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My neighbor has a chain link fence encroaching on my

My neighbor has a...

My neighbor has a chain link fence encroaching on my property. They have had my permission to use that piece of land & they are very aware, as are our surrounding neighbors are, that the property belongs to me. The husband died 8 months ago and the wife called me 2 weeks ago asking me if she could buy that piece of land so that she could expand their fence. The neighbor had her property surveyed and I then agreed to sell her 1/2 of my lot for a specific price. In the mean time, she hired someone to build her fence. Now, 2 weeks later, I get a letter from her stating that she will only pay me 1/4 of the agreed price. Then I am made aware that her fence is completed (still encroaching on my property) I called her to reiterate that we had agreed to a specific price and it was not right for her to build her fence without settling with me. I told her then that she will have to move the fence since she reneged on our agreement. She then said she did not have to move it because of adverse possession. They were given permission to use it, she approached me to buy part of it, she had her land surveyed, and we agreed on a price. Any thoughts or suggestions?

Lawyer's Assistant: Because real estate law varies from place to place, can you tell me what state this is in?

Virginia

Lawyer's Assistant: Has any paperwork been filed?

No

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Answered in 10 minutes by:
8/30/2017
ScottyMacESQ
ScottyMacESQ, Lawyer
Category: Real Estate Law
Satisfied Customers: 18,161
Experience: Licensed General Practice Attorney, Texas
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Thank you for using JustAnswer.

I'm sorry to hear about your situation. How long was the chain link fence there?

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Customer reply replied 9 months ago
It has been there for a few years. The neighbors & I have discussed many times of them buying part of it.

But it hasn't been there at least 15 years?

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Customer reply replied 9 months ago
No!

Okay, just making sure. Thank you for that additional information. Please give me a few minutes while I type a response. I am still here with you, but it does take a bit of time to type a complete response.

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She has no claim for adverse possession, even IF she didn't have permission.

The Virginia Supreme Court held in Helms v. Manspile that the elements for a valid adverse possession case are:

(1) An individual claiming ownership by adverse possession must prove actual possession of the disputed property. In Helms, the Court stated that the Helms established their actual possession of the land by virtue of having (a) fenced-in the property, (b) mowed the grass there, and (c) maintained dog kennels on it.

(2) An individual claiming ownership by adverse possession must prove visible (or, to put it more colorfully, notorious) possession of the disputed property. The Court stated that the Helms established their visible possession of the land by virtue of having fenced-in the property (an editorial aside: there tends to be overlap in the evidentiary analysis in adverse possession cases, and perhaps someday a court will streamline the six requirements to two or three -- the rejoinder to this suggestion is that the juiciest (and most contentious!) AP cases tend to include specific details about each of the requirements).

(3) An individual claiming ownership by adverse possession must prove exclusive possession of the disputed property. In Helms, the Court stated that the Helms established their exclusive possession of the land by virtue of Mr. Helms having built a 'skid road' across the parcel -- an act which the Manspiles neglected to object to because they did not think they had a right to object.

(4) An individual claiming ownership by adverse possession must prove hostile possession of the disputed property. The Court stated that the Helms demonstrated the requisite hositility by virtue of having built the aforementioned fence.

(5) An individual claiming ownership by adverse possession must prove that he or she asserted a "claim of right" to use of the property. The Court stated that the earlier-described "use and conduct" of the Helms satisfied the requirement of a "claim of right"

(6) An individual claiming ownership by adverse possession must prove that he or she satisfied all of the other requirements continuously for a period of at least 15 years. In Helms, the Court found that the Helms's had satisfied the requirements almost since they time they purchased the adjoining property, in 1972.

The 15-year requirement (which is based in statute) is critical. If it's 15 years without permission, uninterrupted, then there could be adverse possession. If less, then it's not adverse possession (even without permission).

So in short, she has no claim, whatsoever, to adverse possession. You can point her to a real estate lawyer in this regard, and say that you really hope that she does, because you're going to be bulldozing that fence that is on your property if she doesn't move it or comply with your original agreement (or be as nice or nasty as you want to be... you're the one with the strong case).

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 the time and effort that I spent on this answer unless and until you rate it positively (3 or more stars). Look for the stars on your screen (★★★★★). You may need to scroll left/right/up/down to see these stars, but note that the rating is what closes out this question, so it is necessary that you do so.

Thank you, ***** ***** luck to you!

ScottyMacESQ
ScottyMacESQ, Lawyer
Category: Real Estate Law
Satisfied Customers: 18,161
Experience: Licensed General Practice Attorney, Texas
Verified
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Customer reply replied 9 months ago
Should I send her a registered letter stating that she remove the fence from my property since she has reneged on our agreement of the purchase of the partial lot that she had surveyed to buy from me?

Or certified. That might be a wake up call to her. And kindly invite her to simply Google "adverse possession in Virginia" to see that she's sadly mistaken about what is required.

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Customer reply replied 9 months ago
Also, her septic tank and drain lines are on my property. I was just recently made aware of this about a month ago when it had to be dug up.

If they weren't there for 15 years, they can be removed from your property.

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Customer reply replied 9 months ago
Thank you for your help!

You're welcome, and again, good luck to you!

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