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Ely
Ely, Counselor at Law
Category: Real Estate Law
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Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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If a neighbor of mine in Vermont owns a home partially on my

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If a neighbor of mine in Vermont owns a home partially on my property for 35 years, I know they can claim the property by adverse possession. My questions is, can they continue to build other structures now? They have already violated local zoning ordinances creating illegal structures
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am sorry for your situation. By building other structures do you mean expanding on more land, or, simply building up what they have now?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.

they have put up an 8' fence in 2012 without knowing the actual boundary. Now they want to build a 20 foot shed on what they have now

Customer: replied 1 year ago.

Don't know if you got my response - neighbors want to continue building new structures on same land; put up an 8 foot fence on assumed boundary of property and now want to erect 20 foot shed

Expert:  Ely replied 1 year ago.
Thank you, B.A.

One more question, please. How long have they had this fence up?
Customer: replied 1 year ago.

The fence has been in place for slightly over a year. It replace a smaller board fence. I am more concerned about the shed.


 


The neighbors violated town zoning laws and had to appear before the DRB which rejected everything. The neighbors filed suit against the town. The town, not wanting to incur more legal expenses, allowed them to keep the fence, extended deck, and a 30 foot above ground pool, all on less than 1/2 acre. This all occurred in the past 14 months.

Expert:  Ely replied 1 year ago.
Thank you, BettyAnn.

Apologies in advance for the momentary wait while I am typing out my answer...
Expert:  Ely replied 1 year ago.
First of all, we need to discuss the difference between (1) adverse possession and (2) easement by prescription.

Adverse possession is when someone takes over the TITLE of the land (as well as the land) through squatting. This would entail living on the land as a whole and claiming title. This is called "taking the fee." Adverse possession indicates that the interest claimed is in fee (title). Russell v. Pare, 132 Vt. at 401, 321 A.2d at 81; Barber v. Bailey, 86 Vt. 219, 223, 84 A. 608, 611 (1912). In short, adverse possession does not apply here.

Easement by prescription is when someone takes over a PART OF THE LAND but not the whole thing, by squatting. "The term "prescription" applies to the acquisition of nonfee interests" (no title). COM. FEED STORE v. Northeastern Culvert, 559 A. 2d 1068 - Vt: Supreme Court 1989. This is what is in question here. So they are simply attempting to claim a slice of the land.

The elements necessary to establish a prescriptive easement under Vermont law: an adverse use or possession which is open, notorious, hostile and continuous for a period of fifteen years, and acquiescence in the use or possession by the person against whom the claim is asserted. v. Pare, 132 Vt. 397, 401, 321 A.2d 77, 81 (1974); 12 V.S.A. § 501.

Did you see the 15 year requirement? That means that they would have to have had that fence there for 15 years before they could claim an easement by prescription. So if they or their attorney told you they are claiming averse possession or an easement by prescription, they are hoping you would not call them on their bluff, as this is FALSE.

At this point, they are simply trespassing. One can initiate an action for the trespass and nuisance in Court and have them removed.

Ergo:

If a neighbor of mine in Vermont owns a home partially on my property for 35 years, I know they can claim the property by adverse possession.

Not so; see above.

My questions is, can they continue to build other structures now? They have already violated local zoning ordinances creating illegal structures.

Since they cannot claim adverse possession or easement by prescription, they cannot be building and may be made to leave via court order. Frankly, in theory, their building on one's property may be razed even without a court order via self-help, but it is best to have the court's backing first.

I hope this helps and clarifies. Good luck.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Expert:  Ely replied 1 year ago.
BA

Apologies! I have to modify my answer. I see that the fence has been there for 1 year, but the building for 35 years.

As such, one cannot build MORE than what one has already under easement by prescription. Since the fence is only a year old, it may be knocked down. Likewise, any NEW building may be knocked down provided that it is not 15+ years.

Of course, one would need to go to Court to make them stop building, I am afraid. So whatever has not had 15 years may be asked to be ceased and knocked down, to prevent them from "inching" their way more and more.

Please note: I aim to give you genuine information and not necessarily to tell you only what you wish to hear. Please, rate me on the quality of my information and do not punish me for my honesty. I understand that hearing things less than optimal is not easy, and I empathize.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 1 year ago.

One more question, please. If an illegal fence is constructed on an assumed boundary by a neighbor, do I have right to paint and maintain the side of the fence on my property?

Expert:  Ely replied 1 year ago.

One more question, please.

By all means - please ask as much as needed, for this is why I am here.

If an illegal fence is constructed on an assumed boundary by a neighbor, do I have right to paint and maintain the side of the fence on my property?

The answer is then technically yes. Under Title 24, Chapter 109, each party is responsible for maintaining a fence which was built right on the property line, either in equal portions and/or their own sides. See here. If it is agreed that this is the property line, then one has the right to paint and maintain their side of the fence.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 88710
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
Ely and 5 other Real Estate Law Specialists are ready to help you
Expert:  Ely replied 1 year ago.
Thank you for your gratuity.

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Ely
Ely
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Qualified attorney in private practice including business, family, criminal, and real estate issues.