Lawyer has a legal question on property lines

[NeilV]

This is sort of a legal question, and I don't do property law. I know that GeorgeF is a surveryor and maybe he or somebody else can give me some input.

Unfortunately, this is also a long, boring story. My house is built on a slight slope that goes down towards the backyard. When the house was built, there was about a 12-16 foot space at the rear of the yard that was a utility easement, both for electrical lines and for trash service. Back in the day, trash collectors would basically work in an unpaved alley that separated the backyards. Back then, everybody's back fence stopped at the alley.

About 25-30 years ago, trash service moved to the front curb. At that time, the prior owners of this house(and most others) moved the back fences to the middle of the alley to expand their backyards.

The back fence of my yard is really the back neighbors' fence. It is a privacy fence that is now old and dilapidated and about ready to fall over. I have told them that I will share in the cost of the new fence.

They have offered to put the fence on their side of the alley. That would expand my backyard, but it would also move my backyard into what is really their property by about 6 to 8 feet. In other words, my back yard would now include what used to be the entire alley/easement. They want to do this is that, due to the slope of the land, there is basically a terrace in their yard, and they want the terrace to be the edge of their backyard (after this they will not have a ledge in their backyard). Also, they want less yard to take care of. I would be happy to expand the useful space in my backyard.

Which brings me, at long last, to my question. I am worried that if and when I or my neighbors sell the house the fence will be an encroachment and somebody will demand that it be torn down. To address that, could I simply draw up a document and file in land records indicating that the owner of my yard has an ongoing easement or license to use this part of the yard and maintain the fence?

Any other concerns/suggestions?

Thanks,

Neil

[dragonfly]

Is it possible that you and your neighbors can just come to an agreed upon price for them to sell you that small strip of property, then have the property re-surveyed and the changes documented in the legal records? That way, if one of you decides to sell, there's no problem with property boundaries being in question. Just a thought.

I believe that in some areas, there's also some kind of "rule" that says if you "claim" property by putting up fencing, and the legitimate property owner does not protest, then that property becomes yours after a certain period of time.

Aren't you glad I'm not a lawyer?:D

[NeilV]

DF,

Based on that, you'd make a fine lawyer, I reckon. You're spotting the legal issues and you've never been to law school.

As for a price, I think they would give me the land outright, and that may be what we ought to do. But that could raise my taxes and I would need a real survey.

A requirement for "adverse possession" is that the use be "open and hostile" (i.e. not hidden and without permission). This will be with permission, so that rule would not apply. (I haven't needed to know that since the bar exam in 1994).

I'm trying to do this on the cheap without causing a mess, and I'm trying to get a surveyor's take on whether I'm also being stupid.

Neil

[Hambone]

I was going to say what DF said. Except the "claim" part. I don't know about that. Not sure if they land survey everytime they sale a house. I doubt it. I had mine surveyed, but I asked and paid for it. So they might. (the new owners) Do you plan on keeping this house and passing it on to your kids. Or are you only going to be there only 5-10 years. If only the 5-10. I would just do it, and draw up simple paperwork between the two current parties. The long term. I would dig deep and cover your you know what. I could see it being a problem with the city if you live in Tulsa proper. Replotting, Resurveying, ect...Big cities could careless. Most small cities will deal.

Side Bar: If you have to dig. Get an intern. That's law 101. As far as he/she knows. ;)

[Dubhe]

A colleague of mine just went through something very similar to this, except he tried to absorb the disputed property so that the easement couldn't be developed by the town (it was a paper street easement). In the end, he spent $30,000, 4 years, and lost the case.

I'm not a lawyer (I love saying that :)) but why not put up an attractive but inexpensive fence, accept the neighbor's terms, and think of the arrangement as a temporary situation subject to the next owner's wishes?

[JPK]

The simple way out is to have your property surveyed and staked (part of the process).

In most regions a surveyor will drive a metal rod (like rebar) several feet into the ground (tough to remove) to mark the corners/boundaries of the lot.

If/when you or the neighbor goes to sell you have a drawing from the Surveyor and you walk the boundary with the buyer or you take a metal detector and locate the rods and pull string to mark the boundaries.

I did this with my last house and it was a nice selling point along with the elevation survey I had done to save $$ on flood insurance.

Let the neighbor do whatever he/she wants on their own property....I would avoid getting involved with them and their fence.

[randydrivesabus]

negotiate a very long term lease.

[beedeetee]

I am a licensed land surveyor and we have helped do all of the above. Actually when I bought my current property there was a fence that didn't follow the property line. They (previous owners on both sides of the line) had an agreement written up and recorded that stated that the fence was not on the property line and adverse possession would not take place to the fence. If either party wanted to eventually move the fence to the property line they could at their (the party that wanted the fence moved) expense and with 30 days notice.

If you don't want them to be able to ever move the fence back to the true line I would get the fee title conveyed to you.

You might want to see if this is an alley owned by the public. It should show up on the old plat. The alley won't necessarily go away from lack of use. You normally can't adverse possess against the public and would need to vacate the alley to get the land divided between the owners on each side.

[Brenda]

You might want to see if this is an alley owned by the public. It should show up on the old plat. The alley won't necessarily go away from lack of use. You normally can't adverse possess against the public and would need to vacate the alley to get the land divided between the owners on each side.

That's what I was going to say. If it is city owned then it the neighbor doesn't have anything to do with it. If it's been vacated then you each get half of it.
If it's always been an easement, is the easement on you, on him, or split? Who's property was it to begin with?

[Swobee]

You need to find out if the space is an 'easement' or an 'alley'. Huge differences legally between the two. Sounds like an easement if the community permitted fences within, or they don't know the problem exists. As an easement, the property owners have certain rights and are at the same time subject to certain limitations. Laws will vary from state to state, obviously. Easements can typically have fences built within them. An easement in effect is your property, but it's use is defined. You might be able to fence it in... but you WILL be required to allow utility trucks, crew, meter readers, maintenance personell, etc. ingress & egress through your easement. The fence could be in their way - as good neighbors, they "may" repair or remove/replace as needed. In an emergency, they don't have to be neighborly & you could be responsible for having your fence moved, relocated, repaired, etc. if it's in their way. Buildings are or at least should never permitted within easements. That should go without saying because of the need to access, service and maintain whatever utilities may lie underneath the soil or on poles above.

Now, an alley is a clear line in the sand so to speak. It is owned by the community, not you. You may be required to maintain it from weeds, etc. even though it is not your property, depending on local ordinances. No buildings, no fences, no junk, no-nothin' is permitted within any alley at any time. They are clearly designated for use for utilities, services, etc.

As a former building official & zoning official (that's BOZO thank you very much), this was something I dealt with every day. We permitted fences within easements, but the caveat was clearly printed on every fence permit - 'ingress & egress for utility service crews is required and may need to be provided at your expense'. As a utility energy conservation consultant, I don't deal with this any more, but many co-workers do. The staking crews, service crews are always sweating over closed-off easements and how the heck to get in there to replace that blown transformer if it ever goes to poo. Go ahead and make that easement inaccessible... just don't cuss one iota when it takes all day to get a simple repair done because the infrastructure was inaccessible due to your neighbor's & your actions.

The above is a short scenario of easement vs. alley. As an easement owner, I have the right to fence in and protect my property. But gates are provided to allow all but the largest service vehicles onto our easement. This is simply because my wife wants her power back on 'yesterday' if there's an outage!

Confused? So am I. Consult a local engineering/surveying firm- have your lot lines pinned with permanent markers as discussed earlier. Then you will know if it's an alley, easement and who owns what portion. Be very, very careful making any agreement with an adjacent landowner. The next guy may not be as friendly and may not want to honor that agreement. A handshake deal doesn't mean much to the next guy.

[NeilV]

Thanks for the feedback.

It is an easement, not an alley. One half of the easement is in each yard. The old fence that is currently there is smack in the middle of the easement. If they needed to dig up that sewer main, they would tear out the fence, I think. The proposed fence that is further into the neighbors property would actually be on the edge of the easement. The new, proposed fence would move the entire easement area into my usuable space, if that makes sense.

Neil

[beedeetee]

Neil,

If it is truly an easement, then making a change is far easier. There are still things that you need to be careful of.

You could get an easement from them for your fence and use of the property but normally an easement still allows them to use the property as long as it doesn't affect your use of your easement. As an attorney maybe you can remedy this problem. It may not be a problem with the current neighbors but the next ones could be different.

You could lease the property from them. In our state a land lease requires a segregation. I suspect that it doesn't in most states but for example cell site leases are much more difficult here because the companies want a land lease which can be time consuming and costly.

You could buy the strip from them. A Boundary Line Adjustment may also be legislated by your city or county. You may need to get all of the improvements mapped by a surveyor. They want to be sure that the new line doesn't impact a setback or affect the minimum lot depth or area.

You could do like I have and just agree that you can put your fence (with no adverse possession claim accruing) there but if they want to move it they can at their expense.

There are probably more options, but the ones that I listed are the ones that we are usually involved in writing the description for or surveying.

[Sarge]

Make a visit to the Area Planning Office, and ask for the specifications on lot sizes and setbacks. Drop across the hall to the Plat Office and have them pull the legal descriptions for your, and your neighbors places. While you are there ask to see the plat map for your place. Find the reason for the easement and see if it still applies or perhaps has been vacated.
IF, it is an existing easement and there are no problems with the Area Planning folks, then you can have a quick deed done up and buy it for a dollar.
Just don't forget the easement is there. Make allowances for possible future needs.