Fence Encroachment

> First let me say I am not a surveyor, I work in forestry but enjoy reading the topics on this site. I purchased some property from a relative and found 3 corners but not the 4th.( the property being in the shape of a rectangle that at one time had all the corners marked ). I followed the remnants of an old barbwire fence starting a the section corner(the POB for this property)for about 1/10 mile, then a newer electric fence that angled over off the section line on to my property. I hired a surveyor that confirmed that the electric fence is over on me and he also set my 4th corner. Both original deeds call for the section line to be the boundary line. The adjoining land has been sold several times over the years and I think the newer fence was built about 1992. The recent deed for the adjoiner property calls for the newer fence a agreement line that my relative said he knew nothing about. The newer fence is in a wooded area on the backside of my property. Can the adjoining property owner claim adverse possession? The survey of my property also revealed that adjoining landowners recent survey did not close and the deed calls did not match what my surveyor found on the ground. I haven’t talked to a lawyer yet, thought maybe someone on here had some advice.

Hey Pinecone, Welcome to the mix. I would say that your surveyor would be your best advocate for answering your questions. If it was me I would surely have the answers or be able to point you in the right direction along with showing all of the pertinent information I used to establish the boundary on a map. Seems the agreement can't be one sided and be binding but somehow it came to be that the adjoiners deed contained language for it. What state are you in? Here I would have had to file a recorded survey map if I was setting new corners of your property and or finding large material discrepancies within the records. Before lawyering up, talk to the adjoiner, your surveyor, his surveyor and relative. If you could all do this together, it seems you could most likely avoid a major expense. Mediate rather than litigate.

Thanks for the reply, I live in Mississippi. My surveyor provided me with a nice plat showing plenty of information including the encroachment and the adjoiners surveyor’s mistakes such as the deed call S 00 32’ 08”W 440.66 which my surveyor found on the ground to be S 07 50’ 43”E 409.27. I run a line with my compass about a year ago before I had it surveyed trying to find my missing corner and could tell their deed didnt match the stakes on the ground. Both surveyors have agreed to talk hopefully they can work it out. I hope the adjoiners surveyor will man-up to his mistakes( I’m not saying mine is the king of surveyors but truly believe he is right) I have offered to split the difference because my corner stake ended up in the backyard of the adjoiners new house, but my surveyor said I coundnt until their deed is corrected. I have talked with them several times and they are nice folks. It looks like to me before a deed is recorded it would have to match the adjoiners deed but in Mississippi I believe its rare.

Good advice from Jared. To answer your question about an agreed line, no, it can't be a one-sided agreement. If there is no documentation by which both parties agreed to the fence, and there is no history of actions by the neighbor with your relative that show an agreement that was undocumented, then the language in your neighbor's deed as to the fence being an agreed line is erroneous.

Whether or not the line as marked by the 1992 fence might constitute the limit of a valid claim by adverse possession will depend upon the laws of your state regarding adverse possession (the required time periods can vary greatly between states), and may also depend upon other facts that you may or may not recognize as important. i.e., Has there ever been a dispute over the line's location? Was there any reason that the section line would have been considered unlocatble with a reasonable degree of certainty? (not likely since 2 surveyors purport to have located it) Did your relative ever give written or verbal permission for the fence to exist?

If at some point, your relative had told the neighbor that the fence could remain until such time as the line location could be verified by survey, that would constitute permissive use and block an AP claim. If it's in writing, that's great. If it's verbal, then it's your relative's word against your neighbor's and may come down to which a judge finds to be more credible.

Assuming that the section line was reasonably locatable (a surveyor could locate it with reasonable certainty), then a Boundary Line Agreement would not have been applicable in most jurisdictions. In some jurisdictions, a BLA can be used to recognize long-standing fence locations as the true boundary where a recent survey finds that positions of the lines would be more mathematically correct in a substantially different location.

But to now hold a relatively recent fence that has no connection to the originally established line is not a recognition of the line as originally established on the ground, nor an agreement to recognize a line established as the best guess of an ambiguously described and never previously established line as the best estimate and clarified position of the ambiguous boundary location.

Holding the new fence location, contrary to a previously established line (per section corner monument and the up until recently missing monument) and contrary to the reasonably locatable line per your description and per your neighbor's previous description (the section line), constitutes a transfer of property.

A Boundary Line Agreement cannot be used to transfer property. It can only be used to clarify the definition of an ambiguous line.

Many jurisdictions have an administrative process for a Boundary Line Adjustment in which the affected parties agree to move the boundary from its original location to a desired new location. This is a transfer of a portion of one property to the other in order to effect the new line and erase the old one.

Transfers must be in writing. They are land conveyances. If there is no deed transferring a portion of your parcel from your relative to your neighbor (or neighbor's predecessor in title), there can be no transfer. The exception to that is when a court evaluates and recognizes the validity of a title claim by adverse possession. The court judgment satisfies the requirement that the transfer/conveyance be written.

Another point to consider is that a recorded deed constitutes constructive notice, and by putting the language in their deed regarding the fence being the boundary, they have put it in writing in a public document. This may set up the condition that you acquiesce to that writing over time if it remains unchallenged. How long ago did this mention of the 1992 fence as an agreed boundary first appear in a deed? Was it quite recently, or was it longer ago that the period of repose stated in your state's laws? Might make a significant difference in the strength of any claim being made by your neighbor. Might not if there was never any agreement and the description can be put in the light of being an attempt to defraud you of your property. Courts typically don't like misuse of the laws pertaining to adverse possession as tools of attempted legalized land theft.

Like Jared said, begin by going to your surveyor. Hopefully your surveyor is well versed in these areas and can help in resolving the matter without the need for litigation, or help as an expert consultant to your attorney should more robust legal action become unavoidable. Also hopefully, your surveyor can direct you toward Alternative Dispute Resolution or even himself be able to facilitate a resolution between you and your neighbor.

If JB Stahl happens to come across this thread, hopefully he can chime in on the boundary principles and on ADR in this case.

Edit/add on in reply to your last post: The neighbor's deed doesn't necessarily have to match up to adjoiners' deeds (some of them may contain discrepancies or even errors), but it does need to match up with his predecessor's deed in that the previous owner could not sell what he did not already own. If he only owned to the section line, then any property decribed beyond the section line is not a valid part of the conveyance.

Thanks for all the information, I'm going to do some research on the points you mentioned and try to post tomorrow what I find out.

A fence built in 1992 is not necessarily a recent fence. In most states it would meet the usual 20-21 year statute for AP. But Mississippi only requires ten years for AP.

As an electric fence, it is certainly hostile.

I wouldn't bank all of my hopes on the results of the surveyor's conversation, although that could be the ideal non-court outcome for you.

I would be asking some questions of my lawyer at this time about what I might need to be preparing for should the amicable result fall through.

Not trying to be gloom and doom, just diligent.

Good Luck!

The Agreed Boundary/Acquiescence/Estoppel Boundary Doctrines vary quite a bit from State to State. Likewise the requirements to perfect title by Adverse Possession vary widely but at least this can be found in your State Statutes.

We need to know what State you are in, in order to comment intelligently.

If you are in California I wouldn't put much hope on your neighbor having a valid claim but there isn't much use in commenting further if you aren't in California.

An amicable solution is best and cheapest especially if a Land Surveyor made a mistake and now will pay to fix it such as a land swap which allows your neighbor to keep his backyard while making you whole in total acreage.

A lot line adjustment giving your neighbor his backyard but then having him transfer you an equal amount of land somewhere else makes the most sense if that can be done.

Does Mississippi require tax payment as one of the elements?

That is the big sticking point in California since the Courts generally presume you pay taxes on only your legal description at least since Proposition 13 in the 1970s. The Statute does not start to run until the APer has met all of the requirements (5 years). I have read some commentary stating that the presumption should be tax payment is to occupation because that is how the average purchaser sets their offer amount and the final agreed price is essentially the assessed value but someone would have to convince the Supreme Court to change the presumption.

Go to a Public Law Library near you and see if they have a Treatise on Mississippi Real Property then look up Adverse Possession, Boundary by Acquiescence, Boundary by Agreement and Boundary by Estoppel (probably doesn't apply though). The topic names may vary somewhat (I'm just guessing) but they all should be under Boundaries or sometimes Adjacent Properties.

The Nolo books are pretty good too and are in more plain English.

> An amicable solution is best and cheapest especially if a Land Surveyor made a mistake and now will pay to fix it such as a land swap which allows your neighbor to keep his backyard while making you whole in total acreage.
>
> A lot line adjustment giving your neighbor his backyard but then having him transfer you an equal amount of land somewhere else makes the most sense if that can be done.

:good:

If it's calling for an agreement line, then it's not adverse.

Also, an unwritten agreement isn't worth the paper it's (not) written on.

Damm nice folks

Damm nice folks! They will be the ruination of this country!

Here's how I see the situation. You have some people using your property. They didn't start the problem. They're just the ones taking advantage of it. They have no reason to appear to be not nice, because being nice works to their advantage. Reverse the situation and I bet they wouldn't be nearly so nice. Slap their mouthy, snot-nosed six year-old brat who really needs a good butt-whoopin' just one time and you'll find out how nice they really are.

I would encourage you to find an attorney who understands property law. That excludes about 80 percent of those offering such services. Ask some people who should know first. The relevant laws and timelines in Mississippi are probably a bit different than they are in some other States. That is why it is difficult for a diverse group like this to give you a single, correct answer. Also, the electric fence may or may not qualify as a legal fence per Mississippi law. It may depend on the number of wires, spacing between wires, height of lowest and highest wires and spacing between posts. Again, this is the type of question that an attorney skilled in property law can research in a matter of a few minutes. Others wouldn't even know to consider the fence construction aspect. The value today of the displaced area being used by them as lawn may be many times the average value of a similar-size tract elsewhere. That needs to be determined prior to making any kind of offer to swap land.

Would you give these neighbors a $20,000 anniversary present? I didn't think so.

Damm nice folks

> Would you give these neighbors a $20,000 anniversary present? I didn't think so.

[sarcasm]There you go.......spend $50,000 on an attorney to protect your $20,000 property.[/sarcasm]

Okay, I don't know the value of the encroached-on land nor how much legal fees would come to, and am being sarcastic. But it sounds like you are doing the exact right first step, in having the two different surveyors discuss the boundary differences. They may not resolve it, because, frankly when that kind of problem occurs there is most likely evidence to support both solutions. But, hopefully both parties can see what some of the problems are, and how best to resolve them without too many legal problems. Perhaps "swapping" some land if it proves that your surveyor is most likely correct.

Adverse possession claims and court cases can be long, drawn-out and very expensive ordeals, whereas if one can recognize a possible mistake and work out the differences fairly you might be better off.

my first course of action would be to determine if the agreement actually exists, a signed agreement most likely will be valid and your recourse is to try and get some money from the title company or your relative. on the other hand if there is no signed agreement, I would ask the neighbor to swap areas or alternatively move their fence.

Thanks again for the advice and information. Hopefully my surveyor and theirs can meet and get this settled. The encroachment amounts to about 3/10 of an acre so it’s not worth going to court. I will post an update when this is settled.