Do good fences make good neighbors?
Minnesotans love hanging out with their neighbors, grilling, watching their kids play together or just sharing a good story. Imagine this suddenly ending because one of the neighbors wants to put up a fence, a retaining wall, or even a garden, and they have trouble deciding where to do it.
These neighborhood disputes are more common than one would think. I watched one of my neighbors repeatedly pull a survey stake up from a spot about a foot inside his fence. Each time his neighbor's surveyor put it in, he would promptly pull it up and send it back over the fence. In fact, when I purchased my home with my wife, we were under the impression that the yard ended where the landscaping ended, only to find upon inspection that the survey markers were about a foot inside of the landscaping.
Some of these issues occur because of historic errors in surveying. Washington County, where I practice, is full of examples of inaccurate surveys. Another reason that these issues occur is that people either don't pay attention to, can't find, or ignore the location of the boundary.
So the question is, when these issues come up, what should be done about it. The answer to the question depends on a lot of different factors. For example, would the loss of the property affect the homeowner's ability to put on an addition, will semi permanent structures like fences and retaining walls need to be moved, and not lease, how will it affect the homeowner's relationship with his or her neighbors.
One thing that homeowners should know is that Minnesota, and many other jurisdictions, recognize a legal concept called adverse possession (and a lesser known concept called practical location of boundaries). The rule in Minnesota is that if a person occupies a piece of land for 15 years, and meets certain legal requirements, that the land becomes the property of the occupying person. In other words, if you put your retaining wall a foot onto your neighbor's property, garden it for a period of 15 years, and otherwise meet Minnesota's legal requirements, ownership of the occupied portion of the property will transfer to the occupying neighbor.
The idea behind adverse possession is that once property is occupied or used in a certain way for a great enough period of time, the parties come to rely on the use as an indication of where the boundary lies.
In Minnesota the adverse possession statute is really a statute of limitations. Normally if you place your garden on your neighbor’s yard, they have the right to sue you for trespass or ejectment. But the statute says that if that neighbor does not exercise the right to eject the neighbor within 15 years, that the right will be lost. In other words, if you sit on the right to correct the boundary dispute for 15 years, your neighbor's right to rely on the consistent use will now outweigh your right to eject them, and the boundary will change as a matter of law.
Even after property has been adversely possessed, disputes are common. For example, the neighbors may dispute whether 15 years have passed, or whether all of the legal requirements have been met. Even if there is no dispute (which is rare) legal assistance will be necessary to clear title to the disputed area. For these and other reasons, it is important to consult an attorney as quickly as possible if you are involved in a boundary dispute. Whether you are claiming a right to your neighbor’s property or trying to protect what you already have, the timing of contacting an attorney and commencing an action can make a big difference.