I recently settled a case involving a fence dispute between two neighbors who weren’t getting along. Fence disputes, believe it or not, are among the most common types of boundary disputes and most often arise when a property owner seeks to erect or takedown an existing fence.
This case reminded me of some important advice that every Massachusetts property owner should know about these matters.
It may sound obvious, but it is worth mentioning: a property owner can only erect a fence on their property. Placing a fence on your neighbor’s property can quickly lead to a fence dispute and, in the worst case scenario, a court order mandating the immediate removal of the fence.
To avoid this, ensure that your fence is on your property. A plot plan or survey can help determine your boundary lines.
Fences Can Lead to Adverse Possession Claims
A claim of adverse possession occurs when a person uses the property that is not theirs for an uninterrupted period of twenty years without the record title owner’s permission. Adverse possession follows the rule of “use it or lose it.” If someone else uses your property, you can run the risk of it eventually belonging to someone else.
One of the requirements for adverse possession is exclusive use: showing that the property was within the other party’s exclusive use and control. Massachusetts courts have held that the placement of a fence is a strong example of an adverse possession claim because it puts the property owner on notice that someone else is using their property. For example, if a homeowner erects a fence that encroaches several feet of their neighbor’s yard and makes use of this property as their own for twenty years, a claim of adverse possession may arise.
For this reason, property owners need to be aware of potential adverse possession claims when erecting fences.
Exercise Care When Removing Trees
The building or taking down a fence often involves the removal of trees and other vegetation. If this applies to you, proceed with caution. Massachusetts law imposes steep penalties for willfully cutting down someone else’s trees:
A person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed therefor; but if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only.
Boundary Disputes Can Become Contentious Quickly
Even the smallest boundary dispute can become a source of friction between landowners when it comes to land. This is an important factor to keep in mind when dealing with a fence dispute. An overly aggressive approach to one of these matters can inflame tempers and lead to unnecessary legal expenses and time in court. For this reason, always try to find an amicable resolution to one of these matters first.
Consult An Attorney If All Else Fails
Of course, some fence disputes (like any other legal matter) can not always be resolved on their own. If you find yourself in such a scenario, strongly consider speaking to an experienced real estate litigation attorney.