What are my rights regarding a possible fence encroachment?

I have own a home for 21 years with a fence separating my yard from my neighbors. I talked to my neighbor about rebuilding the old fence and he said yes. After the old fence was taken down and new post place right at same spots, my neighbor than said he feels that the old fence line is wrong and that the “new” property line where the fence should be build is 2 feet over into my side of the yard where the old fence line was. his old fence has been there before I purchased the house 21 years ago. My neighbor wants me to pay for a surveyor report to prove if the “new” property line should be 2 feet into my property. He states I can’t rebuild the fence until I prove where the property line is. What can I do.

Asked on August 12, 2015 under Real Estate Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

The short answer is, do you feel that the fence is on your property (even if only by an inch or two)? If so, you do not need your neighbor's approval or permission--you may put a fence up on your side of the property line, even if it is only barely on your side, at will (subject only to any local zoning, etc. rules). If you put the fence up on what you believe is your property, your neighbor could pay for a survey and, if afterwards, he feels that you encroached on his property, could bring a legal action to adjust or settle the boundaries and remove the encroachment. If he were right and you did encroach, you'd have to move the fence; if you did not, it would stand. 

Going ahead and simply putting the fence up, if you believe it's on your land, puts the onus or burden on your neighbor to take the next steps and get a survey, file a lawsuit, etc., which he may or may not do. However, as noted, if he does carry through and is right, you could be forced to remove the fence. It may be best to talk to him and see if maybe the two of you can't jointly pay for a survey to confirm the property line--that may be the least adversarial and stressful, and most economical and productive, way to proceed.


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