Fence Law Basics

Discrepancies between new property surveys and longstanding boundary lines are ever more frequent. This is largely due to modern surveying methods. Back in the day, boundary lines and the fences that marked them often followed the natural contours of the land. Now, GPS technologies can go anywhere—across streams, over hills, and through trees—and mark boundary lines with precision. What does this mean for the farmer who’s told that a new survey shows that the boundary cuts into their side of a longstanding property line? Must the farmer just give up that land? Farmers have options to resolve this type of boundary dispute in their favor.

Minnesota and Wisconsin partition fence laws: “Fence viewers” don’t decide boundary disputes

A partition fence is a fence on the boundary line between two properties that is used by both owners. State and local partition fence laws set the parameters for fence height, types of materials, and so on. Occasionally, adjoining landowners end up in disagreement about these shared fences such as whether it must be built, who must pay for it and who’s responsible for maintaining it. To resolve these disputes, partition fence laws designate elected officials to be the “fence viewers” for their domain (e.g., a town’s supervisors are the fence viewers for that town). The fence viewers are not authorized to resolve boundary line disputes, or where the partition fence must be located. If neighbors get caught in a dispute over their boundary line they’ll either need to resolve it themselves or take it to court.

We’ll follow the fictitious story of the Hills and the Rhodes throughout this guide to help highlight some key particulars of boundary disputes involving new surveys.

The Hills have lived on their farmland for over 40 years. The adjoining property was recently purchased by the Rhodes, city dwellers who plan to someday move to the countryside. Abiding by all formalities of real estate transactions, the Rhodes had the property surveyed immediately after escrow closed. The survey revealed that the boundary line along the eastern side of the property was about 20 feet off from where the partition fence is located. Over 30 years ago, the Hills planted a row of deciduous trees within this 20-foot area as a windbreak. They are outraged by the thought of losing this part of their property. What are their options?

Getting news that you may lose part of your property is certainly frustrating. It’s tempting to act immediately by confronting your new neighbor with arguments and threats or to bypass any conversation and head straight to court. However, taking a more rational, strategic approach can pay off in the end, and perhaps avoid turning your neighbor into an enemy.

Consider how much the area in dispute is really worth

A good first step is to ask yourself what’s at stake. You’ll of course need to assess the financial implications. If the area in dispute is lost, will it dramatically affect the value of your property? Are there any improvements in the area, such as buildings, crops, windbreaks, fences, etc.? If so, how much are these improvements worth? Is it feasible to move them?

It may also be worth considering the emotional implications. Heated disputes between neighbors can be disrupting to the self, the families involved, and the whole community. Can the issue be resolved without creating hostility? Are you willing to try to find common ground to minimize emotional stress? You may decide that vehemently fighting over the area at issue is not worth it in the end.

Consider your legal options

Option #1: Adverse Possession

When it comes to boundary disputes, one legal concept that is helpful to know about is adverse possession. Under adverse possession, a landowner can gain title to parts of the adjoining property if certain factors are met—regardless of what any deed or licensed survey says. In Minnesota and Wisconsin, the factors required for adverse possession are established both by statute and the courts. In short, the landowner must have been:

• Using the property under the impression that no permission from the adjoining landowner was necessary or received;
• Taken over the property in a functional, real way and not just walking by occasionally;
• Using the property exclusively (neither the adjoining landowner nor anyone else who might have claimed they owned the land was using it);
• Using the property in an open and visible way (not in a covert manner); and
• Using the property for at least 15 years in Minnesota or 20 years in Wisconsin.

Adverse possession is not an easy legal subject, and consultation with an attorney is necessary to apply it to a specific situation. If the above criteria look potentially favorable to a farmer, a farmer should talk with an attorney as soon as possible.

Let’s turn to the Hills and the Rhodes to see how adverse possession may play out. First, the Hills didn’t think they needed and didn’t seek the permission of their neighbor to build the windbreak across the boundary line. That’s because they all thought the partition fence marked the boundary line! The mature deciduous trees would likely be considered substantial enough to meet the actual possession factor. Only the Hills use this area, so the possession is exclusive. The trees are clearly out in the open for all to see, including the Rhodes when they decided to purchase the property. The Hills planted the windbreak over 30 years ago, which is well within the required time frame. It’s likely that a court would conclude that all the factors are met. The Hills could probably gain title to that portion of land by claiming adverse possession.

Option #2: A prescriptive easement

The Hill’s might try to get a prescriptive easement to the 20 feet with the windbreak. A prescriptive easement would give them a legal right to use the pathway. They wouldn’t get legal title to it, though. Many farmers are familiar with the idea of an easement- for example, the Hill’s might have given the neighbors on the opposite side—the Skies—an easement for a driveway. Generally, an easement is the permission to use another’s property in a very formal way. A prescriptive easement is different in that the two parties don’t necessarily have to agree on the easement. While the Hills agreed to give the Skies a driveway easement, the Rhodes don’t have to agree to give the Hills a prescriptive easement to use the windbreak. The Hills can “force” it, so to speak, through the legal process. The process is like taking title by adverse possession, except that the Hills don’t need to demonstrate that they took over the property in a real and functional way.

Knowing the legal background only gets a farmer so far. If there is a dispute, just knowing what the law says isn’t enough—we need to incorporate that into a strategy to resolve it. Once you’ve considered how much the dispute is worth and have a sense of where you stand legally, you can better evaluate your options. The following provides an overview of some ways you can achieve resolution. Depending on your circumstances, you may choose to pursue one or a combination of these options.

Negotiate an agreed upon boundary line and prepare a quitclaim deed

You can always talk with your neighbors about whether they will give you legal title to the land, voluntarily. If you believe you have a strong claim for adverse possession or a prescriptive easement, letting your neighbors know about the legal doctrine and how the facts align in your favor may help persuade them. With some keen negotiating skills or by putting something of value on the table, you may be able to convince your neighbor to agree to the longstanding boundary line. When you understand your legal position, you can best plan a negotiation strategy.

If you succeed at reaching an agreement, you’ll want to be sure to put the agreement in the deeds on record. This is done by each neighbor preparing a quitclaim deed. The quitclaim deeds will need to describe the boundary line as clearly and precisely as possible to prevent any future confusion. The quitclaim deeds will then need to be signed and notarized, and then filed with the county recorder’s office. This will make it official and notify all future owners of the whereabouts of the legal boundary line. The guidance of an attorney is vital when preparing the quitclaim deeds to be sure everything is done correctly.

Farmers considering this process should be especially careful if the property being transferred involves a mortgage. The holder of the mortgage may need to be notified and provide permission beforehand. Some mortgages have clauses that allow the mortgage company to demand full and immediate payment of the entire loan if even a tiny piece of the property is transferred. A quitclaim deed transfers property, and could trigger this clause requiring the farmer to pay up immediately.

Call in a mediator for help in resolving the dispute

The neighbors could consider calling in an independent, neutral third party to help them resolve the boundary discrepancy. This can be done as a first step or, it may come into play if the parties are unable to successfully resolve the matter themselves.

Choosing mediation can be a good way to preserve the relationship and discover solutions not apparent to those directly involved. A good mediator will help focus the attention on the practicalities of the boundary discrepancy, which can help keep personal attacks and emotional outbreaks at bay. Mediation is often less expensive than drawn out litigation and takes less time. The mediator doesn’t have to be a professional. It could be another neighbor or respected community member. If the neighbors choose this route and come to an agreement, they’ll need to prepare and record quitclaim deeds as discussed above.

Take the matter to court

Farmers can certainly use the court process to create a final resolution. These “lawsuits” are generally referred to as a “quiet title action.” This option is likely the most expensive and time consuming option, as it involves hiring an attorney and following detailed procedures. The judge may order that another survey be conducted, which will be an additional expense and perhaps create even further conflict. If the farmer succeeds in court, the court’s order or decree will need to be filed with the county recorder’s office to make any transfer of title to the property and the boundary line official so that all future owners will know without a doubt.

Will the title insurance cover the dispute?

Most title insurance policies have an exclusion for boundary disputes. Nevertheless, it’s worth reviewing your policy or contacting your insurance agent to ask if they will provide legal representation to resolve the dispute.

When any discrepancy arises over a boundary line it’s generally best, if possible, to keep the lines of communication open with your neighbor. The neighbor most likely has an interest in resolving the matter without hostility, and open communication is a good way to ensure this. In addition, boundary line discrepancies seem to worsen over time. All sorts of complications and issues can arise when you sell the land and can carry on to future owners. It’s best to take the time to officially resolve the matter once and for all.

For more tips on negotiations, see Farm Commons’ resource Farmer’s Guide to Negotiating and Drafting Agreements.