This Week's Q & A

Q: My property, which I purchased about four years ago, is bordered by chain link fences on both sides. In reviewing some paperwork from my closing, I noticed that the plot plan seems to show that my property line on one side extends about three feet beyond the neighbor’s fence. That abutting property is being sold this month. What’s the best way for me to reclaim this footage? I don’t want to offend the new owners or get the relationship off on the wrong foot. On the other hand, I only have about two feet of space between my house and the fence, which makes it difficult to cut the grass in that area. Would an agreement between prior owners of my house and the neighboring property have any impact on the current situation? Does the fact that the fence has been there for so many years affect my rights to the property I’m trying to reclaim?

A: The key question is whether the current owner of the adjacent property can claim that strip of land by “adverse possession.” That would be the case if the existing owner, and/or prior owners have used the property “in open and notorious claim of title” continuously for at least 20 years, without objection from you and prior owners, and without your permission.

The chain of that claim is continuous; it’s not broken by a change in ownership. So if the fence has been in place for at least 20 years, the current owners may have an adverse possession claim, even if they have owned the property for only 10 of those 20 years. And they can transfer their claim to the new owners.

If there is no adverse possession claim, then you can (and probably should) try to assert your ownership of that strip of land now. The first step is to be sure the property really is yours by having the site surveyed. If the survey confirms your ownership, the best time to raise the issue is now; you’ll never have more leverage, or a better chance of persuading the seller or buyer to resolve the problem quickly than when the property is about to be sold. The seller may not care about the fence at this point, or may not want to care about it, but the buyer probably will care a lot and presumably will want some resolution before the closing.