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ScottyMacESQ
ScottyMacESQ, Lawyer
Category: Real Estate Law
Satisfied Customers: 11710
Experience:  Licensed General Practice Attorney, Texas
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I own residential real property, single family residence, in

Customer Question

I own residential real property, single family residence, in Az. My neighbor's chain link fence was, per her, constructed 6 inches in from the property line on her property. I have a lawn currently, and am gradually switching to desert landscaping.
My neighbor built her fence about 18-10 years ago, prior to my purchasing the home 14 years ago. She let me know that her fence was 6 inches in and I've been careful to respect that.
I let her know about the upcoming landscaping, and that I'd instructed my landscapers to add a 4" high plastic border along her chain link, so that the rocks don't go over into her yard and become a hazard when she's weed-eating. She left a message a little bit ago, reminding me essentially not to encroach on those 6 inches. This means I'd have to create a more substantial, artificial border that's free-standing, to keep 6 inches away from the fence. So, now weeds and such will grow in that tiny little border (about 80-100 feet long) and will require additional maintenance not anticipated.
I would like to know - after having a fence in that position for so many years, and my dogs having the run of the entire yard including that area, am I able to actually use that space, and landscape up to the fence, or should I keep everything six inches away from the fence?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  ScottyMacESQ replied 1 year ago.

ScottyMacESQ :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacESQ :

I'm sorry to hear about your situation. Unfortunately, you cannot use that space as though it was your own, even if she constructed the fence 6 inches in from the property line. The fact that you have "respected" that, rather than tried to occupy and cultivate that property, means that you have not "possessed" that 6 inch piece of land.

ScottyMacESQ :

In Arizona, in order for a party to take title to anothers land by adverse possession, he or she must meet four factors. Possession of the property must be exclusive, open and notorious, adverse, and continuous.

ScottyMacESQ :

(adverse possession is the law that governs being able to claim ownership)

ScottyMacESQ :

Exclusive – a party must show that he or she used the property exclusively and that he or she actually entered the property. For example, a party simply stating that he or she has used the property as the basis for an adverse possession claim is improper. The party must actually prove that he or she entered and used the property. Further, using the property along with others does not entitle a party to make a claim for adverse possession. The party must prove that he or she used the property while excluding others from using the property.

ScottyMacESQ :

Possession must be Adverse – A party’s possession must be adverse to the other party's claim to the property. If that party has given a party permission to be on the property, you cannot claim that you have obtained title to the property by adverse possession.

ScottyMacESQ :

But the fact that she mentioned this and you have respected it, unfortunately shows that it was not exclusive, open and notorious, or adverse. The only element that could be met would be the "continuous" element (in that it occurred for over 10 years).

Customer:

Well, when I say "respected": it's part of my overall yard, which is about 1/3rd of an acre. My dogs run up and down the fence line, I weed-eat and mow and keep the area clean. I think I also have sprinklers within the 6 inches. Does that make a difference? I respected it by not attaching anything to the fence, like.... well, rain gauge or something.

ScottyMacESQ :

Thus, the property in question is still her property, since adverse possession would not apply. If you did anything to change that, you could be liable for "conversion"

ScottyMacESQ :

The main problem is that your use was not "adverse", in that you did not claim an exclusive right by your actions to the property. If there was no fence, and you put up a fence in its current location, and she did not know, if there was 10 years, that would be adverse possession.

ScottyMacESQ :

But since the fence was there and she had let you know about this, and you didn't take make any exclusive claim to the property, then that would not apply, and it would still be hers.

ScottyMacESQ :

(I think that the fact that the fence is not on the property line sounds ridiculous, but that's the law and it doesn't change the fact of ownership unless all of those four elements listed above are present.

Customer:

Okay, so since I don't have my own fence right next to hers, and although my yard is otherwise fenced, secured, gated, and that tiny strip (can you believe we're even talking about this? Crazy.) has been used as an overall part of my yard, it's not adverse.

ScottyMacESQ :

Yes. A big issue is that both parties knew and she consented to the fence being there, and to you using that part of the land. The consent means that it was not adverse.

ScottyMacESQ :

Again, the only element of the 4 necessary elements that could be made out would be the continuous element.

ScottyMacESQ :

(that it occurred uninterrupted for 10 years)

ScottyMacESQ :

But the other 3 would be needed to claim rights to that land.

Customer:

Gotcha. I sure appreciate it - amazing that these, shall we say "penny-ante?" issues even come up in the first place. My place is the only immaculate, beautifully landscaped and well-maintained acreage on the block, and yet.... Ah, well. Perhaps in my next life, I'll come back as a cat or something and not have to deal with silly neighbors.

ScottyMacESQ :

I understand... While good fences make good neighbors, that typically assumes the fence is on the border... I guess that makes for a bad fence... Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

Thank you - and we always rate a 5.

ScottyMacESQ, Lawyer
Category: Real Estate Law
Satisfied Customers: 11710
Experience: Licensed General Practice Attorney, Texas
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