When Fences Don’t Make Good Neighbors
Whether you own a house, an orchard or a shopping mall, you have neighbors. If you’re like the rest of us, you want to have good neighbors and you want to be a good neighbor. But, even with the best of intentions, conflicts between neighbors can arise.
When conflicts arise, a basic understanding of a few legal principles may be the difference between a quick amicable resolution and years of litigation, which can be expensive and stressful.
First, it is important to keep your conflict in proper context. You may be justifiably upset that your neighbor’s fence encroaches a few inches or feet onto your property or that your neighbor has restricted access to your property by placing boulders on your shared driveway. After all, private property ownership is a fundamental tenet of our American democracy. But before you engage in scorched earth litigation to exact revenge, you would be wise to remember that they will still be your neighbor after the lawsuit ends.
After placing the issues in their proper context, you should document the issues through photographs or videos that show the impact on your property, develop an idea of what a reasonable resolution would be and consider what you are willing to spend to reach your desired outcome. Once you’ve thought about the issues and solutions, try having a friendly conversation with your neighbor that outlines your concerns and a proposed solution. You might be surprised, your neighbor might be willing to resolve the issues on the spot.
If that conversation doesn’t resolve your concerns, it is advisable to consult an attorney. Your attorney will help you understand your rights and the legal remedies available to you. Frequently, a letter from an attorney outlining the applicable law is enough to settle a conflict between neighbors. However, sometimes neighbors reach an impasse and litigation is necessary to resolve the conflict.
In both commercial and residential contexts, two of the most common boundary conflicts we see are from either shared access or an encroachment over property lines. For example, in a residential context maybe your neighbor’s fence or driveway crosses over onto your property by two feet or their shed is three feet over the property line. In a commercial context, maybe you have shared driveway that encroaches onto your neighbor’s property but you do not have a formal written agreement. If you think there is an encroachment onto your property, you should have a surveyor confirm the boundary line location. If the survey confirms an encroachment, that doesn’t necessarily guarantee resolution. If your neighbor has exclusively used a portion of your property for more than 10 years – and the use was uninterrupted, not concealed or hidden and without permission – the doctrine of adverse possession or prescriptive easement may allow your neighbor to assert ownership of the land.
Once your surveyor confirms the encroachment you have three general options: 1) do nothing; 2) grant permission; or 3) challenge the encroachment. If you choose to do nothing, you run the risk that the encroachment, if it has not done so already, will ripen into prescriptive ownership by your neighbor.
If you grant permission and the encroachment has not yet ripened into a prescriptive claim, your permission will suspend the ripening of the prescriptive period. Note, however, the permission should be express, written and acknowledged by your neighbor so it is best to consult with a knowledgeable attorney when pursuing a permissive agreement on an encroachment. Lastly, if you choose to challenge the encroachment, or prevent it from ripening into a prescriptive claim, you will want to consult an attorney who is knowledgeable in the laws of prescriptive easements, adverse possession, trespass and quiet title actions.
Whatever path your neighbor dispute follows, stay calm, be reasonable and remain realistic. If your neighbor won’t work with you to resolve the issues and litigation seems like your only remedy, ask yourself whether it is worth the stress and hassle. If you decide it is, hire a good attorney.