Are you sure your fence is on your property?
September 2016 | William J. Monaco, Esq.The notion of “Adverse Possession” scares (or bores) the life out of the average law school student – but it’s a concept that all home owners should become educated about.
In general, it is a legal concept under which someone may gain a valid and legal claim to a portion of your property under the right conditions. This article won’t get into an explanation of specific elements of an Adverse Possession claim (which include the claimant’s use of the subject property in an “open”, “notorious” and “continuous” manner, often for a 10-year period); however, we will be discussing an everyday situation that many of us do not even know we may face until it’s too late – the placement of a fence!
If you don’t take great care to ensure that a fence is on your own property line when one is put up, you can inadvertently create a potential problem for yourself known as an “out of possession” issue.
Simply put, this is when a person erects that fence inside their own property line and essentially cuts off a strip of their own land. Believe it or not, this cutting off of that strip of land could give rise to a claim of ownership by your neighboring land owner.
This problem may continue for years (or even longer) without either landowner ever knowing it. Suffice it to say, the first time you discover this issue may be when you go to sell your property and the purchaser’s title company uncovers it during their survey inspection of the property.
When it is discovered at that time, it could very well be an impediment to your closing – unless you get an affidavit from your neighbor that he or she makes no claim to that strip of land. However, we all know that we cannot necessarily count on our neighbors to do that.
So if you have plans to erect a fence, make sure you do not cut off a portion of your own property. If you have a fence already, it is a good idea to check the line against your survey to determine if you have created an “out of possession” situation.
If you discover that you have done so, please contact your Legal Service Plan’s National Legal Office attorneys to discuss what steps should be taken to remedy this and avoid an issue in the future.
In general, it is a legal concept under which someone may gain a valid and legal claim to a portion of your property under the right conditions. This article won’t get into an explanation of specific elements of an Adverse Possession claim (which include the claimant’s use of the subject property in an “open”, “notorious” and “continuous” manner, often for a 10-year period); however, we will be discussing an everyday situation that many of us do not even know we may face until it’s too late – the placement of a fence!
If you don’t take great care to ensure that a fence is on your own property line when one is put up, you can inadvertently create a potential problem for yourself known as an “out of possession” issue.
Simply put, this is when a person erects that fence inside their own property line and essentially cuts off a strip of their own land. Believe it or not, this cutting off of that strip of land could give rise to a claim of ownership by your neighboring land owner.
This problem may continue for years (or even longer) without either landowner ever knowing it. Suffice it to say, the first time you discover this issue may be when you go to sell your property and the purchaser’s title company uncovers it during their survey inspection of the property.
When it is discovered at that time, it could very well be an impediment to your closing – unless you get an affidavit from your neighbor that he or she makes no claim to that strip of land. However, we all know that we cannot necessarily count on our neighbors to do that.
So if you have plans to erect a fence, make sure you do not cut off a portion of your own property. If you have a fence already, it is a good idea to check the line against your survey to determine if you have created an “out of possession” situation.
If you discover that you have done so, please contact your Legal Service Plan’s National Legal Office attorneys to discuss what steps should be taken to remedy this and avoid an issue in the future.