my back fence is along the property of a church, i have lived here since 1997. last summer the church wanted to build a shed behind our fence, so they asked to remove my fence, build a retaining wall on my property and put the fence back. we decided not to let them, because our property would be left open for an undetermined amount of time and we were concerned about safety. today, they left a message saying they had a survey done and our fence is 4 feet on their property and we could either move the fence or discuss changing the property line (i'm assuming monetary reimbursement would be required). the neighbors on either side have fences that follow the same line & they have not been asked to move their fences. i also have a retaining wall, irrigation, shrubs & rocks within that 4 feet.
Real Estate Attorney
It is very important that you confer with a local attorney. You may have already acquired legal ownership of the area in question through the legal process of adverse possession. In Washington the relevant time period to acquire ownership adversely is typically ten years of continuous use. You may have to have your ownership confirmed judicially. Aside from the ownership issue, if the church wants to build a shed there may also be a set back requirement under your local zoning code. I wouldn't assume you have to move your fence. As a result of the survey both you and the church now have what is commonly known as a "cloud on title" which should be resolved. An attorney will be able to advise you of your options.
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Real Estate Attorney
I agree with the previous answer and there are specific elements of adverse possession and from the brief question the fence may be able to stay. But the costs are always a factor and the new law that will take effect on cases filed after this summer allows the court to allow fees to the winning party and you will need to be certian if you want add this to risk of trial.
Only If and until you and I sign an Agreement for Legal Services, I am not your attorney. These answers are provided for informational and/or novelty purposes
Land Use / Zoning Attorney
In Washington State, a property owner may obtain title to adjoining property via "adverse possession." In general, to prove adverse possession, a claimant must demonstrate that they possessed the disputed area in a manner that was: (1) exclusive; (2) open and notorious; (3) hostile; and (4) actual and uninterrupted for a period of 10 years. The 10-year period can be reduced to 7 years in some limited circumstances. Also, some of these elements may operate very different in practice than their terms imply. For example, the term "hostile" typically means nothing more than possession without the permission of the title owner.
The application of these elements is very fact specific and will depend upon your particular circumstances. In fact, many appellate decisions regarding adverse possession may have seemingly similar facts, but reach different conclusions. For these reasons, I too suggest that you speak to an attorney regarding this matter. He or she will want to know how long the fence has been in the same location, whether permission was obtained from the church for the original installation of the fence, among other potentially critical facts. Moreover, in addition to adverse possession, the attorney may be able to determine if other legal doctrines might apply that could also be the basis for adjusting the boundary line, including the doctrines of estoppel in pais, parol agreement, and recognition and acquiescence, among others.
The law of adverse possession has been largely unchanged in Washington for decades. However, as correctly alluded to by Mr. Alexander, the Washington State Legislature recently enacted ESHB 1026 (codified in RCW 7.28.083), which affords the judge in an adverse possession case the discretion to make an award of attorneys fees to the prevailing party. Such fees were not previously recoverable in most cases. Also, in those cases where the claimant is successful, the new statute also affords the judge the discretion to determine if the claimant should reimburse the defendant for back taxes or assessments levied on the disputed property during the period of adverse possession. This new law will apply to all cases for adverse possession filed on or after July 1, 2012. Accordingly, as a result of this new statute, there may be certain advantages and disadvantages related to the timing of the filing of a potential case that you may also want to discuss with any counsel that you may retain.
This answer is provided for informational purposes only and should not be relied upon or construed as legal advice or legal opinion. The answer is based upon limited facts and general principles of law, both of which are subject to change and, therefore, may materially affect any answer given. You should contact an attorney to obtain advice with respect to your particular issue or problem. This answer does not create an attorney-client relationship, nor does it create any kind of legal relationship, duty, or privilege. This attorney is licensed only in the State of Washington.
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