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"Ask Your Attorney" Column

About Adverse Possession

Dear Counselor: A few years ago, my husband and I had come back from vacation to find that our neighbor had built a fence between our backyards. It looks nice, but he built it more than ten feet on our side of the lot line. We've asked him about it, but he said he couldn't do anything now -- that moving it would be too costly for him. We are wondering what to do. We've avoided the issue ever since, but are concerned about our property rights.

Dear Client: When clients come to us with this kind of a problem, we tell them that they are dealing with what lawyers call a case of "adverse possession". If you aren't careful, after a certain period of time goes by, you could legally lose your right to that part of your property that has been fenced in by your neighbor. Usually, that takes 20 years, but under some circumstances, it can be as little as 10 years. You could find out that title to that strip of property has passed to your neighbor, and you have lost your rights to make him move the fence! When dealing with a residential lot, losing land area like that could mean that your home is now sitting on a lot that is less in land area than the zoning ordinance requires, or that your home now technically is too close to your new lot line than what the zoning laws require. You need to stop worrying about being polite, and protect yourself. In may instances, a written agreement can be recorded that states that your neighbor realizes his fence encroaches on your property, but that you are permitting it for the time being -- subject to your future right to make him move it back. You can be a nice neighbor without losing your property rights. You need to talk to your lawyer right away.

Sincerely,

John L. Maier, Jr.

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