Neighbor's Fence Is On Your Property - Adverse Possession Michael T. Sawyier
Q.
My neighbor has a fence which is on my property according to a survey completed when I bought the property. How do I go about getting him to remove it? Talking to him has not gotten the job done.
-- Charley
A.
If talking to your neighbor about removing the
fence has not yielded any results, and neither you
nor your neighbor are willing to compromise, there
are a few things you can do to remedy the
intentional intrusion upon your property. You can
forcibly remove the fence yourself, or you can sue
for trespass. If your neighbor¿s fence has been on
the property for over 10 years, he may have a
defense to a trespass suit by claiming a right to the
property on an adverse possession theory.
Adverse possession occurs when an individual
uses property as his own for a very long time. After
a statutory number of years, the property legally
becomes that of the adverse possessor. In order for
adverse possession to be valid, the use of the land
must be open and notorious, adverse to the real
legal owner's interest and without the consent, and
it must be continuously used for a statutory
number of years. Many states differ on what the
statutory requirement is in order for adverse
possession to qualify, but in Indiana possession
must occur for 10 continuous years.
If you are looking for a more peaceable
solution than one of the solutions mentioned
above, you can talk to your neighbor about signing
a recordable declaration license releasing interest
in the fence. The license can be terminable after
notice is given to the neighbor and can even include
provisions requiring the neighbor to keep the fence
in a certain condition. This option is a compromise
between you and the neighbor, allowing the
neighbor to keep the fence where it is on the
condition that a license signed by the neighbor can
be filed which declares the property rightfully yours
and thereby prevents any future adverse possession
issues which may later arise.
