What to do if I have a fence that encroaches on a neighbor’s property but I am the 2nd owner of this property and the fence was already built when I purchased?

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What to do if I have a fence that encroaches on a neighbor’s property but I am the 2nd owner of this property and the fence was already built when I purchased?

The neighbor is trying to sell his property and home and handed me a paper saying new owner can give 30 day written notice and the fence could be moved by me. This fence and small piece of land I use has been this way for 17 years. I have graveled it and use it as access to my parking and garage. What to do? The land has no use other than my parking.

Asked on June 3, 2012 under Real Estate Law, Oregon

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

It would be advisable to discuss this with a real estate attorney in Oregon.

You may be able to assert a claim to the area enclosed by your fence based on adverse possession.  In order to establish adverse possession, your use of the property needs to be continuous, hostile, open and notorious, and actual for the statutory period.

You have had continuous use of the property.  Your use is hostile (in derogation of the true owner's rights).  Your use has been open and notorious meaning that your neighbor has had notice of your use.  Your use has been actual and you have satisfied the statutory requirement of using the property for ten years. 

You have satisfied all of the elements to assert a claim of adverse possession to the property.  The problem is that there is an Oregon case which says, "Evidence that contested strip of land was enclosed by substantial fence for more than statutory period was insufficient to establish adverse possession".  The case is Woolfolk v. Isler, 37 Or App. 687, 588 P.2d 632 (1978) which your neighbor will raise to oppose your claim of adverse possession.

These cases turn on the facts as to what constitutes adverse possession.  In your situation, you  put gravel on the property and use it as access to your parking and garage.  Those additional facts in your use of the property are arguments in your favor in asserting an adverse possession claim.  Adverse possession is also called a prescriptive easement.


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