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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 30375
Experience:  JA Mentor
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My neighbor wants to build a fence and part of what he wants

Customer Question

My neighbor wants to build a fence and part of what he wants twill be on my property. While this does not directly bother me I am not sure of what the restrictions are. First I think he is encroaching on the property behind us abd secndly there is a utility easement also
JA: Because real estate law varies from place to place, can you tell me what state this is in?
Customer: Tulsa, Ok
JA: Has any paperwork been filed?
Customer: Not to my knowledge
JA: Anything else you want the lawyer to know before I connect you?
Customer: Not really
Submitted: 1 month ago.
Category: Real Estate Law
Expert:  Lucy, Esq. replied 1 month ago.

Hi,

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

Your neighbor could get sued for encroaching on the property behind you, but if it's not your fence, you should not be part of that cause of action. The bigger concern is that the other property owner might not know who owns the fence and may decide to sue you both. It could help if your neighbor will talk to the other owner before constructing anything.

He cannot interfere with the utility easement. If there is an issue with them needed to repair or do maintenance on the utilities and the fence is in the way, they'll take a portion of the fence down to get to the easement. You may want to talk to the utility company first.

The bigger issue here is what's called adverse possession. If your neighbor puts up a fence that is on your land and leaves it there for 15 years or more, he will then be able to bring an action claiming that he own the property beneath it. There's a concept in the law called "boundary by acquiescence," which essentially says that the spot neighbors agree to treat as the property line can become the property line. If you treat the fence as the boundary between your property for 15 years, you could lose some of your land, which lowers your property value. In Oklahoma, this can happen even if you know it's not the real boundary and even if you agree to put the fence there.

Expert:  Lucy, Esq. replied 1 month ago.

Also note that you could have trouble selling the property in the future with the fence there, because a lot of people won't want to buy a lawsuit, and this is the type of thing that can end in litigation.

One way to avoid an adverse possession claim is to make an agreement with your neighbor, in writing, signed by both of you, where it states that you are granting him, his heirs, successors and assigns (essentially, anyone who owns the property after him) permission to use the land by putting his fence there, and he acknowledges that he may never become the owner of the strip of land beneath the fence. The agreement should state that permission may be revoked in writing at any time. Make two originals, and record one with the county recorder's office under each of the properties. That puts future owners on notice. Also keep a copy for your records.

Legally, since he'll be using your land and you won't, you can also ask him to pay for the right to put the fence there, but that's between the two of you.

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Expert:  Lucy, Esq. replied 1 month ago.

Do you have any questions about this?