Boudary Fence-Adverse Possession

[miket]

Picture this;

A boundary fence between rural neighbors is some 1.3km long and virtually a straight line.
The fence has been there since well before one neighbor A bought 11 years ago. The most recent neighbor B has been there for just on 18 mths.

Neighbor A had his property surveyed recently and discovered the surveyed true bondary zig zags slightly across both properties.
The land one neighbor has of the others is practically balanced.

Neighbor B has his property on the market and has no idea of the true boundary.

Re aligning the current fence would disadvantage neighbor A as the true surveyed fence line goes through his large established workshop, yards and formed boundary access road at one point of neighbor B's true section of property.

Should neighbor A say anything to B? Should neighbor B be ok with this then costs for a boubdary re-aligment could be shared and the surveyed line staightened to suit the current fence and titles updated. It could turn and neighbor B says move the fence to surveyed boundary and then it's no turning back.

Any comments appreciated.

 

[Puppeteer]

If Neighbour B sells and the buyer gets a surveyor in then Neighbour A may have no choice!

Neighbour A may be able to say to Neighbour B - "hey - did you know that the fence line isn't the boundary line. This could delay your sale. How 'bout we get the boundary re-aligned before your sale to make things go more smoothly."

Then it's a win-win.

 

[asy]

Puppetteer is right, I think this is probably the best course of action...

Keep in mind, the one major and basic tenet of adverse possession is that the possession must have been 'WITHOUT CONSENT'. That is, that the original fence must have been put knowingly on the incorrect boundary, and that the owners agreed to it (for whatever reason).

IF, and I doubt it, but IF, neighbour B makes a fuss, there's nothing to stop Neighbour A saying, well, when I bought it, old farmer fred (original Neighbour A) told me that the fence was put up incorrectly as an agreement between the original neighbours. This would (I believe) extinguish any adverse possession claims.

What's more likely to happen is exactly what Puppetteer said, alter the fence line so both neighbours get the right amount of land, with neighbour A retaining his shed. (It would be worth A paying more or all of the realignment costs, I would think, to get this through smoothly).

just my rambling throughs, am happy to stand corrected.

asy

 

[miket]

Puppeteer & Asy,

You've hit the nail on the head, my thought exactly and by your replies one can see two ways how this can be approached. Infact use the two combined sounds like a good approach.

The bit about old farmer Fred (Peter actually, hehe) is a good point.

Leave the physical fence where it is and do the realignment on title is around a couple of grand but hey, neighbor A would be happy.

MikeT

 

[asy]

glad to have been able to help!

asy

Let us know how it goes!

 

[Elysium-M]

Hey Miket,

Adverse possession needs around 12 years. And you don't have to own the land for the entire period. If the previous owner (or unbroken succession of owners) also had the fence up in the same position, and the neighbouring owner(s) never objected, then it may be enough.

Sorry Asy - I (respectfully) disagree with you about your comment that the fence had to have been put knowingly on the wrong boundary. It's enough that it was on the wrong boundary, even if nobody was the wiser back then.

The key is really whether any of the owners of the neighbouring land in the past 12 years objected to the fence on the basis that it was on the wrong boundary line.

If the neighbour consented, then it's not really adverse possession, it's more like an agreement between the parties (there may be some technical property concept that I'm not aware of).

Even if you want to just talk to your neighbour, it might be worthwhile checking to see whether you in fact have adverse possession rights, so you know where you stand. Before I start any negotiations with anyone on anything, I always like to ensure that I know exactly what my position is.

Cheers
M

 

[Savanna100]

Guys,

Adverse possession requires that the true owner does not know you occupy the land (you occupy without thier consent). It also implies that the true owner can't be found. It is generally a court which awards you land by adverse possesion, not the other owner !!!

what you are probably looking at is the creation of a right-of-way or easement by prescription.

Say nothing to the other owner and get legal advice !!!

 

[miket]

Rural Boundary Realignment

Savanna,

Owner B is selling up and hasn't any idea of the true boundary line.

Would be best to let it ride. Unless owner A has the solid positive advice to follow through.

Ta,
Mike