Property Line Issues – Good Fences Make Good Neighbors

January 16, 2017

“Good Fences Make Good Neighbors” – Robert Frost

By Clint Wilson and Kent Burton

If good fences make good neighbors, what happens when the fence you share with your neighbor has been constructed on your side of the property line depriving you of a portion of your property and allowing your neighbor exclusive use and access to a portion of your property?

This scenario often presents itself after a property owner (we’ll call this owner “NotSoHappy”) has a survey completed of her property, for whatever reason (e.g., remodeling, selling or purchasing the property), and the survey reveals that the good neighbor next door (we’ll call this neighbor “Encroacher”) has for years been using and benefiting from that portion of NotSoHappy’s property made available to him by the erroneously placed fence. NotSoHappy, who undoubtedly has been paying property taxes based on the legal description of the property, might feel that she is entitled to all of her property, including that portion being enjoyed by Encroacher on the other side of the fence (we’ll call this portion the “subject property”). More importantly, the implications in selling NotSoHappy’s property or building improvements near the property line are further complicated by the erroneously placed fence.

The first and logical step in this situation, after showing Encroacher the survey, would be for NotSoHappy to ask if the fence can be relocated to the actual property line. But what if Encroacher is not such a “good neighbor” and despite not having prior knowledge of the erroneous placement of the fence, adamantly refuses to relocate the fence and even threatens litigation if the fence is moved without his consent? To make matters more complicated, what if Encroacher asserts that he has spent a lot of time (in particular more than 5 years) and money improving his property, including the subject property. At this point, Encroacher and NotSoHappy both have compelling arguments, but what is the likely outcome if Encroacher and NotSoHappy resolve their dispute in court?

First, it is worth noting that there are various legal arguments that Encroacher might assert in hopes of retaining the right to use or possess the subject property, including adverse possession and the agreed boundary doctrine (both of which are not the subject of this article). However, adverse possession and the agreed boundary doctrine are not likely to apply in this particular situation or in general to a boundary line dispute arising from an erroneously placed fence. In addition to the reasons discussed below, adverse possession requires the adverse claimant to have paid property taxes on the subject property, which is rarely the case in a boundary line dispute as property taxes are based on the legal description for each property. With respect to the agreed boundary doctrine, the doctrine provides that a boundary may be established by agreement between coterminous landowners where the true location of the boundary is uncertain, which is rarely the case in developed areas where boundary lines are well defined. As such, the focus of this article will be on Encroacher’s ability to obtain a prescriptive easement or equitable easement over the subject property.

If NotSoHappy were to pursue an action at law against Encroacher (e.g., an action of declaratory relief, quiet title or trespass), Encroacher might seek a prescriptive easement for the continued use of the subject property. As way of background, an easement, in general, is the non-exclusive right to use another’s property for a specific use. While easements can be granted by a property owner to another (e.g., to an adjacent landowner for ingress and egress), an easement can also be acquired through prescription without the property owner’s consent. To establish the elements of a prescriptive easement, a claimant (i.e., the person claiming the easement) must show that the use of the subject property was (i) continuous and uninterrupted for the statutory period of five years, (ii) open and notorious; (iii) hostile to the true owner; and (iv) under claim of right. Without digressing into a discussion on the foregoing elements, if Encroacher can satisfy these elements, then he will have the right to the continued use of the subject property for the specific purpose for which he used the subject property during the 5-year period.

Without elaborating on whether Encroacher satisfies each element of a prescriptive easement, the courts have generally held that a claimant cannot obtain an exclusive prescriptive easement to use the property of another through encroachments or fences. Since Encroacher would have the exclusive right to use the subject property located on his side of the fence (as the fence would necessarily exclude NotSoHappy from the subject property), the effect of such an easement would be to effectively grant Encroacher fee title to the subject property. To this point, the courts have reasoned that when “the use of land becomes so comprehensive as to supply the equivalent of fee title ownership, and conveys an unlimited use of real property, it constitutes an estate and not an easement.” Mehdizadeh v. Mincer.

In these situations, courts draw a distinction between adverse possession, where one can obtain fee title to another’s property, and prescriptive easements that should only provide for the non-exclusive right to use another’s property for a specific use. Adverse possession, which includes many of the same elements used to establish an easement by prescription, also requires that claimant pay the property taxes on the property being adversely possessed, as noted above, which is rarely ever the case in a dispute over an erroneously placed fence. As such, adverse possession is very rarely is applicable to a boundary fence dispute.

To this point, the court in Mehdizadeh quoting an earlier decision in Silacci v. Abramson, reiterated, that “an exclusive easement is a very unusual interest in land. The notion of an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land, has no application to a simple backyard dispute. An easement, after all, is merely the right to use the land of another for a specific purpose—most often, the right to cross the land of another. An easement acquired by prescription is one acquired by adverse use for a certain period. An easement, however, is not an ownership interest, and certainly does not amount to a fee simple estate.”

In the dispute between NotSoHappy and Encroacher, if the fence is not relocated to the property line, then Encroacher’s exclusive use of the subject property would be the equivalent of a fee interest because the fence would effectively exclude NotSoHappy from the subject property. As such, Encroacher will not likely prevail under the prescriptive easement doctrine against NotSoHappy.

Alternatively, Encroacher might have more success in a court of equity (this is the same court, only claimant asks the judge to apply equitable principles rather than the rules of law). The dispute between NotSoHappy and Encroacher would be resolved in a court of equity if either party seeks an injunction against the other (e.g., NotSoHappy seeks to enjoin Encroacher from trespassing, or alternatively Encroacher seeks to enjoin NotSoHappy from exercising her self-help rights in relocating the fence). Once in a court of equity, the Court will have equitable powers (i.e., not necessarily bound by the rules of law) to determine whether an “equitable easement” would be just under the circumstances. The courts use the term “equitable easement” in reference to a judicially-created easement on equitable grounds when claimant (i.e., the encroacher seeking an easement) would not otherwise be entitled to an express or a prescriptive easement.

Encroacher might succeed in being awarded an equitable easement if he made expensive improvements to the subject property and the relative hardships between Encroacher and NotSoHappy “tip disproportionately” in favor of Encroacher. A court in equity balancing the hardships between the parties will consider whether (i) claimant used and improved an easement for a long period of time with an innocent belief that he or she had a right to use the easement, (ii) there would be irreparable harm if claimant could not continue to use the easement, and (iii) the property owner would suffer little harm from the further use of the easement by claimant. The court can then balance the equities by requiring claimant to pay the other property owner the fair market value of the property being encroached upon.

This was illustrated in Hirshfield v. Schwartz, which involved a boundary line dispute between two adjacent property owners in Bel-Air, California. In this case, claimant’s predecessor had constructed a swimming pool in the backyard and installed a fence. Over the years, claimant thought the fence marked the boundary, and caused further improvements to be constructed, including a koi pond, waterfall, stone deck, putting green and sand trap. However, after a survey was completed, it was determined that certain of claimant’s improvements encroached on the neighbor’s property, including a portion of the sand trap and utilities for the waterfall and pool.

In applying the relative hardship doctrine, the court in Hirshfield, denied the property owner’s request for an injunction to remove claimant’s encroachments, and instead granted claimant an equitable easement over a portion of the owner’s property. Moreover, the court ruled that the equitable easement would terminate upon the happening of certain events, and further ordered claimant to pay the fair market value of the property being encroached to the owner.

In the dispute between Encroacher and NotSoHappy,  Encroacher might have some success in a court of equity, however, it is important to emphasize that the court will start with the premise that Encroacher is the wrongdoer, and the hardships by granting the injunction against Encroacher must be greatly disproportionate to the hardship caused by the continuance of the encroachment, and this fact must clearly appear in the evidence provided by Encroacher. See Hirshfield v. Schwartz.

At the end of the day, Encroacher has the burden of proof to establish that (i) in an action at law, his right to the continued use of the subject property has ripened into an easement by prescription that does not provide for the exclusive use of the subject property, or (ii) in a court of equity, the relative hardship doctrine supports a finding of an equitable easement in his favor. Even then, a balancing of the equities will usually require that Encroacher pay the fair market value of the subject property to NotSoHappy. More likely than not, Encroacher would be wise to work amicably to resolve any dispute with NotSoHappy before incurring legal expenses and being labeled a bad neighbor.

Please Note: This document does not constitute legal advice. Please consult an attorney for legal advice on what to do in a particular situation.