- The Washington Times - Friday, August 3, 2007

The woman, who had lived in her Northern Virginia neighborhood for more than 40 years, was convinced. Somehow, sometime during the night, her neighbor had moved the fence that divided their two yards and was now encroaching on her property.

“She was sure that the fence wasn’t where it used to be,” says David Michael, who, along with his wife, had counted the woman and her recently deceased husband as “pretty good friends” during the 10 years they had lived in the neighborhood.

“She kept saying, I’ve lived in this home over 45 years — I know where things go,” Mr. Michael says.

Robert Frost’s notion that good fences make good neighbors can be sound advice — if those fences happen to be in the right place. When they aren’t, neighborly relations can sour pretty quickly.

“Property for just about everyone is closely tied up in matters of identity,” says Mr. Michael, who, fortunately in this situation, is executive director of the Northern Virginia Mediation Service. “We tend to see ourselves as islands, and the idea that this is my home and my property and you are trying to take it from me matters, even if you’re only talking about inches.”

When property is involved, the stakes can be pretty high.

Disputes over property can range from the position of a fence to the expansion of a walkway to the removal of a shared garage. And often, they have the potential to change longtime friendly neighbors into bitter enemies.

Mr. Michael was quickly able to diffuse the situation by realizing and acting upon what really was behind her charge: The overwhelming sense of dislocation she felt after the death of her husband.

“I told her if the fence was moved I had nothing to do with it,” Mr. Michael says. “I even offered to bring in a surveyor. After a while, she showed me her roses, I helped her clean up the yard, and she never raised the issue again.”

Mr. Michael used modern mediation techniques to help deal with his potentially explosive situation. But property line problems are far older, probably dating to the time when the first landholder decided to mark a boundary.

Georgetown’s Old Stone House, among the oldest remaining structures in the District, assumed its final form in the 1790s only after a dispute over a property line. Apparently, the west wall of the house had been constructed several feet beyond the boundary, and the materials resulting from the subsequent dismantling went into building an additional story.

There is also a particular street in Georgetown where the houses look like they do everywhere else, but the reality is far different.

“The survey on record says that the lots are not perpendicular to the street,” says Arthur F. Konopka, a real estate attorney in the District. “But the houses were, so every single house actually encroaches on the neighbor’s property.”

In the case of 1890s row houses, Mr. Konopka says, new homeowners are simply made aware of the situation as part of their contracts. Since the houses were built, no hackles were raised over the fact that part of one house is actually on someone else’s property.

“Nobody’s ever done anything about them,” Mr. Konopka says. “And that’s worked for more than 100 years.”

In cases where the “live and let live” approach doesn’t work, the solution may be simple: Hire a surveyor.

“Surveys are frequently performed in the metropolitan area at the time of acquisition to resolve any disputes,” says James Maher, executive vice president of the American Land Title Association (ATLA), the national trade association for the abstract and title industry.

“Those are the kind of disputes that need to be resolved to allow the transaction to go forward,” Mr. Maher says.

Essentially, surveys are drawings that mark the boundaries of a given property. They may also show buildings or other significant structures and improvements on or adjacent to the property. From a survey, you can see if such things as fences, walls, structures, or plantings encroach upon your land.

Fences on property lines, by the way, are usually expected to be maintained by both owners, unless they agree otherwise. Trees that either fall on your land or grow over the boundary line can be removed or pruned by you, the latter so long as it does not damage the health of the tree. And those acorns or annoying berries that fall from your neighbor’s tree into your pristine yard? They are considered a natural occurrence, so your neighbor is not responsible for removing them.

Surveying has changed a bit since George Washington traveled the Virginia countryside. Other presidential surveyors were Abraham Lincoln and Thomas Jefferson. Surveyors today like to joke that Mount Rushmore is actually a monument to surveying.

New technologies and more sophisticated tools have enabled a far greater level of accuracy than ever before.

“When I first started surveying out of high school, the equipment was pretty much the same that people used 100 years ago,” says Curt Sumner, executive director of the American Congress on Surveying and Mapping, a nonprofit educational organization founded in 1941 to advance knowledge in surveying and mapping, which has undergone a sea change in recent years with the advent of Global Positioning Systems.

“We had to do the math by hand,” Mr. Sumner says. “Now, of course, you just plug the numbers into a calculator.”

But some things haven’t changed quite so much. Surveyors still mark the boundaries of a plot using the “metes and bounds” system used by the original 13 Colonies. They also may do a fair amount of detective work, investigating existing maps, deeds and other records.

“Usually, people have some concept of where they think the property line should be,” says Mr. Sumner, “but our responsibility is to promote the public welfare to find out where it actually is.”

Even if you have an old survey for your property, getting an updated one can be useful, particularly since older surveys may be relying on physical features, once prominent, that are now long gone.

“In the early 1900s, people frequently used chestnut trees to mark corners,” says Mr. Sumner, “but those were wiped out. Streams may have dried up or roads moved.”

If you are getting ready to sell your home, a survey is practically required.

“If there is a potential boundary dispute, that should be disclosed by the seller and listing agent,” says John McEnearney, majority owner and broker with McEnearney Associates. “There will need to be corrective action taken because the buyer needs to know exactly what he or she is buying.”

Today, most title insurance companies require some sort of survey before they will issue insurance. Typically, such policies do not include coverage for easements, encroachments and boundary line disputes disclosed in such a survey. This is called the “survey exception.”

“The trend in the title industry nationwide is to provide limited survey coverage,” Mr. Maher says.

But boundary line disputes often occur between neighbors who have both lived on their respective properties for many years. In the best-case scenario, neighbors could agree on a physical object, like a fence, to serve as the boundary line between their properties. Each owner would then sign a quitclaim deed to the other, granting the neighbor ownership to any land on the other side of the agreed-upon line.

You can always go to court. Filing a quiet title lawsuit means that you request a judge to determine the boundary lines of your property.

“When folks can’t agree, and there are two conflicting plats, you rely on the judge,” Mr. Konopka says. “Judges have jurisdiction over land.”

Lawsuits can be expensive and time-consuming, and they may leave you and your neighbor on less than speaking terms. Too often, neighbors end up erecting fences just to anger the guy next door.

“Spite fence claims can be more expensive than total title failures,” Mr. Maher says.

That’s where mediation comes in.

“Mediation provides the opportunity for people to have conversations in a different way,” says Mr. Michael. “We try to shift the discussion from positions, ‘Your fence is on my property,’ to interests, ‘I feel like I’m losing control of one of the things I use to define myself.’ If we can do that, the entire dynamic changes.”

At the Northern Virginia Mediation Service, mediators are trained to deal with a variety of disputes, including those between spouses and ex-spouses, parents and children, and of course, neighbors.

But whether you are trying to decide which child gets to live with whom or where that fence line should fall, the operating principles are much the same.

“We want to help people understand one another and the conflict better,” Mr. Michael says. “If you just work with positions then you are not going to get very far.”

Frequently, neighbors will try to employ the concept of “adverse possession,” to explain a change in the property line.

“Adverse possession is a difficult mechanism to prove ownership,” Mr. Maher says. “Most claims end up being intensely personal, spiteful and difficult to resolve.”

According to the principles of adverse possession, property can be acquired by another if it is used by a nonowner for a particular period of time, so long as such holding is “open,” “notorious” and “continuous.”

Different jurisdictions have varying lengths to determine how long a property must be held in this way before it converts to a new owner.

But before you decide to move that fence in the middle of the night and re-landscape your side, consider this: Landscaping your neighbor’s land won’t be enough to gain those extra inches you might crave, but if your neighbor denies you access, well then, you might just have the basis for a legal claim.

“If I just build a retaining wall, then I may not actually be taking the land,” says Mr. Konopka, “but if I enclose some space, or tunnel underground, that’s a different scenario.”

More often than not, neighbors are content simply to point out that that fence or rosebush is actually on one or the other’s property and let it go at that.

“If you both understand that your fence is on my land, then I’ve preserved my right of ownership,” says Mr. Maher.

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