When Fences Get in the Way

Settling property disputes in Washington state

Good fences don’t always make for good neighbors. Just ask attorney Mary C. Anderson, who sees plenty of people who’ve become embroiled in backyard disputes over fencing.

“It’s always the same issue: that your fence has encroached on my property,” says Anderson, who practices real estate—“pro- pro- pro-consumer”—as well as civil rights and personal injury law at Guidance to Justice Law Firm in Bothell, Washington. “We get calls that, hey, my neighbor put a fence up and I believe this person has encroached on our property. What can we do about that? Or: We got a survey done, and it appears this fence is located on my property. What can we do?”

Anderson says people get understandably emotional when it comes to protecting their property.

“Everyone does,” she says. “In their minds, they’re thinking, who’s this person encroaching on my property when I’m paying the property taxes on it?”

In Washington state, a doctrine called Adverse Possession clarifies who owns a piece of disputed property. It has several elements.

Open (and Notorious)

First, the claimant’s use of an area of property—whether fenced or not—must be “open and notorious.” “You have to send a message to the world that you’re claiming this property as your own,” Anderson says. “You begin to occupy a portion of your neighbor’s property, and you continue to mow it, and maybe you plant evergreen trees in that area, and your neighbor says nothing for 10 years. Nor do you ask permission from your neighbor to plant those evergreen trees. You are sending a message to your neighbor and the world that this area is mine.”

The person who originally owned the land has 10 years to object to their neighbor’s use of that property. If the adverse possessor refuses to remove trees, fence, etc. that have been added without permission, the original owner has the right to remove them. “This neighbor knows it’s her property and she can’t let this neighbor continually use her property without objecting to it,” Anderson says. “She has 10 years.”

After that, the original owners—or anyone they might have sold their home to after the 10-year period—no longer owns that land.

Hostile

The second element simply means the neighbor using a piece of land originally owned by another neighbor did not specifically ask to do so.

“It doesn’t mean you have to be mean and have animosity with your neighbors; it just basically means without permission,” Anderson explains.

Actual

This refers to the fact that you have used the disputed area continuously for 10 years. Anderson gives an example of when this would not be met: “Let’s say you have a piece of property and you are attempting to adversely possess a strip of land, and you go away for five years and don’t really maintain that area, and then you come back and start maintaining that area. Well, guess what? You haven’t continuously used it for 10 years, so now the clock restarts.”

Exclusive

The land must be used only by the adverse possessor, not the original owner, for 10 years.

When to Consult an Attorney

The best advice, Anderson says, is to always have a survey done before you buy property so that you know exactly where your boundaries are. But if you haven’t done that and find yourself in a dispute over land, it’s time to get a survey.

And she strongly recommends trying to keep things out of court, especially since property disputes are handled in superior court, not the less expensive venue of small-claims court.

“It’s going to cost you a lot of money, headache, time and energy, which you should want to avoid because there’s a statute here in Washington state: The prevailing party on an adverse possession property dispute claim would be awarded attorneys’ fees,” Anderson advises. “So you want to be careful in bringing these types of cases into court.”

It’s time to see a lawyer, she says, “if the communication between you and a neighbor has broken down and there’s no other option but to enlist an attorney to be a mediator to see if we can resolve this without court intervention.”

If you find yourself in this situation, it’s a good idea to consult an experienced attorney. Look for one who represents consumers.

But the best option, Anderson says, is to have a conversation with your neighbor.

“Hopefully they can work it out, and I know it’s hard,” says Anderson. “A lot of these property disputes are based on principle, because these neighbors are just so fed up with each other. So they’re paying out all this money when it may be beneficial to both parties just to sit back and relax and see if we can have a calm discussion.”

For more information, see our real estate law overview.

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