A client recent asked us: “our two unit condo association was preparing to replace a worn out boundary line fence and purchased a survey. It turns out that the old fence which is falling down is nearly 3 feet inside our boundary line. The neighbor has begun using that 3’ for gardening and storage and other uses. What should we do?

Our response:

The hard part is that condominium buyers almost never get a survey before closing. But in this case, spending the extra $300 or $400 might have been a good idea.

Nature abhors a vacuum. So naturally if there is spare space outside a fence . . . . the neighbor is going to pile something there! He may even think he is doing you a favor by cutting 3 feet of your grass for you!

Your major concerns are:

Preventing what some people call “squatters rights” or “Adverse Possession” by the neighbor. Just the fact of him cutting grass outside your fence for the past 15 years is only a start. He also needs to prove a few other elements to have a legitimate shot at winning a suit to claim the 3’ of your land for his own. You can protect yourself from losing the land by:
You (and/or your seller or his seller) have paid the real estate taxes on that strip forever. Gently remind the neighbor that he has never paid taxes or had any “colorable claim of title” to the property . He has exercised bald possession only. You can start to exercise more overt and notorious ownership and dominion over the property by moving the fence back 3’ without notice, but building a friendly consensus is always better.
You (and/or your seller or his seller) have tolerated and PERMITTED the encroachment of a garden or a close line until now. His possession has never been “adverse” to your interests.
You have simply been trying to accommodate a friendly arrangement. Also, many fences get mislocated to make room for existing shrubs, trees, ditches, or other natural or manmade structures or features that make everything more aesthetically pleasing for both neighbors.
Preserving a good neighborly relationship.
Talk to the neighbor (hopefully he’s the owner and not a tenant) and let him know that you plan to upgrade the fence. Remind him that it will enhance everyone’s property values to get rid of the old fence. An ace up your sleeve may be that someone usually gets the nice facia boards and the other neighbor looks at the cross pieces and uglier side of the fence. This is a negotiating chip to offer him the nicer side of the fence if he is cooperative.
Let him know that there is still an old law on the books in Virginia that says you could actually assess him for half the cost of the fence!!!! You are doing him a favor by doing it out of your own pocket:

§ 55.1-2821. Obligation to provide division fences.

Adjoining landowners shall build and maintain, at their joint and equal expense, division fences between their lands, unless one of them chooses to let his land lie open or unless they agree otherwise.

Admit that it is always possible that either:  (1) your surveyor got in a rush and measured wrong or otherwise made a mistake and you want your neighbor to have a chance to double check or even get his own survey; and    (2) it is possible that you guys have a legitimate overlap!!!      One surveyor may have a “point of beginning” or a monument  that starts from a different direction or road or intersection than another surveyor.    It can happen that neither side is right or wrong but there is just an overlap from ancient measuring methods or technologies.   In Norfolk, whole blocks of people have roof overhands that encroach on their neighbors because someone figured out that they were measuring from a CURRENT INTERSECTION rather than an historical intersection when streets were narrower!!!!

The last thing that might help resolve the issue is a thorough title search. If the surveyor can’t or won’t share his title search foundation for his work, you may be able to get it from your closing attorney. Having an Owner’s Title Insurance policy is always a plus. If a possible claim arises, the insurance company may want to be notified so they can help you battle the claim and “mitigate damages”.

It may be as simple as the neighbor was greedy and tried to not give up using 3 feet of convenient property that your seller seemed to not care about. But it could also be very complex when these boundary disputes loom. A great time to get a legal consultation is . . . . as soon as possible!