What Rights Does Neighbor Gain to Your Property If Fence Is Misplaced

Strategies for handling a neighbor who's cutting trees on, or otherwise using, property that's legally yours despite the fence location.

Question

I recently constructed a new fence around my property. It wasn’t practical to place the fence entirely on the property line, because a portion of my property is very steep. As a result, a portion of my property is located on my neighbor’s side of the fence. That portion of my property includes trees that provide shade for my house and backyard.

Since constructing the fence, my neighbor has cut down some of those trees. What should I do?

Answer

It sounds like you may have inadvertently granted your neighbor a “license” to use the portion of your property on his side of the fence. A license allows someone to use another’s property, but doesn’t convey ownership. Ideally, the license agreement would be in writing. But even without a written agreement, unless agreed otherwise, you legally maintain control over how that land is used, including whether trees may be removed. And, unless the two of you have agreed otherwise, this license can be revoked at any time, and or any reason, by you.

An additional concern in this situation is that your neighbor might make a future "adverse possession" claim on that portion of your property on his side of the fence. A person who trespasses on property long enough may be able to claim legal title to it based on the legal theory of adverse possession, depending on the length of time that has passed and whether the trespasser meets other requirements set by state law. The exact time period varies from state to state, but is usually at least a few years. Unless other steps are taken (see below), you should make sure your neighbor is off your property prior to that time period expiring.

In most states, a person seeking ownership of real property by adverse possession will also have to prove that his or her possession of the property was “hostile.” The definition varies state-by-state, but typically “hostile” means that the actual land owner did not give permission to the trespasser to use the property.

To make sure your neighbor can’t argue his possession of your property is hostile, you might ask your neighbor to sign a license agreement. This would make clear that you remain the owner (and controller) of the land and are giving permission for your neighbor to use it, thus avoiding a future adverse possession claim.

If you don’t mind your neighbor using that portion of your property, but can’t get him to sign a license agreement, another potential way to deal with the situation is to provide him written notice that the fence is not located on the property line and that he is using your property with your permission, which you reserve the right to revoke for any reason.

In case of a future adverse possession claim, the written notice may be helpful to show that your neighbor’s use of your property was with your permission (and not hostile). Keep, for your records, proof of mailing and a copy of any letter you send.

You might also discuss with your insurance agent whether your homeowners' policy is sufficient to cover you in the case your neighbor or his guest is injured on that portion of your property.

If you don’t want your neighbor using your property, you may want to revoke his right to use it in writing and demand he vacate your property. If your neighbor refuses to vacate or threatens to continue cutting down trees, you should hire an attorney.

You can also call you local law enforcement agency, since your neighbor’s trespass might be a criminal violation. Your local law enforcement agency may view this type of trespass as a low priority, though, and ask that you resolve the matter between yourselves or in civil court.

As a final note, if you want to recover the value of the lost trees from your neighbor, and he refuses to simply pay you, filing a lawsuit might be an option. Depending on the value of the lost trees, filing a lawsuit in small claims court might be a cost effective option. Additionally, many states have “timber trespass” laws that impose penalties on those who unlawfully remove trees from someone else’s property. An attorney in your state should be able to answer specific questions you might have, including the value of such a claim.

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