Can Our Neighbor Build A Fence on Our Property Because He Claims He Has an Easement?

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 live in Virginia and purchased property about 10 years ago on a golf course subdivision. The golf course has now been turned into a cattle farm. There is a fence that runs between the residential properties and the old golf course which we were told was the property line. Now the owner of the old golf course said that he has a 40 foot right-of-way and he wants to  move the old fence and build a new one 40 feet onto what we thought was our property, which will allow cattle close to our back door. We have maintained that property for over 10 years and also have an out building on there. We have also learned that there was a list of covenants when the property was a golf course. Since the property is no longer a working golf course can he enforce the covenants?

The first step is to find out if a right of way (also known as an easement) was ever recorded on your property. If there was, you may be able to find out what the terms of that right of way are. Most likely, it allows him to traverse the property. It is less likely that he would be able to fence off the property. He would not be able to entirely prevent you from using that portion of the property. You would still own the property, but would have to allow him to use it under the terms of the easement. If there is no easement recorded, he may still have one, but you can demand that he prove its existence. If this is the case, you should most definitely consult an attorney specializing in property law because different states can have different rules about when a non-recorded easement can be enforced.

Covenants “run with the land,” meaning they are part of the property and not dependent on the owner of the property. They cannot generally be abandoned or changed. If they were true covenants, they are probably enforceable. This means that they would be enforceable by the rancher as well as against the rancher, so you may find that this is in your favor. Keep in mind that some organizations use the word “covenant” when the rules are not actually part of the title. In that case, they may or may not be enforceable. Covenants can be incredibly tricky, so a consultation with a property attorney would help you know your rights, obligations, and options.