Property owners often care deeply about protecting the boundaries of their land and preventing unauthorized use. Neighbors who encroach on land violate a sense of pride and ownership that comes with owning land. Some encroachment disputes arise when the boundary is clear but the adjoining landowner believes the encroachment is justified. Other disputes result when the neighbors simply cannot agree on the location of the boundary.
Boundary problems become legal problems when one landowner excludes the adjoining owner or regularly accesses the disputed area. Common examples include erecting a fence, building a carport, or placing a shed. When an adjoining owner excludes a neighboring owner for a long period of time, the adjoining owner may eventually take title to the disputed area (known as “adverse possession”). If the adjoining owner accesses a right of way for many years, such as using snowmobiles over a path to a ski-slope, the owner may permanently acquire a right of way (known as an “easement by prescription”).
Property owners most often take action at the time of purchase or sale. Newly minted buyers often discover after purchase that a neighbor was encroaching on the prior owner for many years. Prospective sellers often act when they are unable to sell for full market value or are prevented from selling entirely.
Land rights that go unenforced may be lost after 21 years. If a person occupies a portion of land with 21 years of continuous and hostile use, and meets all other requirements, title to the disputed area may transfer to the occupying person. The time period is reduced to just 10 years effective June 2019 for residential properties containing a single family home on a lot size not exceeding a half acre.
The 21 year timeline is especially dangerous for recent buyers because the time does not reset due to a purchase. A recent buyer may unknowingly take the property subject to an encroachment that was ongoing for the previous 20 years. The recent buyer may lose rights to the disputed area unless prompt action is taken.
What can be done to resolve boundary disputes and prevent loss of rights?
1. The disputing persons can come to an agreement on a new line or treat the disputed line as the boundary. Settlements are always the best solution, but it is often difficult to achieve. A person who has used a disputed area for a long time may be unwilling to relinquish the area and a new owner may demand the full land area for which they paid.
2. A property owner can send a certified letter of permission to the encroaching owner. The effect of a letter is that the encroaching party now has permission. Permission tolls any claim for adverse possession or prescriptive easement. But if the encroaching person responds to the letter, the tolling ends and the hostile use continues. Letters also do not definitively resolve the dispute, creating risk to the landowner whose property is encroached.
3. Initiate a legal case to remove the encroaching person. The most effective way of resolving a dispute is to take legal action. The filing of a case also preserves legal rights if filed within the 21 year limit. Property owners never benefit by delaying enforcement of their rights. Delays may result in unanticipated pitfalls and loss of legal rights.
As a real estate attorney to property owners, I help resolve legal disputes and avoid costly mistakes. If you know a property owner involved in a boundary dispute, please give them our contact information.
Phone (484) 690-4613
Subscribe HERE for more helpful real estate guides and resources.