Property Line Disputes

This blog attempts to summarize some property line disputes that can occur and a few ways in which they can be resolved. Nothing in this blog should be used in place of actual legal advice. Please contact an attorney if you have a property line dispute. 

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What we’re going to dive into today is property line disputes. This is all about when your clients call you and say they have issues with their fence or with their shed being on their neighbor’s land, plus examples of some property disputes that can happen and how we go about solving those problems. 

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FIRST: ESTABLISH PROPERTY LINES

The first thing you’ll want to do when you encounter a boundary dispute is to establish which property you’re talking about by drawing out the lines to figure out where one property ends and the neighbor’s begins. A lot of people believe that because they’ve always mowed a specific area that it belongs to them. I’ve also heard an example where someone paid property taxes for their neighbor to help them out and then believed they owned the property. Neither of these examples make the property theirs legally. The number one way to determine the lines of a property is to get a survey and do a title search

When you get a survey, you get the legal description of the property. This can be done in metes & bounds or in lot & block.

Metes & Bounds: This type of survey has been around since the United States was started. That’s how the original 13 colonies were mapped out when it was mostly based on large tracts of land. They then moved on to compass & chain measurements where they literally used a 66-foot chain and a compass to record the distance and direction of property lines. You can still see these measurements in our property descriptions today — you can see the calls from the compass and the degrees they’re walking, though we no longer measure in chains. They were later replaced with steel measuring tapes so they could get more accurate measurements, and recently those were replaced by electronic measurements.  

Ex: SE COR OF SEC 14 TH S 89 DEG W 209.03 FT N 33.74 FT S 89 DEG W 795 FT TO THE POB

These days they will plant stakes in the ground to mark the corners of the property and begin their measuring from there, but they used to just start at a landmark on the property such as a large tree or a creek. Many of the older metes & bounds measurements can get a little goofy, so when we see this type of description on title we will usually recommend an updated survey because property disputes do come up and we always want you to be prepared and know exactly where your boundary lines are.

Lot & Block: This is metes & bounds, but simplified. Lot & block is where you take a metes & bounds survey that premeasures out a bunch of blocks for houses and then creates different lots for each house to go in. They then plat it out on a big map and file that plat in probate court. That plat is now a reference point, so we no longer have to wonder who performed a specific survey and if it’s accurate or if it may overlap someone else’s land. The city signs off on this and it includes all the information you could ever need such as easements and encroachments associated with the property. This allows us to simply reference the lot and block number in the property description as well as the subdivision it correlates to in the plat. 

You can look up your plat on the Madison County Probate website HERE.

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COMMON TYPES OF SURVEYS

There are many different types of surveys you can get, but in the real estate world these four are the most common.

Boundary Survey: Establishes true boundaries of a property and then marks the corners of the plot. This is the cheapest and easiest survey and will best fit most property needs.

Mortgage Survey: Establishes true boundaries and building locations. It is more detailed than a boundary survey and shows improvements on the land and their locations.

Topographic Survey: A survey that locates natural and man-made features and specifically charts for elevation. This is the type typically used for things like hiking trails.

ALTA Survey: This type was established by the American Land Title Association and combines elements of the above 3 survey types. It establishes true boundaries and how they connect to neighboring property lines; shows access points to the property from major roads; shows fences, trails, roads, etc.; and points out all existing improvements of the property, utilities, and significant observations of the surveyor. It also details the zoning of the property and whether it’s in a flood zone, and is most often used for commercial properties.

The survey industry is very backed up right now, and it can take months to get a survey completed. This is because the real estate market is exploding, so they’re just as busy as real estate agents and attorneys are. If you know you’ll be listing a property soon and you think you may need a survey done, order it early!

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TYPES OF DISPUTES

  • Driveway cuts across neighbor’s land or is shared
  • Corner of shed is on neighbor’s land
  • Tree is dying and is on the property line
  • Don’t have legal access to land — landlocked property
  • Neighbor’s fence is on my land
  • Neighbor won’t pay their fair share of a boundary fence
  • Water lines run across my neighbor’s property
  • Mowing grass that isn’t theirs
  • Shrubs that overlap the property line

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FINDING SOLUTIONS

The ultimate goal is to fix the problem and keep things neighborly and out of court. Usually your neighbors will be your neighbors for many years, and it’s always best to keep a civil relationship with the people you live next to.

  1. Talk to the neighbor. Try to discuss the issue with your neighbor first — you may not solve the problem right away, but you will at least identify it.
  2. Get a title search. Sometimes neighbors will come to agreements that run with the land and you just don’t know about it. A title search will show us if this has ever been an issue before and whether there is a record of who actually owns the piece of property associated with the issue in question or if an agreement has already been made regarding it.
  3. Get a survey to mark the boundary line. 
  4. Look at specific solutions
    1. Easement. If you have a shared driveway with a neighbor but only you own the land the driveway is on, you can give them an easement to use the driveway. This will legally show who can use the driveway and how they can use it, plus it will dictate who is responsible when repairs need to be made.
    2. Boundary Line Agreement. This is similar to an easement, but instead of granting someone access you will outline who can use it and who is responsible for taking care of it, and then it will be filed in probate so that the agreement runs with the property.
    3. Purchase of Land. If something that cannot be moved easily, such as part of your house or part of a shed, is actually on top of your neighbor’s property, you may need to purchase that section of land.
    4. Exchange of Land / Quitclaim Deed. In a situation where you have a curved driveway that overlaps your neighbor’s property, we can quitclaim a small piece of the affected land to the other property and have new boundary lines drawn in an updated survey.
    5. Partition Fence Agreement. See below.
    6. Quiet Title Action in Court. If you can’t come to an agreement with your neighbor, the final option is to go to court, have both sides present their evidence for why they should legally own the piece of land in question, and then the court will issue a final ruling to quiet the issue. This can get very costly and is usually over a minor issue, so we always try to encourage neighbors to come to their own agreement outside of court before using this option.

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PARTITION FENCES

There is an actual Alabama law for what they call partition fences, which is when a fence is on the boundary line of the property. If it is only being used by one neighbor then it is their fence and they are responsible for it. If a neighbor ties into the fence and then uses it as the agreed upon boundary between the two lots, then it becomes a partition fence and is now a shared cost expense. The person who initially built the fence can have their neighbor who tied into it pay a portion of what it cost to build that side of the fence in the first place with deductions taken for things like the time it’s been up and damage it has incurred over the years, and they can require a shared expense on upkeep for the section of fence they are sharing. This is a statute and is not debatable. If you choose to tie into a neighbor’s fence, you are making yourself subject to this law without debate. If you and the neighbor you share a fence with disagree on the amount to pay in upkeep, you can take the issue to court and the court will find three disinterested parties to analyze the fence and give a quote on upkeep expenses, and the court will determine the final amount that needs to be paid. 

A lot of HOAs will include this statute in their own rules and will require that when a partition fence exists both parties must sign an agreement on these fees. This means that once the issue does come up, it’s already been agreed upon and neither party can really fight it. It’s good practice because it gives all parties notice ahead of time that it may be an issue that is encountered in the future and prepares them for when it does happen.

 

QUESTIONS

Can you claim adverse possession if your fence is on part of your neighbor’s property and you’ve been taking care of that piece of land for years?

I see adverse possession brought up a lot. It is a defense; no one can walk up to you and say they own your land because their fence has been on part of your property for 20 years. Typically it’s a much harder thing to claim than most people think it is and isn’t as common as you’d expect. It is simply a defense to be used when someone tells you that you don’t actually own a piece of land you believed was yours. When this comes up, you can say that you have paid taxes on the land, you have protected it and taken care of it for X years, or any other evidence to why you should and believe you do own the land. Typically what happens when there is a fence over the line, for example, is that we can draw up a boundary line agreement where both parties acknowledge that the fence isn’t actually on the boundary line and won’t be moved, but that the land on the other side of it is still your land. This helps avoid the cost of having the fence torn down and moved two feet over if the placement doesn’t actually affect either party’s ability to enjoy their land. This is enough to defeat an adverse possession claim because your neighbor isn’t holding onto it as their land; even though it’s fenced in, they have agreed in writing that it isn’t their land. 

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What happens when the wrong property is auctioned off at a tax sale?

This does happen. I’ve seen other issues where things were sold at a tax sale and then the tax assessor had to admit that the taxes had actually been paid and they just had the same parcel assessed to the land two separate times. Tax sale purchases are somewhat of a mess. Buying things at a tax sale does not give you marketable title — you have to get that yourself down the road. They’ll give you a tax deed after 3 years, but that will still require quiet title action to clean up your tax sale purchase. 

In the last 15 years, we’ve gotten so much better at getting the minute details of surveys more accurate that a big part of our job now in the title world is just to fix previous errors from surveyors who didn’t have the technology at the time to get completely accurate measurements. You have to expect issues when a property is very old because it likely hasn’t been conveyed in many years and you get a lot of oral agreements among older neighbors that should have been written into probate. 

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What happens if my water line runs beneath my neighbor’s property and they decide they don’t want it there?

In the city, there are probably already existing easements that were submitted when your neighborhood was being built that allow for the water lines and other lines to run throughout the area regardless of whose property is on top. This should all be listed in the plat in probate. When you’re out in the country and that kind of plat doesn’t exist, you may have a situation where neighbors were friendly for a generation and allowed someone to run a line through their property, but now the person who lives there tells you you have to move it. This may require you to talk to city officials and find a new way to run the water directly to your house, or if that isn’t possible then you may have to find a different neighbor who will allow you to run it through their property. It’s always a good idea to then have this written up and submitted in probate so that there is a record of the agreement if the issue ever comes up again.

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What if there is a dying tree on my neighbor’s property but it would harm my property if it fell?

With trees, it comes down to the trunk of the tree and which side of the boundary line it’s located on. If the trunk of the tree actually exists on the boundary line, then you have equal ownership of that tree; this includes if 90% of the trunk is on your land and only 10% is on your neighbor’s land. Regardless of where the trunk is positioned, if there are branches or roots on your side of the property then you can do whatever you want with them with no mutual consent required.  You’re allowed to trim it and attend to it as you see fit. What if, though, that tree is dying and my neighbor still loves it and doesn’t want to cut it down because their house is far enough from it that it won’t be damaged with a fall, but the tree is a risk to my house and I want to take it out? Then you will have to pursue further evidence as to why the tree should be removed. You may have to contact an arborist and have them assess the tree and agree that it is dead and is a danger to your property, then submit that in writing to your neighbor. If the neighbor still refuses to remove the tree, you’ve now set up a claim against them. When the tree does fall and damage your property you can prove they were negligent and should have removed the tree when you initially brought it up, making them responsible for the damage caused. If you don’t want to wait for the tree to fall and cause damage, you may be able to get court action to have the tree torn down.

We’ve written a separate blog on property rights when it comes to trees that you can find HERE.

By: Geoffrey K. Middleton
Attorney at Law
Huntsville, Alabama
Written in Nov 2021

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