If you believe that your neighbor is encroaching on your property, the place to start is with your deed. Take your deed to a land surveyor or civil engineer and have that person create a survey of your property. If you get into a dispute about boundaries, the court will start by finding the line described in the deeds. That line will be presumed to be the boundary line between the properties. (Occasionally, the deeds for adjoining properties will not be the same. If that is the case, it adds another layer of complexity to the matter.)
Although the court will presume that the line described in the deed is correct, there are ways to overcome a deed line. The most common is called boundary by acquiescence. In order to prove a boundary by acquiescence, a party must prove four elements:
• The dispute must be between adjoining properties. This element is obvious, and we are not aware of any case in which this was an issue. It’s hard to see how you can have a boundary dispute if the properties don’t share a boundary.
• There must be a visible line between the properties. The most common kind of visible line is a fence, but a party can claim any kind of visible line as a boundary. Some examples include roads, paths and even lines of trees.
• The parties must have acquiesced in the line as the boundary. This is the element of a boundary by acquiescence which is most often contested. The party opposing the boundary by acquiescence can claim that he was aware of the line, but never acquiesced in the line as a boundary. In order to resolve this issue, the court will concentrate on what the parties did more than what they claim to have thought. For instance, if one party can show that the fence served a purpose other than to mark the boundary (such as containing livestock), that may count against the claim of a boundary by acquiescence. In addition, evidence that the parties discussed the fence and whether it was on the boundary line will also influence the court’s decision.
• The acquiescence must have continued for more than 20 years. The most important part of this element is that the courts mean 20 years. Getting close to 20 years is not sufficient—the fence or other line must have been in place for at least 20 years.
If the party claiming boundary by acquiescence can prove all of these elements, the visible line between the properties becomes the boundary line, and that line takes precedence over the line described in the deeds.
If you are involved in a boundary dispute, if believe that you have a claim for boundary by acquiescence, or if a neighbor is making such a claim against you, call us today.