from my neighbors ex-wife that she has a copy of the survey my neighbor had done. She is going to let me see it. She said that a different fence (that has also been there for years and years) is also not the property line. This fence IS located on my property which extends some feet beyond the fence. There is a lane/driveway involved which I own but neighbor has an easement on. My property extends to the other side of lane. She also told me that part of what neighbor has been using as his front yard and driveway is mine. So - he has known for some years that both fences were not the correct property line. But when he told me that part of my yard was now his he failed to tell me that part of his pasture was mine. If this wasn't such a mess it would be comical. So once I have the survey in hand I will have something to back me up. Maybe we can just trade the two sections of land and call it good.