Special Issues with Property Boundary Lines

Instructor: Shawn Grimsley
Boundary lines may seem simple enough, but complications can arise. In this lesson, you'll learn about some special issues that involve boundaries, including encroachments, adverse possession, party walls, access, and vacation of public roads.

Boundary Defined

Before jumping into issues that may affect a boundary, let's review what a boundary actually is. A boundary is either a natural object, like a river or lake, or an imaginary line that defines the perimeter of a parcel of land. You generally own everything on or under the property within the boundary unless those rights have been transferred to someone else.

Encroachments

An encroachment occurs when some fixture (i.e., a structure that is permanently affixed into the ground) illegally crosses the boundary into another's property. Common examples of encroachments include fences, garages, driveways, landscaping or even a roof overhang.

You have a few options when dealing with an encroachment. An owner may agree to grant an easement permitting the encroachment. Granting an easement will prevent adverse possession, which we will discuss in a moment. If you want the encroachment removed and the encroacher is not cooperating, you can file a lawsuit. Available legal claims include:

  • An action for abatement of a nuisance - you seek a court order requiring the neighbor to remove the encroachment as a nuisance to your property
  • Trespass and ejectment - you ask the court to find that the neighbor is trespassing on your property and should be ejected from it by the removal of the encroachment
  • A quit title action - confirms that you have title to the property subject to the encroachment and for the removal of the encroachment to regain your possession of the property being encroached

If you don't act on the encroachment, the law may act for you in an undesirable manner, which brings us to adverse possession.

Adverse Possession

If left unchecked, an encroachment may lead to adverse possession. Adverse possession is a legal doctrine that holds that a person who takes possession of the property of another for a long enough period of time will actually acquire legal title over it. That's right: a trespasser can actually take legal title away from a property owner if all the elements of adverse possession are met. So what are the elements?

Generally speaking, in order for a person to take property by adverse possession, the adverse possessor must have possessed the property for the statutory period of time, usually 20 years, and the possession of the property must be:

  • Continuous - the possessor must be in continuous possession of the property during the statutory period of time
  • Hostile to the legal interests of the landowner and without permission - for example, possession or use based upon the grant of a lease, easement or license (i.e., revocable permission to use the land) is not hostile
  • Open and notorious - meaning that the possession is pretty much obvious to anyone that makes a reasonable investigation
  • Actual possession with the intent to keep it as your own
  • Exclusive - no one else is in possession of the same part of the property

Thus, if a neighbor builds a garage that encroaches upon your property for a continuous period of 20 years without you taking any action to stop the encroachment, you will lose legal title to the property upon which the encroachment sits and your neighbor will acquire legal title by adverse possession.

Party Walls

A party wall is a wall shared by two different buildings and is usually part of the structural support of both. If you envision a square bisected in half and each new square being a separate building, the line down the middle is the party wall - it is the wall for both buildings. A party wall is suppose to be exactly on the boundary line between the two buildings, but sometimes a party wall will encroach upon the property where one of the buildings sits. In other words, the party wall may not precisely go down the middle as a boundary between the two but rather shift over to one side a bit.

A party wall encroachment may make title to the property unmarketable. An unmarketable title is title that has defects or claims by other parties such that a reasonably prudent purchaser will not accept title to the property. The typical remedy is to obtain an express easement for the support and maintenance of the party wall.

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