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Property Line
Anonymous2 views3 answers
We live outside the city limits of Rogue River in Jackson County, Oregon.
In 2005 we purchased a home on about 6 acres from a seller who also owned three other parcels of land adjacent to the one we purchased. During our negotiating for the house we requested several other additional items be included in the total purchase price. These items included porches and decks made of specific materials, a cement path and vinyl fencing along the front of the house with several gates leading out to a pre-existing graveled mutual access road. These requests were included as part of the signed purchase agreement. The contract, signed by both parties, stated that the seller will include in the purchase price of the property a vinyl horse-type fence that would run along the entire front length of the lot on the property line. This fencing was installed and finished by the time we concluded the purchase and took possession of the house.
Last year we purchased one of the additional vacant lots from the same seller. This lot is located across the mutual access road from our present residence. The seller is now trying to sell the other two lots and is trying to tell us that the vinyl fencing that he had put up in 2005, as part of our signed purchase agreement, is not actually on our property line. He is now stating that our property line is actually 50 feet further in on the front of our property.
We know for a fact that this seller knew where the property lines were at the time we purchased our home, because he started to cut roads back in 2002 on these properties and found that he was laying a road on property he thought he owned, but did not. He later purchased this in question lot and had all of the lots surveyed and marked. However, apparently in an effort to sell the lot we initially bought, he lied about the actual property lines. We had no reason to doubt what he was saying when we knew that he owned all the adjacent lots and was willing to sign a contract stating that he would erect a vinyl fence on our front property line as part of the sale.
What legal recourses are available to us? Can we sue to have this land incorporated into our property due to the time that the fence has been standing? Do we have a right to claim damages if this is not possible? We will be losing a significant portion of our front yard if we are forced to move the fence!
The title to your property that was recorded with the county office will describe the specific parcel that you bought back in 2005, and the recorded title to your 2011 property will describe that specific parcel. The title will determine where your property line is. So you may very well have the fence in the correct spot. In such a case you may need to hire an attorney and take specific actions to protect your rights against the other party's actions.
If your fence is in the wrong place then you may have a bigger challenge in retaining that land. You may be able to bring an action for a fraudulent land sale or some other action with various possible remedies, much of it will depend on what you should have known and when you should have known it, statutes of limitations issues may arise, etc. Thus you need to hire an experienced real estate attorney asap to protect your rights. Your fence has not been up long enough or under the required circumstances for you to have title to the extra footage by adverse possession or some other property concept.
This is the kind of question that is very difficult to answer in this type of informal internet format. If you were my client I would want to ask you a lot of questions about the purchase, look at the real estate purchase document, and review any related correspondence between and the seller, before I would feel comfortable making any legal conclusions.
You bought a piece of property that had a title with a legal description. You always had the right to have the property surveyed or review current surveys if knowing exactly where the property line was and how it related to the fence was important to your purchase. I can't tell without a more thorough inquiry if the seller did something deliberately misleading.
For there to be actionable fraud you have to prove, that even if something was misrepresented, 1. the misrepresentation was intended, 2. you reasonably relied on that misrepresentation and 3. you were injured. So if the seller sold you x number of acres, and you got x number of acres you might not be injured, except for the cost of moving the fence to the proper location which the seller would probably owe you.
Another aspect of any legal problem is the practical aspect. Lawsuits are expensive and can drag on for years which can be very stressful. I would strongly recommend that you see if there is some type of collaborative solution. Would the seller sell you the strip of land to complete your property to the fence line for a bargain price? Normally these types of solutions are much cheaper then the legal battle to prove you are right. I would expect there to be the cost of a survey and the paper work to deed the strip and any land rules that need to be complied with to transfer the strip. Work these costs into the deal. Another alternative is to purchase and easement to the the strip so you have the ongoing right to have the fence and use the property. Maybe the easement will be personal to you and you will release it when you sell the property - maybe not. These points could be negotiated. (You may already have established some form of easement by your use - but this would require some research.)
Proving adverse possession in Oregon can be very difficult and requires the possession to have occurred for 10 years - you are only at year 7. Here is the statute: http://www.oregonlaws.org/ors/105.620. This is one of those laws that you have to read cases interpreting it to figure out what it really means.
Bottom line - see a lawyer. If you want to fight, be prepared to spend a lot of money. If you can live with some sort of compromise, that is your cheapest option in the long run.
I am not sure, but it sounds as though the fence was constructed AFTER you had agreed to buy the property, in which case I don't see a successful fraud or misrepresentation claim in your future. Similarly, you probably do not have a right to reform the agreement and the deed to place the boundary where the fence is, unless you can show that the fence location was always intended to be the boundary location. You might have had a good adverse possession case, since you had a valid good faith reason for believing the fence to be the true boundary, but you have not been in possession for 10 years. If you can hold on until then, you might perfect an adverse possession claim.
You might, however, have a claim that this became the boundary by agreement (sometimes referred to as practical location). However, the existence of survey markers tends to negate this.
I don't know how much is at stake in connection with this 50 foot strip. It may or may not be the cost of a legal action. I would recommend that you contact a local attorney experienced in boundary line disputes and further analyze your claim. You may be able to make a compromise with the other party without legal action.
