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Every year my neighbor’s garden gets a little bigger, crossing onto my property. I was fine with it until he put a fence around it including the portion on my property. Now, I’m hopping mad. What can I do about my neighbor building a fence over part of my property?
Words by Nelson P. Miller
Tell him to take it down, and if he doesn’t, then call your lawyer.
Boundary disputes between neighbors are actually relatively common. Property lines get blurred. One neighbor thinks the line is here, while the other neighbor thinks the line is there. Most of the time, it makes no difference. As long as everyone is getting along, and both share use of the property, then the boundary doesn’t much matter.
Problems usually arise when one neighbor constructs a building, fence, deck, or driveway over what the other neighbor thought was the property line. Encroachments like these can reduce your property’s effective size and value, and interfere with your private use and enjoyment.
At that point, you should have a surveyor confirm the correct boundary line. Old boundary markers are not necessarily reliable. A proper survey of the boundary line is what you need. Because your issue involves only a single boundary and no other parts of your property, you do not need a full survey.
A boundary survey should be relatively inexpensive. You may or may not have had a survey done when you bought your property. Property legal descriptions, called metes and bounds descriptions, on your property deed recorded with the register of deeds determine the boundaries of your property. You need a surveyor to turn the legal description given in distances, angles, and compass directions into stakes in the ground marking your actual boundary line.
If you and your neighbor cannot agree about the fence after the surveyor establishes the correct boundary line, then call your lawyer. Avoid self-help. Taking down your neighbor’s fence may lead to an argument, fight, and retribution. Keep the peace. You don’t want to end up in jail on criminal assault charges. You could also end up liable in damages if your neighbor had the correct boundary after all, and you destroyed your neighbor’s proper fence.
Generally, if you own the property, then you have the right to exclude others (including neighbors) from its use. If you don’t want your neighbor gardening on your property, then you may certainly tell the neighbor not to do so, although don’t expect any future tomatoes or corn.
If the neighbor continues gardening on your property, then you may build a fence to discourage the trespass. If the neighbor destroys the fence and continues to trespass, then you may file a civil action for a court order to prevent the trespass. If the neighbor violates the order, then call the police who may arrest the neighbor, or return to court for a contempt sanction. At some point, your neighbor should realize that you are serious. Property laws put the public police power behind your enforcement efforts.
Easements can complicate boundary issues. An easement is a non-owners right to use an owner’s property. Easements can be either express or implied. An express easement is one that a deed or other document or agreement defines. Look at your deed, and you may see various easements. An implied easement is one that arises from the parties’ actions and circumstances.
Easements come in different types including for water, sewer, and other utility lines, hunting or fishing, or driveways or paths for access to other property. If you or the person who owned your property before you granted an easement to the owner of your neighbor’s land, then you may be stuck with it. Consult your lawyer.
If on the other hand, your neighbor has no express or implied easement, then you have one other concern to address. Property rights can also arise by what the law calls adverse possession. If your neighbor openly occupied your land without your consent for a long enough period, then the law of your state may recognize your neighbor’s ownership.
In some states, for instance, the period for adverse possession is 15 years. If you let the neighbor fence your land for that period, then you may lose title to that portion of your land.
So don’t rest on your property rights. Use them, or lose them. And you know what they say: “Good fences make for good neighbors.”
To read more from Nelson Miller, check out his book Top 100 Questions Friends & Family Ask a Lawyer on Amazon.
The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information.
