Boundary Dispute Lawsuits

You don't ever want to be in a boundary dispute if you can avoid it. Inevitably, emotions run high and things may escalate out of control before you know it.

A boundary dispute can be particularly ugly if it is in your own backyard. It's tough to wake up every morning and be reminded of the dispute when you look out the window, especially if it's costing you a lot of money.

By all means, try a diplomatic approach first. Even if you are on the receiving end of a complaint by a disgruntled neighbor, trying to work things out in a friendly manner is always the better part of valor.

Go See a Lawyer

If you simply can't work through a problem with your neighbor, go see a lawyer. Seeing a lawyer doesn't mean that you are going to sue any one right away. To the contrary, your lawyer will probably try to talk you out of it. Your lawyer will know how difficult it is for clients to pursue these matters.

At a minimum, your lawyer will help you come up with a strategy.This may include writing a demand letter, which will oftentimes solve the problem.

Neighborly No-No's

If the problem still can't be resolved, the best way to prevail will be to find a "smoking gun" that's a crippling blow to your neighbor's case. Examples would include:

• An improvement by your neighbor that clearly crosses over your property line.
• A failure by your neighbor to secure the necessary building permit(s) to make an improvement.
• An improvement that is made without getting prior approval from the appropriate parties (e.g., the planning commission or a homeowners association).
• An improvement that clearly violates state laws, local ordinances or other rules. Examples would include zoning restrictions or the covenants, conditions and restrictions (CC&Rs) of a homeowners association.
• An improvement or usage that is contrary to a restrictive covenant (e.g., a right-of-way or a covenant that "runs with the land").
• An action that is contrary to established usage (e.g., blocking a road on which there is a prescriptive easement).

Anticipate Your Neighbor's Defenses

Some of the defenses you may encounter are:

• Your facts are wrong or you just don't know what you are talking about. Don't ever assume that everyone is going to agree with your version of the facts.
• You neighbor acquired the property by adverse possession. The period of time required for adverse possession varies from state to state, but it may be as short as 5 years. Additional requirements are that there be continuous possession for this period, that it be openly apparent and adverse to your claim of ownership, and that your neighbor pays taxes on the property.
• Your neighbor has acquired a prescriptive easement to continue to come across your property in a manner consistent with historical uses. This is essentially the same thing as adverse possession except that it is not necessary for someone to pay your taxes in order to acquire an easement by prescription.
• You have "unclean hands," meaning you are just as much at fault for the problem as your neighbor.
• You waited too long to raise the issue so the statute of limitations has run.
• You consented to the use.

When you first meeting with your lawyer, be prepared to discuss these points candidly. You will also have a leg up on your problem if you have copies of the referenced documents that you can take to this meeting.

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