Do good fences really make good neighbors?
By Powell G. Ogletree, Jr. Adams and Reese LLP
When walking across your forestland you find your new neighbor has begun constructing a fence across the actual property line creating an encroachment upon your property.
1. Chocolate Pie Mediation
Take your neighbor a chocolate pie and talk about the issue as neighbors should do with each other. You may be able to talk them into moving the fence to the acknowledged and historic property line. It is difficult for them to be angry about property lines when both of you are eating chocolate pie. If all else fails, you know you tried to work it out before pursuing other options.
2. Nice Letter
Write the neighbor a nice letter (one that is not angry, is not argumentative, but is positive, factual and is the type good neighbors write to each other). Send it by regular mail (not certified, return receipt requested). Ask that the fence be moved and mention your meeting in person and the chocolate pie (if you brought one). Perhaps the neighbor will move the fence.
3. Lawyer Nice Letter
Engage a lawyer who is experienced in forestry law to write a nice letter. It should be attached to a copy of your nice letter and explain the legal basis for the lawyer's request that the fence be moved. (NOTE: To save yourself some legal fees, at the first meeting take your lawyer a copy of your deed, a copy of any survey of the line [if one exists], a copy of your neighbor's deed [the chancery clerk can help you find this usually with or without a chocolate pie], a copy of the tax map that shows the disputed line [the tax assessor and/or tax collector can help you find this], a photograph of the fence being constructed, and other information that will help the lawyer write the letter. This letter will be sent certified mail, return receipt requested. Perhaps the neighbor will move the fence. No matter what happens, work to keep a cordial relationship with the neighbor. If everyone is angry you will greatly reduce your chance of resolving this short of litigation.
4. Lease or Written Acknowledgment
Your neighbor may agree that the fence is in the wrong place but the cost to move it is too high. You can obtain a written acknowledgment of this error or lease the property to the neighbor. The neighbor needs to sign the applicable document. Ask your lawyer to prepare either document and decide whether it should be filed in the land records. If you resolve the problem in this manner, the fence will not be moved but should not cause a problem in the future.
5. Notice to Chancery Clerk
Have your lawyer prepare and file with the Chancery Clerk of the county (and judicial district if applicable) a notice that the fence encroaches on your property and was built without your permission. Tell the lawyer (if he or she doesn't know already) that the applicable statute is Miss. Code Ann. Section 15-1-13(2). You will sign this form before a notary public. Your lawyer should send a second nice letter to the neighbor enclosing a copy of the “filed” notice to the clerk and explaining that the encroachment will not ripen into adverse possession because you have filed this notice. No lawsuit is required under the statute. You can stop with this option although you will still have the fence encroaching on your property.
Evaluate the cost of litigation and the value of the property encroached upon by the fence. Determine the value of the property under the fence. Ask the lawyer to estimate the cost of litigation and to explain to you what you will be required to do to pursue litigation (pay the lawyer real American dollars, spend your time, undergo additional stress in your life, etc.). If it is worth it, have the lawyer write an additional letter (certified mail, return receipt requested). This letter will explain that the lawyer will file suit if the fence is not moved and you will seek attorney’s fees from the neighbor because there is no factual basis for the neighbor to build and maintain a fence that encroaches upon your property. The letter will give them a deadline to move the fence and request a meeting to discuss any basis that the neighbor believes may exist for the construction and maintenance of the fence where it is located. This will give you the best chance of recovering attorneys’ fees although they are rarely granted by a court and you should not file the suit counting on recovering the fees you pay your lawyer and other costs of litigation. Those costs will often include the cost of a survey and other expert fees. You should also ask the lawyer to advise you as to whether there are options for mediating the dispute or arbitrating it. Many judges suggest mediation. Arbitration will not be required by a court but can be agreed to by the parties. Perhaps the litigation (or mediation or arbitration) will result in the court ordering the fence being removed from your property and the neighbor being prohibited from building it again on your property.
Reprinted with permission of the author, 3/22/10.