I bought my farm and part of the fence has been there for years the (last two owners for sure). Now I come to sell, and my neighbor did a survey and part of the fence is on his land and he want me to have it gone right away. Do I have to take it down? Who is responsible for moving the fence?
2 Answers from Attorneys
You should not take it down as you may have rights to that land. You may have a claim against that property through "adverse possession" which requires proof of several elements, the most important being possession for at least 15 years. You may also have established rights to that property through a legal doctrine called "Boundary by Practical Location" which is a way to establish boundary lines in one of 3 ways: (1) acquiescence; (2) agreement; and, (3) estoppel. You should contact me immediately to discuss further if you have a case against your neighbor and the best course of action.
It is possible that the fence has "become the true boundary". It would, likely, take an action to establish that for certain. There are many issues here. For instance, if you are selling, what does your buyer want to do? How long has the fence been there? How long have the properties been in separate ownership? Is the land abstract title or Torrens title? Have you reviewed the survey which your neighbor says shows the fence to be "part on his land".
Do not offer to purchase the offending strip at this stage of the game.
You should consult an attorney to review the facts and (preferably) the new survey before deciding on a course of action.