Border Wars with Neighbors and friends
Legally Speaking
Border Wars and Board Games on your Home’s Property
If you are a home owner, sooner or later you will come to realize that the imaginary lines separating your property from your neighbors’ has great potential to turn into your own private Franco-Prussian war. While as a kid I liked board games that featured rolling dice and conquering territories, it’s quite annoying to have a real life encroachment on your backyard. It’s also not that easy as in a game to just swat the pieces (or your neighbor) if things become too annoying.
How does this happen? Sometimes it happens because either you (yes, you can be the guilty one, too) or your neighbor decides to put up a fence, or a new shed. The idea just sounds wonderful – “Ah my new fence and all the privacy I will enjoy,” or “Just think of all my garage junk that I now can store in the shed.” Those simple thoughts, with good intentions, can start down the dark path to war.
The problem usually is the location of the imaginary property line. Sometimes there are permanent surveyor’s stakes on your property. They may take the form of a steel pipe cemented in concrete. There may be a splash of bright orange paint on them if they are not ancient. If the house was surveyed recently, there may be only temporary wooden stakes. If you have the more permanent kind, at all key points on your property, count yourself lucky. Assuming you can find the stakes (sometimes shrubbery, weeds or dirt can cover them) there is a good chance you may correctly identify your boundary line. Most problems begin because little or no attempt is made to identify the property line in the first place, or because bushes or ornamental fences create an illusion as to location of the property line.
If you cannot find any reliable permanent property line markings and you are somewhat fuzzy as to the location of the property line, do yourself a favor and obtain a professional surveyor before you erect a costly error. Making an error in the location for a new fence, shed, gazebo or other outdoor enhancement can really get your neighbor’s attention. If the fence or shed is beyond your property line, if and when it is discovered, you can count on the “invaded” property owner to contact you. The encroachment interferes with a neighbor’s use of his own land. If the neighbor knows his rights, he will realize that a fence placed on his property may “adversely possess” the land cut off from the rest of his property, if left unchallenged for the requisite number of years. Eventually, if the fence stands long enough, the land it surrounds is considered to have become adversely acquired by the property from which the fence emanates.
This is the rare instance where the law in effect rewards taking something that does not belong to you! It is just like that old board game, but without the dice and it takes a lot longer. The land becomes part of your property, but it can take 10 to 20 years, depending on the state you are in. Other property rights can be affected by a fence, such as cutting off a path, which another may have a right to use. If this “easement” is important, say a favorite shortcut from time immemorial – you may get sued! If a utility company needs to get a truck to an underground pipe, your fence may be in the way.
Usually, the party who wants to build just assumes “It’s my property and I’ll build where I want too” and may not realize that the town and other authorities may have a say concerning that. How close you can put the fence to the property line is probably spelled out in your towns’ zoning code. Put it too close and your neighbor may have a right to have you remove it, or move it, even if it’s on your side. Putting up a fence or a shed without town approval may also involve a fine. Fences also have two sides. The owner usually gets stuck with the less aesthetically pleasing one. Fence height can be an issue too.
The sudden appearance of a fence or shed where there was none before and anywhere near your property should make you think the game is on. Your yard may have just become that old board game.
Robert G. Ricco, Esq.
Robert Ricco, an attorney admitted to practice in New Jersey and New York, lives in Bergen County. He welcomes questions from readers about legal issues affecting everyday life in suburbia. This column is not intended to be a comprehensive summary of recent developments in the law nor is it intended to provide legal advice or to render a legal opinion. Readers are advised to consult their own attorney for legal advice.