Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
We’ve owned our land for 40 years. We have an acre. A person (now our neighbor) recently bought land next door. There has been a fence there for 40 years. He says its on his property and wants to take it 4 feet in which would be right at our garage and driveway. We have a wash that goes through the property. There is no other option for the driveway. Could we win in court?
The answer, of course, is it depends. First question is where is the actual property line? Did your neighbor get the property surveyed, or did he just decide he knows where the property line is? If he has a survey, you can choose to get your own if you doubt it, though surveys are generally accurate.
Assuming the property line is in fact four feet from where the fence is, the next question is what are you trying to accomplish? Do you want to keep the fence where it is, or keep your driveway, or both? You’re more likely to be successful with the driveway, since you have been using it for so long, presumably without permission. Depending on your local law, this may have ripened into a prescriptive easement, meaning that you have the legal right to continue using it.
Fencing in a neighbor’s land is generally a more difficult legal argument. However, it’s not impossible, depending on the nature of your property. Rural land is more likely to be flexible than a suburban subdivision.
In any case, you should consult with a local real estate attorney promptly, so you will know for sure what your options are before you attempt to further negotiate with your neighbor.
