Property line dispute with neighbor.

San Jose, CA · Member since 2016 · 15 posts · 1 vote

Ok here we go, my mom has had her house for 25 years. She resides in California. The fence is and has been on the neighbors property by a couple feet the whole time she has lived there. The lady living there for the last six years just realized this and now she wants to put the fence back where it belongs. This would make my moms addition that the house came with to close to the fence line. Is there anything thing my mom can do to stop this or is she out of luck?

Thanks in advance for your time.

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Lynn McGeein

Real Estate Agent · Virginia Beach, VA · Member since 2012 · 2k+ posts · 1k+ votes

You need to look at property rights, adverse possession, easement by prescription laws as since the fence has been there that long and she and previous owner have been maintaining that property for as long as they have, they may already have rights to it, just need to declare it legally before the neighbor does anything. It all depends on the state and local laws, so a good attorney familiar with title issues would be very beneficial at this stage.

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Dawn BrenengenBusiness Member
Moderator
Real Estate Broker · Raleigh, NC · Member since 2014 · 2k+ posts · 1k+ votes
7y
@Luis Felix Probably out of luck. Does the neighbor have a survey? Does your mom have a survey?
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Luis Felix
OP
San Jose, CA · Member since 2016 · 15 posts · 1 vote
7y
Yes the neighbor had a survey done recently. Also the last owner had a survey done years ago with the same conclusion.
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Theresa HarrisPro Member
Member since 2019 · 15k+ posts · 11k+ votes
7y
What do you mean too close to the fence? Presumably the fence won't be touching the house and there will still be a few feet between the fence and house.
When the addition was built, the city should have looked at how close it was to the property line, not to the fence. If they don't need a permit to move the fence, then just let them move it (I'd also let the neighbour pay to move it since this is a make work project rather than replacing a fence that needs to be replaced) and leave it at that. It has been there for 25+ years and there are presumably photos to document it.
Make sure you get a second survey done to confirm that the first person did it correctly.
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Steve Hall
Rental Property Investor · TX · Member since 2019 · 303 posts · 364 votes
7y
@Luis Felix
If the fence is on the neighbor's property, then the neighbor can do whatever she wants with the fence, because it's HER fence. If your mom likes the fence, then she should be happy the neighbor is moving it and not removing it.
If the neighbor is complaining that the fence is your moms, and that your mom needs to move it back onto your mom's property, then you're mom just says "That's your property, that's your fence."
The only issue is, if the neighbor knows that your mom likes have a fence between the yards, the neighbor could say, "Move it or lose it." Then your mom has a decision to make!
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Lynn McGeein
Real Estate Agent · Virginia Beach, VA · Member since 2012 · 2k+ posts · 1k+ votes
7y
You need to look at property rights, adverse possession, easement by prescription laws as since the fence has been there that long and she and previous owner have been maintaining that property for as long as they have, they may already have rights to it, just need to declare it legally before the neighbor does anything. It all depends on the state and local laws, so a good attorney familiar with title issues would be very beneficial at this stage.
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Adam Lee
Member since 2018 · 9 posts · 4 votes
7y
Easement by prescription. I may be wrong but from what I recall during my R.E. training in Pa is after 7 years of maintaining a property it becomes yours. I'm not sure if it is a just Pa or federal. But now you can research it.
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Jay HinrichsBusiness Member
Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
7y
Originally posted by @Lynn McGeein:

You need to look at property rights, adverse possession, easement by prescription laws as since the fence has been there that long and she and previous owner have been maintaining that property for as long as they have, they may already have rights to it, just need to declare it legally before the neighbor does anything. It all depends on the state and local laws, so a good attorney familiar with title issues would be very beneficial at this stage.
all the above sounds good but wont work for this.. neighbor can just move the fence at their cost if they wish.. NO need to spend more than the fence costs.. the house is there already.. etc..
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Luis Felix
OP
San Jose, CA · Member since 2016 · 15 posts · 1 vote
7y
@Lynn McGeein
Thanks Lynn, this was very helpful.
Looks like my mom can claim the land according to California law. Now where would I find out how this will effect the property taxes?
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Thomas S.
Member since 2016 · 13k+ posts · 12k+ votes
7y
I don't see an issue, It's her land let the neighbour put the fence on the proper property line. I don't see why people get into pi**ing matches over something that does not belong to them. Little wonder neighbours do not get along. Time to grow up and respect the rights of others. "Looks like my mom can claim the land according to California law." Pathetic.
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Luis Felix
OP
San Jose, CA · Member since 2016 · 15 posts · 1 vote
7y
@Thomas S.
Easy there big guy, if the fence line moves back to where it was 50 years ago. Her legal addition that was on the house when she bought it turns into a illegal addition based on the fire codes stating structures needing to maintain 3 ft from a fence. This issue is stressing my mom out.
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James Mc Ree
Rental Property Investor · Malvern, PA · Member since 2016 · 1k+ posts · 934 votes
7y
Your Mom could offer to buy a 2 foot easement from the neighbor to keep the fence where it is and not cause a problem with the addition. That might satisfy the neighbor and keep things as they are for your Mom.
It doesn't seem reasonable for the neighbor to take no action and no compensation while your Mom starts talking about adverse possession and taking the land. They will hate each other soon, if they don't already, if Mom goes that route.
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Jay HinrichsBusiness Member
Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
7y
Originally posted by @Thomas S.:

I don't see an issue, It's her land let the neighbour put the fence on the proper property line.
I don't see why people get into pi**ing matches over something that does not belong to them. Little wonder neighbours do not get along.
Time to grow up and respect the rights of others.
"Looks like my mom can claim the land according to California law."
Pathetic.
this is a pipe dream there is more to the test than just having a fence in one spot.. and agree its just mind blowing how people get about their property lines LOL
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Jay HinrichsBusiness Member
Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
7y
Originally posted by @Luis Felix:

@Thomas S.
Easy there big guy, if the fence line moves back to where it was 50 years ago. Her legal addition that was on the house when she bought it turns into a illegal addition based on the fire codes stating structures needing to maintain 3 ft from a fence. This issue is stressing my mom out.
that's the get a building permit not existing.. or 50 year old situation.. its called being grandfathered.
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Justin Tahilramani
Rental Property Investor · Fayetteville, NC · Member since 2014 · 884 posts · 670 votes
7y
You need an attorney.
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Luis Felix
OP
San Jose, CA · Member since 2016 · 15 posts · 1 vote
7y
@Jay Hinrichs
Well that’s good to know , I’m just trying to find out what my moms options are at this point. Ultimately it’s her decision. I also agree with @Thomas S. this is petty. The neighbor is going to be selling house anyway.
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Jay HinrichsBusiness Member
Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
7y
Originally posted by @Luis Felix:

@Jay Hinrichs
Well that’s good to know , I’m just trying to find out what my moms options are at this point. Ultimately it’s her decision. I also agree with @Thomas S. this is petty. The neighbor is going to be selling house anyway.
the reality is the your moms house is grandfathered in.. the only issue would be if it burnt down.. you would then have to rebuild based on the set backs as dictated in the zoning code.. so its really a non event for your mother..
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Davido Davido
Rental Property Investor · Olympia, WA · Member since 2012 · 543 posts · 311 votes
7y
had it just right. Your mom's 25 years of using the property with the fence where it is at means that she now has a lawful claim to the property on her side of the fence. http://findhoalaw.com/code-of-civil-procedure-section-325-adverse-possession/
Your mother is not required to do anything. I would print out the California Statute on Adverse Possession, take it to the neighbor who wants the fence moved, and tell the neighbor that your mom now has a valid legal claim to the fence and all the property on her side of the fence so she will not be moving the fence.
However, if the neighbor got bold and attempted to move the fence your mom would need to file a law suit to stop the neighbor. But it sounds like a lawsuit may be the last thing that the neighbor wants -if the neighbor plans to sell soon.
It is also possible that the neighbor could file a suit against your mom and seek a court order to remove the fence, that would require your mom to defend herself in court by claiming the land under the California adverse possession statute.
Alternatively, you could advise the neighbor that your mom has the right to claim the property -but as a gesture of good faith, offer the neighbor an amount you feel appropriate in exchange for the neighbor deeding the disputed portion to your mom.
Maybe @Jay Hinrichs will share his reason for believing that your mom's claim of adverse possession "is a pipe dream", because under California law, your mom's claim to the property is solid and straight forward. California Adverse possession
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Jay HinrichsBusiness Member
Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
7y
Originally posted by @Davido Davido:

had it just right. Your mom's 25 years of using the property with the fence where it is at means that she now has a lawful claim to the property on her side of the fence. http://findhoalaw.com/code-of-civil-procedure-section-325-adverse-possession/
Your mother is not required to do anything. I would print out the California Statute on Adverse Possession, take it to the neighbor who wants the fence moved, and tell the neighbor that your mom now has a valid legal claim to the fence and all the property on her side of the fence so she will not be moving the fence.
However, if the neighbor got bold and attempted to move the fence your mom would need to file a law suit to stop the neighbor. But it sounds like a lawsuit may be the last thing that the neighbor wants -if the neighbor plans to sell soon.
It is also possible that the neighbor could file a suit against your mom and seek a court order to remove the fence, that would require your mom to defend herself in court by claiming the land under the California adverse possession statute.
Alternatively, you could advise the neighbor that your mom has the right to claim the property -but as a gesture of good faith, offer the neighbor an amount you feel appropriate in exchange for the neighbor deeding the disputed portion to your mom.
Maybe @Jay Hinrichs will share his reason for believing that your mom's claim of adverse possession "is a pipe dream", because under California law, your mom's claim to the property is solid and straight forward. California Adverse possession
because there is more than one test to make a successful claim you need to litigate it to clear your title and very few can hit all the itmes that need to be done to win these and 99.9% of people cant do it.
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Bryan S.
Rental Property Investor · CA · Member since 2018 · 225 posts · 180 votes
7y
@Luis Felix I looked into this in CA after a similar issue. I believe you’re right, but check with an attorney. Did the previous neighbor agree to this? Verbally? Written?
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Luis Felix
OP
San Jose, CA · Member since 2016 · 15 posts · 1 vote
7y
@Davido Davido
Thanks for your reply, lots of good stuff in there. I’m sure neither of the them want to spend money on lawyers. But it is starting to get a little ugly. The neighbor has even threatened to charge my mom back rent for the use of the land. Is that even possible ?
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Adam Lee
Member since 2018 · 9 posts · 4 votes
7y
From Google:
"In California, a user of land may establish a prescriptive easement by proving that his or her use of another's land was: (1) continuous and uninterrupted for five years; (2) open and notorious; and (3) hostile"
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Nick C.
Investor · Tampa, FL · Member since 2011 · 2k+ posts · 3k+ votes
7y
Back rent? No chance, I would not worry about that.
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Davido Davido
Rental Property Investor · Olympia, WA · Member since 2012 · 543 posts · 311 votes
7y
Originally posted by @Jay Hinrichs:

Originally posted by @Davido Davido:
had it just right. Your mom's 25 years of using the property with the fence where it is at means that she now has a lawful claim to the property on her side of the fence. http://findhoalaw.com/code-of-civil-procedure-section-325-adverse-possession/
Your mother is not required to do anything. I would print out the California Statute on Adverse Possession, take it to the neighbor who wants the fence moved, and tell the neighbor that your mom now has a valid legal claim to the fence and all the property on her side of the fence so she will not be moving the fence.
However, if the neighbor got bold and attempted to move the fence your mom would need to file a law suit to stop the neighbor. But it sounds like a lawsuit may be the last thing that the neighbor wants -if the neighbor plans to sell soon.
It is also possible that the neighbor could file a suit against your mom and seek a court order to remove the fence, that would require your mom to defend herself in court by claiming the land under the California adverse possession statute.
Alternatively, you could advise the neighbor that your mom has the right to claim the property -but as a gesture of good faith, offer the neighbor an amount you feel appropriate in exchange for the neighbor deeding the disputed portion to your mom.
Maybe @Jay Hinrichs will share his reason for believing that your mom's claim of adverse possession "is a pipe dream", because under California law, your mom's claim to the property is solid and straight forward. California Adverse possession
because there is more than one test to make a successful claim you need to litigate it to clear your title and very few can hit all the itmes that need to be done to win these and 99.9% of people cant do it.
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Mike CumbieBusiness Member
REALTOR® · Brockport, NY · Member since 2015 · 3k+ posts · 4k+ votes
7y
@Luis Felix,
It's just posturing between the two, the neighbor wants to sell her house and someone stuck a bug in her ear about those 2 feet. In my area that gets handled daily with "boundary line agreements". Long story short, the fence/barn/chicken coupe/driveway/basketball court etc, remains until it falls/burns etc. Once it has to be rebuilt they move it to where it belongs.
I would say 90% of the time when someone actually signs it, no money changes hands, they both smile and become good neighbors. A token offering like a bottle of whiskey or wine is usually appreciated. If it started getting hairy, I would simply say "Here is my lawyers number, feel free to contact them, have a good day". It is in both of their best interest to just get together on the same page now before either tries to sell. Make an agreement and sell it with the house.
I hold an opposing view about the neighbor being able to "just go chop the fence" up, especially if it had the required permits when it was built. So I guess my suggestion would be either they come to an agreement for some chump change or they both plan on spending a ton on lawyers to drag it out.
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Luis Felix
OP
San Jose, CA · Member since 2016 · 15 posts · 1 vote
7y
@Mike Cumbie
Thanks Mike!
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