Checked the dimensions and plat maps. I do trust that this survey is accurate–everything lines up with their survey lines–not my fence. There has always been access to the school here since the subdivision was built. It used to be open, but previous owner put in gate to hide appearance of access —so only kids from this cul de sac would go through there. I have no problem with neighbors’ kids using the gate–I want to encourage walking to school (rather than driving a mile or so to get out of the subdivision). And I will have kids in the school for the next 8 years (if I stay here/live that long 
). So I guess I need to talk to someone about preserving that access. It seems most likely that if someone built a home on that lot, that they would want to enclose the school side of their property completely.
Now that I realize it is not “my” fence, the question is, for 2K and permission of the actual “owner,” do I want it? Should I have this fence put inside my property now and not wait/see what will happen?
I am a real estate attorney in Michigan.
In Michigan, there are two separate scenarios which would address your situation, adverse possession and acquiescence. First, the basis for a claim in adverse possession is statutory, i.e. state law and requires “possession that is actual, visible, open, notorious, exclusive, hostile and under claim of right, and continuous and uninterrupted for the statutory period of 15 years.” Second, “(A)cquiescence is a doctrine adopted by the courts to assist in the resolution of boundary line disputes. The doctrine operates under the principle that when a boundary line has been accepted by the parties, their resolution should stand.”
Please consult an experienced real estate attorney in your area. Each state has very different laws regarding real property disputes.
So…
Tear down the fence.
Get a survey done.
Don’t pay for a survey. You are fine with their survey.
Be proactive! Get a lawyer.
No reason to be proactive. Time is on your side. Just wait and see.
It’s not your fence, not your problem.
Hey, maybe you could salvage the fence and move it to your property.
Get the developer to pay to move your fence after a subtle hint that you are considering adverse possession.
That fence is old. See if you can get the developer to build you a new one after you drop that adverse possession hint.
You don’t need a lawyer. That’s just another unnecessary expense.
Easements.
School access.
Etc.
Yikes, I could see how the OP could be tearing out her hair right about now.
Once issue of access to school property came up, I switched to the “cover your tush and get a legal consult” camp. this could be a bigger headache than one might realize.
Well I think the first issue is for the OP to decide if she wants the fence or not. It appears if she does, she’ll have to move it. I think it’s unlikely anyone will let her claim the extra yard space. We have fences on two sides of us that are not on the property line. One of them allows us to an adequate driveway and I’d definitely consult a lawyer if anyone wanted to relocate it. It’s an ugly chainlink fence which I’d love to replace, but since parts of it are on the neighbor’s property I’m reluctant to do anything about it. The other is a neighbor who has put his fence on the uphill part of the property. The lower neighbor has a retaining wall on the property line. There is a good thirty feet of “no man’s land” that we use for the messiest compost (hedge trimmings and the like), but in that case if the neighbor complained I’d move the compost.
Consult a local real estate attorney. You may have more leverage than you realize in this situation.
Forget the school access issue. Once another house is built on the property behind…that is likely to NOT be available anyway.
Get a copy of your deed. Get a copy of the developer’s deed.
See an attorney. The mere fact that you have legal representation may stop the developer from trying to push you around. This is the kind of situation in which a compromise is best. And I’d think the POA would want to join in the effort to preserve school access.
I agree with UMDAD (post #61). My understanding is that most states recognize both adverse possession and acquiesence in some form, though the exact rules may vary. My law professor friends tell me both adverse possession and acquiescence are ways of giving legal recognition to long-settled expectations about where property lines are, even if the property line was originally somewhere else. So under either doctrine, there’s a good chance that you already do own the land out to the present fence line, if you care to press that claim. But you’ll need a real estate attorney to help you sort out the particulars
Property laws differ among states. In some states, there would be no mention of a fence in a deed and no permit required to construct a fence. Also, individual lot surveys are not always recorded in land records.
Look for your owners title insurance policy, deed and any surveys among your closing documents. Then contact a local real estate attorney.
One possibility is that even if the developer tears down your fence and doesn’t replace it whoever moves into the new house behind you may want a new fence and may be willing to split the cost with you. Befriend them and they may be willing to put in a gate so you can visit each other!
The other thing you probably want to avoid, if you can, is the construction damaging any of your property. A former neighbor had a creek behind his house. Nearby construction interrupted the flow of the creek and caused some flooding in rainstorms. I know you don’t want to spend money, but a consultation is a good thing. I agree that the builder getting a letter from an attorney will help you. Will your HOA/POA help you with the legal consultation since they may have a vested interest in maintaining school access for your neighborhood?
Good thing there are attorneys around now days to sort stuff like this out. In the old days out west a border dispute would be settled at high noon with a gun fight or you had to stampede with your cattle herd the other guys place to run him off. Now you can just draw out your checkbook and pay a lawyer to help you.
[QUOTE=""]
Another issue is that there is a gate on this fence which opens to school property. But now I see that my actual yard only borders school property at one point. If I put a fence straight across my property line, and put a gate in it, it would then open into the other yard. So it looks like kids from this street will lose access to the school property.
[/QUOTE]
Maybe contact the school or district about this potential problem. If the school or district expects these kids to walk and not be bussed, then they might want the city to insist that this developer maintain or allow access to the school.
@atomom Are you saying that up until now, the school children on your street walk thru your backyard to this fence, and then open the gate, in order to continue their walk to school?
I’m trying to imagine this. Are you at the end of a cul de sac?
This fence only runs along the back, it’s not connected to any side yard fences, right? Do you have a very huge yard? The fence has a beginning and an end (obviously), so what’s to keep the kids from walking around the fence? Why do they even need to use a gate?
I don’t really want to get into adverse possession. (I have a couple other things to tear out my hair about right now–fence is a minor annoyance. Fence Co. lady with 30 years experience warned me that she’s never seen anyone win these. But from what I read about the laws in our state, which I believe are just the same as those in MI, UMDAD, it seems this may qualify/fit all the criteria.) I probably will call a real estate lawyer that my realtor neighbor recommends to check on it, but the last thing I want is more conflict/stress/time spent on this. And if it is going to cost me more than $2K to possess the property and keep the fence, it would be a lot easier and less complicated to move the fence. (Then I won’t worry about the developer sending someone to slash my tires or worse. . .)
Probably talk to the POA or school district about access to school property.
To make matters a little more complicated, you can’t adversely possess property that belongs to the government, so if any of this belongs to the school, you can’t claim against it. More likely, the students have established a use easement for access to and from the school over your property and the developer’s. That’s a battle for the school to fight.
The property I could possibly adversely possess belongs to the developer only, none to the school. While I now have access to the school property through a gate on what I thought was my property, the survey shows that the entire fence, including the gate, are on the developer’s property.
Maybe you covered this but does the fence have a name plate for the company that installed it? If so, maybe that company has record of who paid for the fence and what survey lines (or not) were used.
<<<
While I now have access to the school property through a gate on what I thought was my property, the survey shows that the entire fence, including the gate, are on the developer’s property.
<<<
Fine, but are the neighborhood children using that gate to get to school? Do kids walk thru your yard and use that gate to get to school? Is it possible that the school put up that fence and gate to direct kids to enter at a particular point (where the gate is)?
Just a warning re: adverse possession claims. We have a boundary dispute situation with a neighbor and have a good claim for adverse possession, but have been informed by both our lawyer and surveyor that these cases can run up $50,000 or more in legal bills and can take years to litigate. And there’s no guarantee you will win.