Their Fence Is Encroaching on Your Property. Could You Lose the Land?

It’s an odd legal concept. Building anything on the wrong side of a property boundary isn’t legal, but if nothing is done about it, the improper fence builder could become the owner of the enclosed land.

So, say you’re uncertain about the placement of the fence. Your neighbor put it up six years ago. You never thought anything was odd about it, but then you spotted remnants of an older boundary fence in the brush on your neighbor’s side of the fence.

Your concern leads you to check the property’s survey, or have a surveyor complete a new one. If the survey shows a misplaced fence, then you, the actual owner of the improperly enclosed land, must speak up.

What Are the Basics? Get to Know Fences and the Law of Adverse Possession.

Many homeowners build fences on their property lines. Once built, a boundary fence belongs to both owners. Both are responsible for upkeep of the fence. Neither may modify or remove it without the other’s consent.

But what if the fence is misplaced?

If your property is being encroached upon by a neighbor’s fence, it’s important not to wait too long. If you say or do nothing, and enough time passes, the neighbor could claim the enclosed strips of your land. It’s the legal concept of adverse possession.

Your state law will tell you how a trespasser can take over property by adverse possession. Generally, to prove in court that you have lost the strip of land in question, your neighbor’s encroachment would have had to be:

• Actual, notorious, and open. This means the neighbor has taken over the land in an obvious way, not in secret. That’s the case here. Your neighbor’s fence is obvious.

• Hostile to the interests of the true owner. This is the case here, where your property value is diminished without access to the full acreage. Because you did not give permission for your neighbor to enclose your land, the encroachment is hostile, to use an old legal term.

• Exclusive. This is the case here. The neighbor has effectively taken full control of the part of your property that’s been fenced in.

• Continuous. There is no break in the situation. But for how long? State law says how long the encroachment would have to continue. Often, it takes something between 7 and 20+ years to get title to land by adverse possession.

All this is something that a court would have to find. The court would examine state and local rules and issue a binding order.

So, let’s say you live under the laws of Ohio, where “continuous” means 21 years. Your local court will not grant title by adverse possession to your neighbor unless the fence was established more than 21 years ago. The fence on your property hasn’t been there anywhere near that long. So, you’re still good! The land is not even close to being lost.

Now, what should you do?

Every Inch Is Your Asset. See Something? Say Something.

Around 15 years from now, that fence will be 21 years old. Then, the adverse possession statute will kick in. Your neighbor will have built a legal claim to ownership of all the land they fenced in—including what used to be yours.

Maybe you don’t really care about that strip of land. But you’ll lose part of your property value if you don’t head off adverse possession of the land.

So, speak up. Talk to the neighbor. Could the neighbor move the fence? If the improper placement was accidental, maybe the neighbor will quickly agree to hire someone to relocate the fence.

Now, say the work would be extremely burdensome. You are open to compromise. What other options are available to work through this issue?

“You Can Use It, But It’s Not Yours.” Consider Granting Formal Permission or an Easement.

Consider the wisdom of creating a permission letter. In fact, any time neighbors build fences, they can check with the township for a fence line agreement form. The completed form should be submitted together with a current property survey. Of course, the fence should match the current survey’s border, and must not violate local construction rules.

But back to our current predicament. Here, you and your neighbor determine that the best way forward is through a voluntary agreement to let the fence vary from what the property surveys show. Speak with a local real estate attorney. You need to be sure your rights (and those of your heirs or subsequent owners) are protected. To that end, your attorney can communicate with your title company.

You might decide to modify the property boundary by mutual consent. Or you might prefer to iron out an agreement for an easement. An easement, granted by you to the other owner, shows that you haven’t given up the property for good.

Once you have an agreement you can live with, record the document. Check your local rules for having the document notarized and filed with your home county’s recorder of deeds.

Need to grant access rights without transferring land ownership? See our easement deed forms and complete guide.

“We’re Not Gonna Let the Neighbor Take It!” Have You Considered an Agreement to Rent or Sell?

Again, say your neighbor doesn’t want to address the misplaced fence due to expense or inconvenience. Maybe you’re OK with this. But you might understandably decide that your neighbor should compensate you for the enclosed land.

So, you give formal permission to your neighbor to keep the land enclosed. This way, no adverse possession can be claimed later on. This is because your neighbor’s fence placement can’t be deemed “hostile” to your interests if you yourself agreed to it.

Will the neighbor sign an easy rental agreement? Even if it’s just a few bucks a year, they can keep their fence where it is. The rental agreement and annual payments are enough to prove the land continues to be yours, despite the fence over the boundary line.

Alternatively, you could work out a sale of the strip of land to your neighbor. Your attorney can ensure that you receive the fair market value and that the title and mortgage companies are on the same page with you. The neighbor should be willing to cover the survey and appraisal report, and the lawyer’s fees.

If your neighbor won’t agree to work with you at all, what then? Resist the urge to move the fence or any of the neighbor’s belongings that might be placed on your side. Ask a lawyer about a “cease and desist” letter, with a deadline by which your neighbor needs to remove the fence and clear the area for you. At that point, you might come to a settlement agreement. This could direct your neighbor to pay for the land, cover the relevant property taxes, etc.

Real estate boundary disputes are high-stakes matters. This article does not replace individualized legal advice. A real estate lawyer in your state can guide you in protecting your and your heirs’ interests.

Potential boundary line disputes are one reason to buy enhanced title insurance when closing on a home loan. These extended policies cover issues arising during ownership—not just defects unknown before closing day.