Adverse Possession May Apply in Case

Question: I live in the Encanto area of Phoenix. A stone fence has existed between my house and my neighbor’s house since the early 1920s when the homes in our neighborhood were built. For some reason, my neighbor recently hired a surveyor to survey his property. This survey shows that my neighbor’s property line is two feet over the stone fence onto my property. My neighbor says that he will give me a deed to this two feet if I will pay one-half of the cost of a new fence between my house and his house. I am very happy with the stone fence, and I don’t have the money anyhow to pay for a new fence. Do I have to agree to this blackmail by my neighbor?

Answer: Probably not. If the stone fence was built more than 10 years ago, and you were never given permission to use the two feet on your side of the stone fence, you should have ownership of this two feet by adverse possession. Unless you can get your neighbor now to agree to a deed conveying this two feet of property, however, you will have to file a quiet title lawsuit to get a court order that you own this two feet. Otherwise, when you sell your home you will have to disclose to the buyer that you do not have marketable title to this two feet, and that the buyer may have to file a quiet title lawsuit to get marketable title.