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Richard, Lawyer
Category: Real Estate Law
Satisfied Customers: 55129
Experience:  32 years of experience as lawyer in Texas. I'm also a Real Estate developer.
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I received a letter that a small portion of my fence is on

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I received a letter that a small portion of my fence is on my neighbor's property covering about 1 square ft. with a request to remove it. When the fence was installed 14 1/2 years ago, I showed the plat to the fencing company and requested they not put the fence on a neighbor's property. They don't have records of that. Should I get my own survey done....remove the fence without getting a survey? Who pays? It's been so long, am I legally liable to do this? I live in Georgia.
Welcome! My goal is to do my very best to understand your situation and to provide a full and complete answer for you.

Good afternoon. If your neighbor has a survey showing the fence on their property, you have a couple of choices. You could simply move it relying upon their survey. Or, you could get your own survey and then if your survey disagrees with their survey, your surveyors can duel it out if you and your neighbor can't come to an agreement. With regard to your other neighbor, if he's not complaining, I would do nothing. Although you would ordinarily be beyond the statute of limitations with your fence company, you could nonetheless contest that based on the fact that it should not have been started until you had notice of the fact the fence was not installed base on the plat provided.

Your other option would be to try to claim ownership of the property in question through adverse possession. Adverse possession is the process of claiming title to real estate by taking it and occupying it for a period of time. Adverse possession requires the following conditions to be met: i) actual possession of the property; ii) open and notorious use of the property; iii) exclusive use of the property; iv) hostile or adverse use of the property; and v) continuous use of the property. In Georgia, the duration of such possession is seven (7) years under color of title and twenty (20) years in other cases. Georgia Code Section 44-5-163, 164. You would not meet the 20 year statute, but if your plat shows you actually own the property where the fence is located, you would be eligible for the short "color of title" time period. In order to claim title through adverse possession, one would need to file a suit to quiet title. Color of title means a claim to title which on its face appears to support a person’s claim to title, but is fact defective and therefore fails in establishing title to the real estate. Examples would be: i) a deed whose execution was defective or is in question; ii) a claim arising from another person’s Last Will and Testament, or iii) two or more persons have received separate deeds to the same parcel of real estate.

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Customer: replied 4 years ago.

Thank you. If under the 7 year clause....I don't understand fully how the "color or title" works. If I thought the property was mine because I had the plat in hand when talking to the fence company, but now we're learning it's on hers (assuming her survey is correct), then the title would be defective, correct? How can color of title be used if it's actually defective? If I get a survey which disagrees with hers does that mean the color of title clause works? If surveys differ, does a court of law settle the dispute? If I agreed that the fence was on her property and put that in writing but asked her permission in writing to keep it there, would she own that part of the fence on her property? Is it possible to file suit to a quiet title by myself or would I need an attorney?

If your plat shows you own this property, and what was purportedly deeded to you was the property described in the plat, or you get your own survey and there is a discrepancy with your neighbor's survey, then you would have occupied this property under "color of title." In that case the 7 year period would be the applicable period and the court would award you title. This would likely be the case even if the court determined that the other survey is correct because you were operating under reasonable belief that the property belonged to you. You could resolve it by the "consent" which you leave it there and agree not to pursue adverse possession of the property. Or, she could agree to sell you the strip of land to resolve the issue. You could file your suit on your own, but I would recommend a lawyer to help unless you are somewhat familiar with the judicial system. If you decide to go it alone, I would at least get some direction from your nearest law school. Most of them have legal clinics that are run by law students and supervised by law professors that will help out in cases such as yours on a pro-bono basis to help the students, who are idealistic, energetic, and very bright, get experience while under the watchful tutelage of their law professors.
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