Asked almost 4 years ago - Seattle, WA
FlagIn 2004, my neighbor built a fence between our two properties and we split the cost. In 2005 we had a survey conducted before putting on an addition and found that the fence was anywhere from 6" to 2' over our property line. We have no problem with the location of the fence and don't want it taken down, we just don't want to lose the ownership of the land. We mentoned it to the neighbor in 2005 and he suggested we draw up a document acknowleging the proper boundary and that he would lease the land for $1/yr. We didn't purue this option until late 2006 (after the addition was complete). The neighbor has been completely unresponsive to speaking in person or to 2 letters I have sent and lives elsewhere while trying to sell the property. What are our options. Do we face adverse possession?
From the facts you stated in your question, your neighbor's use of your property appears to be by your permission. In the statutory sense, this destroys any claim your neighbor would ever have for adverse possession. That said, you ultimately need documentation to back that us, so you should send your neighbor a letter to confirm it.
In the event your boundary line situation came to a lawsuit between you two, and your permission did not stand in Court, your neighbor would have to meet the statutory requirements of use throughout a 10-year uninterrupted period. So to have time to take action (until 2014).
The claims you should be most wary of are boundary line by (i) "mutual recognition and acquiescence" and (ii) parol agreement. The laws are similar to adverse possession, but a little different and with some different requirements. They can sometimes be easier to show to the Court, and if you neighbor can show either you run the risk of losing your property.
As for right now, if your neighbor is not responding, put an end to your stress and a potential hostile relationship with your neighbor right now! Send your neighbor a registered letter that you will be relocating the fence (at your cost) to the legally described and surveyed boundary line immediately. It's a good practice to verify that the survey markers are still where the surveyor placed them and the survey was recorded with the County before you move the fence.
I have had several cases just like yours in the last year, and they are all costing my clients a great deal of money and taking a bigger toll through stress. My clients don't truly enjoy their properties because of the disputes. A boundary line dispute between neighbors is not worth sacrificing your peace of mind, so take action right away.
If you need guidance, hire an excellent attorney to advise you. Good luck. Mark Arend
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