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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 30167
Experience:  JA Mentor
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There is a fence in our yard that has been there 9 years. It

Customer Question

There is a fence in our yard that has been there for over 9 years. It is 2 feet onto the neighbor's property line.(both surveys confirmed this) The neighbor wants to replace the fence with a new one and take back the 2 feet with new fence. Can they do this?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Lucy, Esq. replied 1 year ago.

Hi,

I'm Lucy, and I'd be happy to answer your questions today.

The law on this differs by state. What state do you live in?

Customer: replied 1 year ago.
new jersey
Expert:  Lucy, Esq. replied 1 year ago.

Thank you.

Under New Jersey law, for a person to be able to claim title to a person's land through adverse possession, they must have occupied the property in question without the owner's permission, for at least 20 years. If the fence has only been there for 9 years, I'm sorry to say, yes, he can make you move it. The only exception would be if there was another fence in the same spot for at least 11years before that, regardless of who owned either property during that time period.

Customer: replied 1 year ago.
There was a privacy fence before that and it was extended the rest of the way. The privacy fence was probably there for that time period.
Expert:  Lucy, Esq. replied 1 year ago.

Can you talk to anyone who can verify when the privacy fence went up? Are there old pictures?

Did the neighbor agree to have the fence put where it was?

Expert:  Lucy, Esq. replied 1 year ago.

I mean, knowing it as on their land?

Expert:  Lucy, Esq. replied 1 year ago.

I'm having some system issues. Can you let me know if that last response is showing up?

Customer: replied 1 year ago.
I believe it was put up knowing it was on their land.
Expert:  Lucy, Esq. replied 1 year ago.

One of the requirements of adverse possession is that the property owner did NOT consent to the occupation. So if they gave permission for the fence to be there all this time and now they've changed their minds, you wouldn't be able to satisfy the requirements.

You may have to talk to the prior owners, if you've owned the house less than 20 years, or maybe some neighbors who've been around that long, to see if they can give you any information that might help. Adverse possession is something that you'd have the burden of proving if they bring an action to make you move the fence.

Expert:  Lucy, Esq. replied 1 year ago.

You have to be able to prove:

1. Open and notorious possession (that's fine - they can see the fence, so you've filled this one),

2. without consent of the owner.

3. Exclusively

4. For at least 20 years.