Good Fences Make Good Neighbors
Answers to Readers' Questions About Land Ownership Issues
Bubba Brush has owned 300 acres outside Montevallo, Ala., for nearly 40 years. Along the way, he has learned a thing or two about working with, and living alongside, neighbors. Some experiences have been good, others not so much. He won't talk about the latter, except to say they were generally small disagreements that went south because of failures of cooperation and communication -- on the other guy's part, he said with a smile.
"A handshake just doesn't mean all it used to," said the retired veterinarian, who prefers that his handshake go along with a neighborly sit-down and a plate of his applewood barbecued chicken. "But it still all comes down to the golden rule: Do unto others."
Brush has an excellent relationship with a cattle producer across one of his fences. Together, they maintain the fences separating their properties.
"We try to keep trees off the fence. Whoever sees it first takes care of it," Brush said. "Because of the cattle, he polices it a little harder. But if a tree is down, he or I take care of it."
They share maintenance on both sides of their fence. "I spray it every year to keep it from getting overgrown," Brush said.
For Brush, good fences do make good neighbors.
EFFORT REQUIRED
Positive, neighborly relations are cultivated, not forced, over many years of interaction. They call for trust, a friendly disposition and an ability to bend a bit over the minor things.
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Below are some questions we gathered from readers who are trying to address land issues with neighbors. The corresponding answers were provided by experts in land and real estate law. Their feedback and recommendations are meant to apply in general terms only. If you have a specific property issue, it is always best to get legal advice from an attorney practicing in your area.
Q: We had a fence on our land for 70 years. But our neighbor had a land survey done, and he said the fence is on his property. He wants it taken down. Do we have to remove the fence?
A: As survey equipment and techniques have improved, the issue of encroaching fencelines has become more prevalent. Generally speaking, the property on your side of the fence that is within the legal description on your neighbor's deed belongs to him. However, many states follow a concept called "boundary by agreement" and "boundary by acquiescence." If neighbors agree a fence serves as a boundary line, or a neighbor does not object to the placement of a fence in a timely fashion from when it is installed, the fence becomes the boundary, regardless of legal descriptions in the deed.
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Q: My neighbor and I had an agreement about an 8-foot strip of unclaimed land between our properties that we used as a common drive. While I was out of the country, my neighbor did a survey and put up a fence on that strip, claiming the ground was his. He even went to the courthouse to change the deed. Do I have any options? We only had a verbal agreement.
A: Get a survey done on the disputed property to determine who actually has legal title to the land. If that survey reveals the property belongs to your neighbor, you are probably out of luck. Where a landowner gives another permission to use his property, he may, at any time, withdraw that permission. If the survey reveals you are the legal owner, you may be forced to file a "trespass to try title" lawsuit (a civil action to recover land wrongfully possessed) to get the title "quieted" in your name. To quiet a title means to remove legal uncertainties or adverse claims to ownership.
Q: We were part of a verbal agreement regarding the use of a field road that gave us access to an 80-acre piece of land we own. But now, the field has been divided and sold. The new owner is refusing us access to the field road. Do we have any right to access the road since it is an established way in and out of our field?
A: There are two ways a right to use another's land is granted: One is an easement, and the other is a license. If the agreement is oral, the right to use or access the land is a license. A license is revocable at any time and does not have to be honored by a new landowner if the property is sold. Easements usually are created by a written, signed agreement that details the land and the rights made available to use it. There are other ways for an easement to be created. One is by necessity. If your land is situated in such a way that there is no access to it from a public road, you may be allowed to continue your use of the private farm road. However, if you can access your land from a public road, even if it is not the established way and is less convenient, then a court is unlikely to force the new landowner to grant you access. This can be frustrating, but it is a prime example of why you should always put things in writing. A written agreement creating an easement can be recorded in the land record office with the deed to the property. Then, any potential buyer of the land encumbered by the easement has notice of it.
Q: We got a call from someone with land next to ours. He wants to use our gate and cross our hay pasture to get to his land. There is an undeveloped easement north of his property that could be developed to give him access to his land. Am I legally required to let them cross my land?
A: In general, landlocked property may be granted a prescriptive easement by the courts over a reasonable access route across neighboring property. That is an easement given by the court without the permission of the owner. The issue often becomes what constitutes a "reasonable route" based on creating the least amount of damage to the property over which the easement is granted. When a court grants such an easement, it may provide the landowner with compensation, impose restrictions on use of the easement and/or require the neighbor to pay for improvements or maintenance. If alternate access is available without crossing any neighbor's land, the courts will not grant a prescriptive easement.
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Q: I bought a small cattle ranch in Missouri. There was an existing easement listed on the title, and I did not dispute it. The easement allows my neighbor access to his land by way of a road that runs the length of my property. The road is steep and susceptible to rain damage. It needs grading about every four months to keep it passable. Is there any way I can demand my neighbor share in the cost of maintaining the road?
A: Generally, if the document conveying the easement does not spell out terms for the costs of maintaining an easement, the owner of the easement has the duty to pay all costs for maintaining the easement. In addition, the owner must maintain it so as to not cause any interference with the use of the property over which the easement runs. In your case, your neighbor has the initial duty to maintain the easement road sufficient for your use, as well. However, several states have statutes that require a property owner who also uses the easement to contribute to the cost of maintenance, usually in proportion to the amount of use.
Q: We purchased 400 acres of farmland that includes 30 acres of wooded land. The previous tenant and his friends continue to hunt there. We don't have any issue with the hunting, but we want to protect ourselves in case of an accident. Do we need these hunters to sign some sort of waiver?
A: Insurance is always an important risk-management tool, but depending on the type of policy you have, it may not cover hunting activities on your land. Posting "No Trespassing" signs is also a good idea, but the signs won't help you much with these hunters. You've given them permission to hunt on your land, either directly or indirectly, by not asking them to leave. Allowing them on your land without charge creates some specific responsibilities for you as a landowner, such as warning them about any dangers. Another thing you need to be aware of is that states have recreational use statutes. These provide liability protection to landowners who allow the public to use their land without charge. This law may provide you with some liability protection.
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Q: Recently, a neighbor's tree fell on our fence. We removed it and fixed the fence at a cost of $750. They own another large, dead tree, this one leaning in the direction of our barn. We're worried it will fall during the next big storm. Is there some way to force them to remove this tree before it tears up our barn?
A: Under the laws in most states, you can't recover for an injury to person or property until the actual injury has occurred. Your neighbor is liable for the damage to your fence, and he would most likely be liable if another tree falls on your barn. Perhaps you could visit with the neighbor and try to work out a way to get the tree removed before it falls. At the very least, send him a letter by certified delivery. The letter should state that if the tree falls, you would seek damages for harm caused. This won't guarantee you success if the tree falls, but it does provide evidence of your concern and your prior attempt to have the tree removed.
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