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I purchased my property in 2016. My current neighbor purchased his in 2019. The current fence between our properties had been installed some time ago, presumably by the respective previous owners. I want to install a new fence along the correct property line, which would allow me to slightly expand my lot. I had a survey done confirming the location of the property line. Current owner is opposed to moving the fence, since it would disadvantage him. Adverse possession in my area is 15 years. Can the current owner make a successful claim of adverse possession on the fact that the fence likely existing like this for more than 15 years between the previous owners?

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    How wide of a strip of land is in dispute? What is on the reluctant neighbor's side that they are attempting to assert ownership over? Do any structures encroach onto your side? It would seem that the fence is yours to dismantle, removing any evidence of an implied boundary... but then what? May 8, 2023 at 23:32

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Can the current owner make a successful claim of adverse possession on the fact that the fence likely existing like this for more than 15 years between the previous owners?

Yes. This is called "tacking". Everyone in the current owners' chain of title is considered for purposes of an adverse possession period.

If a preponderance of the evidence (or other burden of proof established under state law which varies from state to state) establishes that the fence is more than fifteen years old when the adverse possession/quiet title lawsuit is commenced, the adverse possession claim will probably prevail.

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  • It would seem that "use" and "possess" and "occupy" are key components of any claim. Presuming that there is only some small strip of land in dispute, how might the advantaged neighbor justify that strip as their own other than possibly occasionally mowing it? May 8, 2023 at 23:14
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    @MichaelHall Enclosure within a fence would normally satisfy the open, notorious and hostile use and possession prong of adverse possession without further evidence. It is really the paradigmatic case.
    – ohwilleke
    May 8, 2023 at 23:19
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    @MichaelHall Ownership of the fence would be based on the historical facts available, and in the absence of evidence would probably be presumed to be jointly owned. The burden of proof would vary somewhat according to state law. Not all states use the preponderance of the evidence standard in adverse possession lawsuits, although most do, and most place the burden of proof on the party seeking relief. But, one could also introduce a survey to meet the burden of proof for the person seeking to avoid adverse possession and then put it on the other party to overcome it.
    – ohwilleke
    May 8, 2023 at 23:35
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    @bdb484, I'd consider it a conditional "if - then" counter claim: If the judge determines that section is yours for all the years you mowed it, then I'm entitled to compensation for all the years I paid taxes on it. May 9, 2023 at 23:15
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    That's sort of what I was thinking. Assuming unjust-enrichment or something else is a viable theory of recovery, I assume it wouldn't be much of a threat once you eliminate the property taxes: (1) that are outside the SOL; (2) that were paid before neighbor moved in; (3) that OP didn't pay himself; and (4) that are assessed on portions of the property other than this tiny strip of adversely possessed land.
    – bdb484
    May 10, 2023 at 14:08

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