Delmarva Farmer Columnists
Peeling away at property line disputes (Oct. 28, 2014)
Resolving boundary disputes is sometimes similar to peeling an onion. It often requires painstaking research through layers of land records and property use history to determine who legally owns what and where and if the boundary is disputed among neighbors.
This usually takes a team of professionals to coordinate how to resolve offending encroachments in the most cost effective manner.
Farm property is often passed down from one generation to the next. Property boundaries between generational neighbors may become a matter of tradition and friendly horse trading more than conforming with legal descriptions recorded in the local land record office.
So what happens when the time comes that you and your neighbor no longer agree on where your property ends and his begins, or when your neighbor informs you that you can no longer use her Back 0 to graze your cattle, or that you can no longer use the old farm road to access your own Back 40?
The starting point for resolving any boundary dispute, indeed any legal dispute, is to get the facts. All real property is deeded. Deeds that are recorded in the local land record office usually are dispositive of who owns what and where, as well as who can access what and where. Deeds contain legal descriptions of the boundaries that in most instances govern where the actual boundaries begin and end. In many instances they also provide for easements for access to other properties that would otherwise be inaccessible to a neighboring property.
The person who conveyed the property to you, though, could only convey such property as he/she/they actually owned.
In other words, if there is a variance in the property description from one owner to the next, you may legally own more, or less, than you thought. Land surveyors and title attorneys are needed in these circumstances to help you resolve both what property description governs your boundary and how the description actually “lays” on the land.
But what happens if you discover that in fact your neighbor really does not own all that he claims or if you discover that the old farm road was never recorded or described with enough particularity for anyone to figure out where it should be?
Property line cases are perhaps more easily resolved than easement cases, assuming that your neighbor has not put up a fence or built a structure across your property.
In those cases, the survey determines where the line is and you and your neighbor should use each side of the property line as you wish.
But if the survey reveals that your neighbor has put up a fence or built a structure on your property, you have a few options. Assuming that the fence or structure was installed fairly recently, in most states, the encroachment is considered a trespass and you can compel the neighbor to remove it.
Alternatively, you and your neighbor can negotiate an agreement by which the neighbor pays you to either rent the property or you convey it to the neighbor outright.
If you take the alternative approach, your lawyer and surveyor will help you record the transaction and the new boundary in the land records.
In Maryland and Delaware, if the encroachment was installed 20 or more years ago (15 if in Virginia), you may be out of luck. Your neighbor may have acquired the property by what is typically referred to as adverse possession.
Easement and right of way access can be more difficult to resolve in the absence of a clear description of the access location in the chain of title.
Most states will not permit a party to convey property that is legally landlocked. Accordingly, even if your deed makes no reference to allowing your neighbor access to property behind or adjacent to yours, if the only way to access the property is across yours and the neighbor has been doing so for several years, it is likely that a court will determine that you must continue to allow the neighbor to cross your property.
The right of access — in this case an easement of necessity or an easement by prescription — is not unlimited, however. Your neighbor must only use that which has historically been used and may not expand the use.
If you find yourself in this situation and you believe that your neighbor is over-using the easement access, you should negotiate with your neighbor detailed terms of the easement, i.e., where it is, who is required to maintain it, how heavily it can be used, etc., and then have an attorney draft the agreement together with a metes and bounds description of the location for recordation.
If you and your neighbor cannot agree, you will have to have the issue resolved in court.
Boundary disputes can become quite contentious, particularly when property has recently changed hands and neighbors do not know one another, the new neighbor decides to put up a fence or the neighbor decides to change the use of the property from its traditional use. In the absence of an owner’s title insurance policy that may provide legal assistance in resolving the dispute, legal and expert fees will quickly add up.
Work with your attorney and your neighbor to resolve the matter as expeditiously and cost effectively as possible.
(Editor’s note: Kim Pardoe Manuelides is a partner in the law firm of Saul Ewing, LLP, who focusses her practice on solving legal issues and concerns of the agricultural community.)
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