Ever wonder where your exact property lines lie? Are you feuding with a neighbor over joint property boundaries? Who owns and is responsible for the fence that separates you from your neighbor? What about the tree that is planted near the property line? Read this article to learn how to avoid messy boundary disputes with your neighbor.
Property Disputes Covered in this Article
Get Legal Help for a Boundary Dispute
The confusion over property boundaries is the basis of many neighbor disputes. Our real estate attorneys can help you define these boundaries and stop your neighbor from using your property without permission — either knowingly or unknowingly.
Common Types of Boundary Disputes
Fences and Trees
Who is Responsible for Fence Upkeep on a Property Line?
Many property boundary disputes revolve around the ownership and responsibility of fencing that separates properties and trees planted on or near the boundary. Unless property owners agree otherwise, fences on a boundary line belong to both owners.
Good neighbors should agree to split repair costs for fences or common boundary walls. Both owners are responsible for the fence’s upkeep.
Can I Take Down a Tree or Fence on a Property Line?
Let’s start with the fence part of this question. Neither you nor your neighbor may remove a fence or wall on a property line without the other’s permission.
Now, let’s say there is a large ash tree on the property line. You may cut the tree limbs and remove roots where they cross onto your property —provided that such pruning will not damage the basic health and welfare of the tree.
Another boundary dispute involves encroachment issues. Encroachment is when a neighbor puts up a structure that intrudes on (or over) your land. Encroaching structures can include sheds, rock walls, and porch expansions.
Your neighbor’s encroachment may not bother you. However, if you ever sell your property, you will need to disclose the encroachment to any potential buyers so that they can consider the issue as part of their purchasing decision.
If your neighbor’s encroachment bothers you, you have several options to handle the situation.
How to Address Encroachment Issues
Give Your Neighbor Permission
First, talk to your neighbor about it. He might agree to move the structure, or you might agree on an alternate arrangement. If you and your neighbor decide to leave the encroachment in place, you may consider giving him written permission to use your property. This can prevent a later claim of adverse possession.
Sell the Property to Your Neighbor
If your neighbor is unable or unwilling to remove the encroachment but is otherwise open to resolving the issue, you may consider selling the encroached-upon property to him. This financially compensates you for the loss of your property, and your neighbor gets to use the land without worry.
Hire an Attorney to Help Resolve the Encroachment
If you are unable to resolve the issue between yourselves, then you should consider hiring an attorney. A real estate attorney can offer guidance on the process of quiet title and ejectment or possibly a prescriptive easement.
A quiet title action confirms the rightful owner of a piece of property.
Ejectment is a cause of action brought by a person who does not actually possess a piece of property but has the right to possess it. You would bring an ejectment claim against the person using your property.
A prescriptive easement gives someone the right to use someone else’s property for a specified purpose. Prescriptive easements often occur after someone has improperly used someone else’s property for a period of time without permission.
In Colorado, a prescriptive easement can be obtained if the land use was not hidden (legally referred to as “open or notorious”) from the property owner for at least 18 years, and the landowner knew or should have known the use was occurring.
LR Smith Invs., LLC v. Butler, 2014 COA 170, ¶ 1, 378 P.3d 743, 744
A boundary dispute occurs when you and your neighbor can’t agree on where your property ends and theirs begins.
Typically, boundary disputes are triggered when a neighbor erects a fence or builds a wall to secure his or her property. A lengthy legal battle could ensue if these fences or walls are constructed in areas where neighbors have different ideas about the boundary line.
As with encroachment, you should try to resolve a boundary dispute with your neighbor before resorting to litigation.
How to Address a Boundary Dispute
If a boundary line is disputed, the court must determine the true boundary line. If the court finds that the respective owners of adjoining lands have recognized and acquiesced in a boundary line dividing their properties for more than 20 years, then that boundary will be binding upon the parties and their successors. Terry v. Salazar, 892 P.2d 391, 392 (Colo. App. 1994)
Determining Acquiescence in Boundary Disputes
Merely showing that a fence exists is not sufficient proof of acquiescence in a boundary dispute. You must show actual possession and dominion over the property up to a fence. Hartley v. Ruybal, 160 Colo. 80, 85, 414 P.2d 114, 116 (1966)
If two neighbors put up a fence between their property and no one claims the property beyond the fence for more than 20 years, the court will considered the neighbors to have acquiesced. That means the fence that served as the property line for two decades overrules the actual boundary line in the deed to the property. Let’s look at an actual case.
A Colorado Case
Neighbors Sarah Widdifield and Erica Herrin went to court for a property dispute over a fence. A surveyor found that the Widdifields’ fence did in fact encroach on the Herrins’ property.
The Herrins asked the court to ascertain and permanently establish the boundary line. Additionally, the Herrins asked the court to order the Widdifields to remove the fence from their property and build a new fence on the actual property line.
Sarah Widdifield claimed the fence was built in 1987 and was established as a “boundary of acquiescence.” However, a Denver district court found that:
“The evidence at trial was utterly devoid of any proof that any predecessor-in-interest to the Herrins ever acquiesced in the Fence as representing the true property line between the two properties versus being a barrier. The sum of Ms. Widdifield’s testimony was that she never spoke to or consulted with any of the prior owners of 3045 W. 26th Ave. about the boundary line before or when the Fence was built in 1987.” Widdifield v. Herrin, 2018 Colo. Dist. LEXIS 3661, *11
The court ordered the neighbors to split the costs of removing the existing fence and building a new one along the property line. Further, the court ordered the Widdifields to remove a swamp cooler that encroached on the Herrins’ property.
We Help People Solve Boundary Disputes
If you have property boundary issues that you cannot resolve with your neighbor, our Real Estate Team can help. Call 303-688-0944 to begin your free case assessment, o lláme al 720-359-2442 para hablar con alguien en español.