How do I settled property line disputes with the neighbors after having a survey?

Full Question:

We recently had our property surveyed and found that our neighbours fence crossed onto our side of the property line, she had it built about 5 years ago. She offered to have it removed after the survey was done and surpisingly to us when we agreed it should be removed she retaliated and told us she wanted less than 2 sq. feet of our concrete driveway removed which lapses onto her side, it has been down for 20 years and was put down by the contractor who built both our homes. What is the best solution for us?
05/15/2009   |   Category: Real Property ยป Encroachment   |   State: Washington   |   #16681

Answer:

When there is a boundary dispute due to a claim of encroachment on another’s property, a claim of adverse possession or prescriptive easement may be raised. Adverse possession claims seek to gain title to property, while prescriptive easement claims seek the right to continued use of, rather than the title to the property. Surveys generally determine the boundaries in property lines. In order for a neighbor to claim another neighbor's property by adverse possession, there are various requirements as to the use that must be met. There must be an actual, uninterrupted period of time, and a use that is open and hostile to the owner. If permission to use the disputed area is given, adverse possession doesn't apply.

Adverse possession is a means by which someone may acquire title to the land of another through certain acts over a defined period of time. Such acts must continue uninterrupted for the time period defined by state laws, which vary by state. The time period in Washington is 7 years. Payment of taxes alone isn't sufficient to claim a property by adverse possession. In general, the acts of possession must be overt, hostile, exclusive, uninterrupted, and under a claim of right, etc., so as to give the owner or others claiming entitlement to possession notice and an opportunity to counter the adverse possession. Payment of real property taxes and making improvements (such as paving or fencing) for the statutory period, which varies by state, are evidence of adverse possession but cannot be used by a person with no claim to title other than possession. Certain public property is not subject to adverse possession. Some states require that the possession be "under color of title," or that the person must believe that he has the right to possess it and has some form of document or is relying on some fact that while not actually conveying title, appears to do so. In addition, many states require concurrent the payment of property taxes for a specified period of time, and a few states also require that improvements be made upon the land. Eventually, the possessor is required to file for title with the county recorder. The actual owner then has a limited amount of time in which to challenge the newcomer's title. Essentially, the owner's only argument is to claim some sort of disability; such as age, mental instability, or imprisonment. The owner is not required to do much in order to stop the possessor from acquiring title; merely sending the possessor a note granting permission to be there will usually suffice. Various rules exist regarding the continuousness of the possession and the ability to "tack" various periods of possession together in order to satisfy the time of possession requirement.

A quiet title or trespass to try title action is the method of determining title to lands. In a quiet title action, it is possible to ask the court to issue an injunction to force another to do or refrain from doing an act. An injunction is an equitable remedy that the court may order when money damages will be inadequate to remedy the harm suffered.

In the case of an encroachment, a plaintiff may be awarded the fair value of the property. Typically, the court will determine value of property based upon expert evidence as to the value of comparable property in the location. In order to award punitive damages for an encroachment, courts have held that the plaintiff needs to prove the defendant acted with recklessness that shows a conscious disregard of property rights. Punitive damages are designed to deter conduct that was based on wrongful intent, usually requiring some proof of fraud, malice, oppression, or other wrongful and intentional motives.

If a surveyor is negligent is surveying property, by failing to use the standard of care and skills typical in the profession, and that negligence causes harm to another, it is possible that the surveyor may be liable for all or part of a claim brought against the person harmed.

An easement may be created by agreement which grants a privilege of a specific and limited use of the land of another. A right of way is a form of an easement granted by the property owner that gives another the right to travel over and use the owner's land as long as it is not inconsistent with the owner's use and enjoyment of the land.

The following are WA statutes:

RCW 7.28.050 That all actions brought for the recovery of any lands,
tenements or....

That all actions brought for the recovery of any lands, tenements or
hereditaments of which any person may be possessed by actual, open and
notorious possession for seven successive years, having a connected title
in law or equity deducible of record from this state or the United
States, or from any public officer, or other person authorized by the
laws of this state to sell such land for the nonpayment of taxes, or from
any sheriff, marshal or other person authorized to sell such land on
execution or under any order, judgment or decree of any court of record,
shall be brought within seven years next after possession being taken as
aforesaid, but when the possessor shall acquire title after taking such
possession, the limitation shall begin to run from the time of acquiring
title.

RCW 7.28.070 Every person in actual, open and notorious possession of lands
or....

Every person in actual, open and notorious possession of lands or
tenements under claim and color of title, made in good faith, and who shall
for seven successive years continue in possession, and shall also during
said time pay all taxes legally assessed on such lands or tenements, shall
be held and adjudged to be the legal owner of said lands or tenements, to
the extent and according to the purport of his or her paper title. All
persons holding under such possession, by purchase, devise or descent,
before said seven years shall have expired, and who shall continue such
possession and continue to pay the taxes as aforesaid, so as to complete
the possession and payment of taxes for the term aforesaid, shall be
entitled to the benefit of this section.