Property Line Protrustion
Buy Hunting Land Series - October 2021
Dale had been working on a new carport for a few weeks at his parent’s house when he noticed something about the neighbor’s house. Dale went to his friend who worked as a local realtor asking him if he knew what to do if someone else was protruding on their place.
Protruding? Like a tree limb hanging over the fence, or have they built their building part way on your property? He said the house is protruding onto his parent’s property, maybe by half.
Yes, we would call that an encroachment. Sometimes it happens accidentally because someone didn’t know exactly where the property line is.
Sometimes someone thinks they know where the line is and they are wrong—and they end up encroaching onto the neighbor’s property.
The problem comes when you must fix it. The easy way to fix it can be to just have that person buy the land they are encroaching on for a fair price. But what if you think they did it spitefully or without regard for your property line? Or if someone is buying your land and they find out through a survey that a neighbor is encroaching on your property—significantly—and you didn’t realize it. Maybe you already gave them the property, and truly that wasn’t in the plan.
I recently was in the process of closing a fairly large, older farm. It included about 200 fenced and cross-fenced acres with woods and pastures… a beautiful piece of land, with neighbors. Reading the old survey from 1933 was one of those things I really like to do. “From the 20-inch sweetgum stump, 16 chains…” and along with that it seemed finding a straight edge to draw a line was not a common thing. Just freehand a line from point “a” to “b” and write down the calls.
When the neighbor put up a fence between the two tree lines, they just kind of figured it was about in the right place. It had been 20 or so years, and they did not ask, no one complained, it looked about right, so go to it. Well, here we are nearly 70 years later, and the fence is still there—4 feet on the wrong side of the line. The farm was 4 feet smaller—for more than 1,000 feet long. And that needs to be reckoned with. Sure, it is only 1/10th of an acre. I get that. But my in-laws wish they still owned 1/10th of the acreage their family owned a while back… when they owned where the Georgia Capital now sits. Plus, it is important just to get things right. To sell the land, the closing attorney used the term, “Except” in the title description, as he could not guarantee the neighbor would go along with giving up that 1/10th acre. The neighbor actually could have a claim to the land through “prescriptive use.” He fertilized it, mowed it, maintained the fence and was out in the open with no one running him off. But, the new owner must bring this up with the old neighbor or will certainly have more problems later when that land sells.
I know of another recent situation where the Seller was unaware of a neighbor deciding to do some very expensive landscaping. The work was being done along the property line. The neighbor didn’t stay with the landscaper, and the work went over the property line. Since it was so pretty, who wouldn’t want it on their land, right? But if that land is being sold and the Buyer wants to know what his property lines are—and it is obvious the neighbor is now 20 feet over on the line, it can lead to some rather heated discussions. That is what surveyors and attorneys are for.
Many of us have heard the term “prescriptive easement” or “adverse possession.” Although technically a little different, legally they are very similar.
The five aspects of adverse possession are first, Open and Notorious. It has to be obvious it is being used. It may be a cut-through road to get to the property (prescriptive easement). There is Exclusive—to the extent it is the party claiming it that is using it for their use, not a public use (can be a group, like a hunting camp cutting across your land for access). And there is Hostile—you told them to stop but they keep doing it, and you don’t go any further.
In Georgia, 20 years is the statutory period. Then it must be continuous and uninterrupted, maybe annually.
Editor’s Note: Ed Fickey is a licensed broker in GA/SC/AL/TN and can be reached at 404.316.7821.