Bad Fences Make Bad Neighbors

We here at Cohen & Winters don’t practice land law.  A recent New Hampshire Supreme Court decision, however, provides an interesting look at how you can lose your property rights if you aren’t careful.

Trouble in Paradise

The McKay family has had property in Hampton, near the beach, since 1963. In 1993 they put up a fence between their property, and the property directly behind them on Francis Street. The problem is that they actually put up the fence over the property line, three to five feet into the Francis Street property. Most likely, it was an innocent mistake. Regardless of why, from then on the McKays used the extra strip of land as if they owned it.

How to Handle an Encroachment?

Fifteen years later, in 2010, the Little family purchase the Francis Street property. Of course, they assumed that the property line was at the fence. To their surprise, however, someone told them that the property line was actually on the other side of the fence. They confirmed this by reviewing a survey. They then called the McKays and told them to move the fence back to their own property. The McKays refused.

Over the next couple of years the Littles occasionally repeated their request that the McKays move the fence. They also offered to give the McKays permission to use their land. The McKays always refused both options. Finally, in December of 2013, the Littles sued for “quiet title”. This means they asked the Judge to formally declare that the piece of land in question belonged to them.

Adverse Possession

The Judge ruled against the Littles and in favor of the McKays based on the principal of “adverse possession”. Many people would be surprised at this decision. However, the rule of adverse possession says that if one person possesses someone else’s property for long enough without interruption, they come to own it. Specifically, they must show “twenty years of adverse, continuous, exclusive and uninterrupted use of the land”. Here, the fence went up in October of 1993 and the Littles did not sue until December of 2013, just a little bit too late.

The key is that the person using the land must do so openly and without permission. If the original property “ousts” the intruder, then the adverse possession ends. In this case the Littles claimed that they had, in fact, “ousted” the McKays. They felt they achieved this by their repeated requests that the McKays move the fence. The Supreme Court, however, said that mere demands by telephone and e-mail are insufficient. There must be actual action to take the land back, not just words.

Don’t Sit on Your Rights!

The moral of the story is pretty obvious. If you believe that a neighbor is using a portion of your land, or if you are being accused of using someone else’s land, promptly contact a land use lawyer. We can refer you to a good one.

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