Over the Line:
Misplaced fences, roads and other boundary disputes
There’s an old saying, “Good fences make good neighbors.” While that may be true normally, sometimes a neighbor’s fence is out of place and on your side of the property line. Encountering a boundary dispute with an adjacent neighbor is a fairly common issue for landowners. There are many ways a boundary dispute can arise. Sometimes, deed descriptions are inaccurate and have been that way for a long period of time and through several transfers of the property. Other times, though the neighbors all agree that the legal description is correct, one neighbor has been occupying a portion of the land for long enough to claim ownership of it. This usually happens under a theory of “adverse possession” or a “Boundary by Acquiescence.”
Property lines are often poorly understood unless fenced off and posted carefully. It is common for owners to suddenly realize that land is, or is not theirs, despite a long running understanding. Many times, a property owner will not know the true property line until they decide to sale the property and look at the actual survey of the land. To understand a property dispute, you must first understand property boundaries and property lines.
What exactly is a boundary or property line?
What are boundaries or property lines? Essentially, these are the lines on a county’s tax map that define and set apart different parcels of land. A property line is often an imaginary line through a lawn or field. Property lines and boundaries are what separates your property from your neighbors. In other words, they detail the exact amount of land you own and subsequently what this land is worth. That two feet that your neighbor is claiming could be a huge difference maker in the value of your property, depending on what is located on that two feet. Now that you understand what a property line is, let’s look at the ways someone could claim ownership of your property and subsequently devalue your property.
Adverse Possession – – How many hurdles did your neighbor jump?
Adverse possession is a legal concept that allows a trespasser—sometimes a stranger, but usually a neighbor—to gain legal title over someone else’s land. Arkansas courts continue to enforce this doctrine when one owner has neglected or forgotten about a piece of land while another has been using and/or caring for the land for a long period of time that making the trespasser leave would seem unfair, or create hardship on the trespasser. In other words, if a trespasser spends enough time caring for a piece of property that the true owner has neglected, and the true owner makes no objection, a court might award “ownership” to the trespasser.
Adverse possession should not be confused with having an easement to use another person’s property—for example, when a neighbor has an easement to use your driveway to access his or her house. Easements involve shared rights with others in pieces of property, whereas adverse possession results in a shift in title, and the corresponding right to exclude others from the property.
For a person to successfully claim ownership and gain title through adverse possession, several hurdles must be met. A trespasser’s possession must be (1) hostile (against the right of the true owner and without permission); (2) actual (exercising control over the property); (3) exclusive (in the possession of the trespasser alone); (4) open and notorious (using the property as the real owner would, without hiding his or her occupancy); (5) continuous for the statutory period (which is seven years in Arkansas, under Ark. Code Ann. § § 18-61-106); and (6) be accompanied by full payment of taxes over those years. In Arkansas, the trespasser must pay property taxes for all seven years. A trespasser cannot simply come onto your land, while you pay those taxes, and wait.
This may be better explained through an example. Taylor Swift decides she is going on an eight-year world tour. She currently owns a two-hundred-acre home with land outside of Little Rock, Arkansas. A day after Taylor leaves for tour, Kanye West decides to move onto her property with the Kardashian family and claim it as their own. Taylor never gave permission for Kanye to use her land as his own. In fact, she has disliked Kanye since he ruined her acceptance speech at the Grammys. While gone, Kayne, Kim, and the rest of the Kardashian bunch stay at the property and use it as their own. They let the whole world know of their use of the property and do not try to hide it. In fact, they even shoot seven seasons of Keeping up with the Kardashians on the property. The do not leave the property for the entire eight years Taylor is on tour. They have completely made nit their own. In fact, Kanye started a beet farm there and added an addition to the home. Finally, while gone, Taylor’s financial advisor quit. In fact, Taylor did not pay any property taxes on the property since she left for tour. Meanwhile, Kanye knew the taxes were not being paid and paid them under his name.
Taylor finally finishes her eight-year world tour and is so ready to get home. She is exhausted and cannot wait to sleep in her own bed. When the tour bus arrives to her residence, Taylor is astonished when she sees Kanye and the Kardashians running all over her property. She confronts Mr. West, who say, “Yo this land is Yeezy and Kim’s now. Go write another song about past boyfriends somewhere else and get off my property!” Taylor is so upset she leaves and immediately writes a song called, “He Stole My Land like He Stole My Heart.” (It later hit #1 and Kanye has since remixed the song for the dance floor).
The next day, Taylor sued Kanye West to recover her property. The Court told Ms. Swift that she needs to just “Shake It Off” and that the land has been adversely possessed by Mr. West. The court stated that Kanye had met all the elements, including paying the taxes, during the seven-year statutory period. Consequently, the court vested title ton the land to Kanye West by virtue of adverse possession.
While this may have seemed like a silly example, it hopefully has helped you to better understand what the elements of adverse possession are and how they are proven.
Boundary by Acquiescence: The easier way to steal your neighbor’s land
Boundary by acquiescence allows recognition of a boundary where there is an unspoken agreement between the parties, recognition of the boundary for a long period of time, and a fixed line that is definite and certain. A boundary by acquiescence is usually represented by a fence, a lane, a ditch, or some other monument which, unspoken and implied, is accepted as visible evidence of a dividing line. A boundary line by acquiescence is inferred from the landowners’ conduct over many years to imply the existence of an agreement about the location of the boundary line. In other words, if your neighbor’s fence has been three feet over in your yard for the last five years and you both have acknowledged the fence, then it is implied that you both agree that this is the boundary line.
In acquiescence cases, neither neighbor intends to take property from the other, but there is a mutual mistake as to the location of the actual boundary line. A claim in an acquiescence case cannot be hostile if both neighbors believe they are observing the true boundary line.
Boundary by acquiescence requires three key elements: 1) a tacit (unspoken and implied) agreement between the parties; 2) recognition of the boundary for a long period of time; and 3) a fixed line that is definite and certain. The “tacit” agreement between the parties must be mutual, however, silence can be interpreted as an agreement. If your neighbor’s fence is on your property and you know it is, you should voice that it is, and the land belongs to you even if you are okay with the fence being located where it is. It is best to do this in writing and save it as proof. By voicing your objection, you should have raised a sufficient objection to refute the other person from being able to claim your property through boundary by acquiescence.
The Arkansas Supreme Court requires a minimum of seven year to claim property through boundary by acquiescence. However, some cases merely require a “long-period of time.” This opens the door for arguments that boundaries can be taken in less than seven years. The period would vary with the facts of each case. So, the best line of defense to avoid a boundary by acquiescence from your neighbor is to alert them periodically that that fence is not the true boundary line.
Prescriptive Easement- On the Road Again
A squatter who cannot establish all the elements of adverse possession or boundary by acquiescence, may be able to acquire a permanent right to continue a historical use of the occupied land by acquiring a prescriptive easement. The elements of a prescriptive easement are nearly the same as for adverse possession: an open and notorious use of the property for a continuous period of five years or longer, under a claim of right to the use the property, in a manner that is contrary to the true owner’s rights. A prescriptive easement does not require the payment of taxes except in the rare instance where the disputed property is separately assessed.
A successful claimant of a prescriptive easement does not acquire title, but, rather, acquires the right to continue a specific historical use of someone else’s property. This is a non-possessory and limited right to use the property, such as a road over your neighbor’s land which goes to your land. But this right to a specified use is a lesser right than outright ownership. You can never claim ownership under a prescriptive easement; however, you may claim an indefinite right to use the land.
The Takeaway
When dealing with any sort of boundary dispute, it is best to act early. As soon as you realize that someone has encroached on your property, notify them in writing, even if you are fine with their use at the time. If someone refuses to leave your land, remove their fence, or acknowledge the actual boundary or property line, review all the elements of the for adverse possession and boundary by acquiescence above. More than likely, they will have missed at least one of these elements. You should then contact an attorney to resolve the dispute legally and remove the trespassers from your land.
At WH Law, we have helped many landowners resolve boundary disputes and restore them to their previous property rights. Whatever the reason someone has claimed an ownership to your property, call us today so we may help you to stop another person from claim stealing your land and thus protect the value of your property.
