Real estate boundaries are perceived to be inviolable. However, nothing will test this perception better than when a physical barrier (fence) is constructed by a neighboring party over a property line.
The construction of an unauthorized fence across a homeowner’s or investor’s property line represents a serious violation of their rights in the form of an illegal invasion of private property space. As with all other types of violations of these rights, if left unresolved, the encroaching fence may result in the loss of clarity regarding the status of your deed, the diminishment in the value of your land, and ultimately could result in the loss of ownership through adverse possession laws.
A successful resolution of a boundary dispute involves a delicate balance of diplomatic interaction, neutral factual information about real estate values, and knowledge of real estate law.
Defining Property Encroachment vs. Trespassing
While many people use the words trespassing and encroachment interchangeably when discussing their neighbor’s behavior, there is a clear distinction in property law. A trespasser is typically someone who has temporarily crossed into another person’s yard (i.e., walked through it). An encroacher is someone who is permanently crossing into another person’s land by building something on that other person’s property.
If a neighbor puts up a fence, installs a driveway made of concrete, or builds a shed and places it one inch inside the owner’s property line, he/she/they have committed an encroachment. Immediately upon doing so, a cloud is placed on the owner’s asset; this means if the owner were to try to sell his/her house which has been impacted by an encroachment, savvy real estate buyers and/or title companies will be aware of the issue, likely stopping the sale until the property lines have been surveyed, marked and verified.
Verify the Encroachment with an Official Survey
Before you initiate communication with your neighbor or a lawyer regarding a boundary issue, it’s essential to confirm your property line boundaries with no doubt. Indications of potential boundaries (i.e., older trees, an already built retaining wall, etc.) do not equate to being established boundaries.
Your very first action should always be to employ a licensed and qualified land surveyor to perform a field boundary survey. A licensed surveyor will find the original metal stakes and/or stones embedded into the earth from prior surveys, measure all sides of your property based upon your recorded deed information, and provide a graphic representation illustrating the actual placement of the disputed fence against these lines.
According to Keith Sant, founder & CEO at Kind House Buyers, “Documentation supersedes assumption(s) in all real estate transactions. All investors/homeowners must come to understand that a boundary dispute can never be resolved by what you think is true. You will need a current stake survey performed by a certified land surveyor. This document is the only means of obtaining definitive evidence to pursue negotiation with your neighbor about the placement of your shared fence, or when purchasing/evaluating multi-family assets.”
The Danger of Inaction: Adverse Possession and Prescriptive Easements
The decision to ignore a misplaced fence can be an unsafe choice because there are laws (legal doctrines) called “adverse possession.” These laws provide the opportunity for a person who has been on another person’s land without permission or paying rent in some form to receive the title to that other person’s land after being on it openly, without interruption, for an amount of time specified by statute; the length of time varies greatly depending on where you live in this country.
For example, if you have done nothing about a neighbor’s fence that is located three feet into your yard for fifteen years, your neighbor could bring a lawsuit against you to claim ownership of those three feet. Your neighbor could also obtain a prescriptive easement, a legal entitlement to use your property permanently even though he/she does not own it.
The Aesthetic and Market Value Dilemma
A fence that is invading a neighbor’s land can do much more than alter the boundaries on a deed; it can discontinue the beauty, curb appeal, and future sale price of a home. It would be especially important to consider this when one lives near to other homes with a history, or there are very small lots with great style and design for their neighborhood.
When a neighbor builds a fence that is poorly designed, uninviting, or not compliant to the building codes then the buyer will see an unpleasantness in the home and surrounding area before he sees the property lines on a survey map.
Robin DeCapua, Owner of Mad Mod Home explains, “The fence you build around your home is what provides the visual separation and framework of your outdoor living space. When you have a neighbor who puts up a fence that steals some of your square footage as well as throws off the balance of your whole yard due to the improper placement of the fence, you lose the beautiful architectural symmetries of your yard. Also if you live in a community of mid-century modern homes and/or homes that were put together by a designer who has created a sense of continuity and flow from inside to outside, a jarring, misplaced fence may ruin the indoor-outdoor flow and leave a terrible first impression on the prospectives buyers.”
Initiate Diplomatic and Direct Dialogue
After obtaining a certified map showing where the encroachment lies, it’s time for polite communication. Most people are unaware they have crossed property boundaries. This is usually due to an old map that was inaccurate, a contractor who gave incorrect information about the location of the boundary line, or simply “guessing”.
You should speak politely and show your neighbor a copy of the certified map. Point out the differences in your respective maps. Be prepared to assist your neighbor by moving some fence sections or provide a reasonable amount of time to have a contractor correct the mistake. Keep records of your interactions, as this may be important if the issue escalates at a later date.
Formal Legal Remedies and Property Notices
If an informal discussion does not resolve the issue at hand, it is time to take your dispute formally through the use of formal, written notice. A formal demand letter from a Real Estate Attorney will typically detail the factual basis of the survey, specify the legal violation(s) as well as provide a specific deadline by which the offending party must either remove/relocate the encroachment.
According to Catherine Greene, Legal Assistant with Berke Weiss Law: “If informal discussions do not work in resolving the matter at-hand; it is very important to formalize the dispute to protect your rights. Often times, a structured Demand Letter is what compels a recalcitrant neighbor to obtain their own legal counsel, and come to the realization that their stance on the matter is unworkable. If litigation ultimately becomes necessary, a Quiet Title Action can be filed; providing a Court Order declaring ownership, thereby definitively resolving the boundary question for all future sales and/or transactions.”
Practical Real Estate Solutions for Landlords and Flippers
The time and cost of legal battles involving fences for flipping houses and/or rentals are usually not worth the potential investment for many real estate investors. A major factor to consider when weighing the cost of litigation against losing a portion of land or alternative dispute resolution options is time (money) and the cost of holding.
Depending upon local zoning regulations regarding property setbacks and/or minimum lot sizes, selling the small piece of land at issue to the neighbor for a fair market value could be a financially smart decision. Likewise, if both parties agree, dividing the cost of relocating the fence to its proper location would likely be less expensive than paying thousands of dollars in attorneys’ fees and waiting out the potentially months-long process of litigating and then implementing an order from a judge.
Mike Otranto, Founder of Wake County Home Buyers comments on how he views these issues; “When I view the issues related to boundary disputes as an investor I do so with a singular focus on being able to produce revenue for me and my partners. When there is a situation where we are fighting for two inches of dirt at a cost of $5,000 to our lawyers, when this will not increase our cash flow from renting our home(s), nor will it improve our ability to resell them, I don’t see much benefit. From what I’ve seen, providing a reasonable financial solution quickly to resolve the issue, or drafting a written encroachment agreement which clearly states who has access to each party’s property provides us with the opportunity to move forward without having our capital tied up in litigation.”
Understanding Municipal Violations and Insurance Protections
Beyond being a source of civil real estate lawsuits, constructing a fence on top of a property line also often violates your city’s local ordinances. Typically, municipalities will require specific permits, as well as enforceable setbacks when installing fences. When your neighbor constructs a fence by not having acquired proper permits or ignoring these local setback requirements, they could be subject to fines from the code enforcement officer and therefore be required to remove this structure prior to you ever having filed a private lawsuit against them.
In addition, property owners need to review their insurance. The potential exists for property owners to miss additional insurance issues related to border line disputes. Evan Tunis, president of Florida Healthcare Insurance says, “If an injury occur due to an encroaching fence on your legally defined boundaries, it is likely going to be difficult to determine which party’s homeowner’s liability insurance covers the injury. Additionally, if you have an extended coverage policy under your title insurance, filing a claim early in the dispute process can assist with paying for the cost of fixing the defective boundary.”
Summary Action Plan for Homeowners
When a neighbor’s fence crosses the line, protecting your investment requires proactive, legally sound steps:
- Secure a Certified Land Survey: Obtain definitive proof from a licensed professional.
- Review Your Title Policy: Determine if boundary insurance or title protections apply to your situation.
- Attempt Informal Mediation: Present the survey data to your neighbor calmly to find a mutual solution.
- Issue a Formal Demand Letter: Use legal counsel to establish a paper trail and clear timeline if verbal discussions fail.
- Execute a Binding Agreement: Solidify any compromises with a recorded encroachment agreement or quiet title action to permanently protect your deed.