Dealing with Fence Encroachment in Washington: Practical Solutions for Neighbor Disputes

Understanding Fence Encroachment in Washington State

Fence disputes are a common source of friction between neighbors. In Washington State, knowing your rights and responsibilities regarding fences, especially when encroachment occurs, is crucial for maintaining amicable relationships and protecting your property.

What Constitutes Fence Encroachment?

Encroachment occurs when a fence is built or extends onto a neighboring property beyond the legal boundary line. This means the fence isn't solely on one property but crosses over the line, occupying a portion of the adjacent land. It can be unintentional, arising from inaccurate surveys or misunderstandings about property lines, or it can be deliberate.

Washington State Law and Fences: Key Considerations

Washington law addresses fences through statutes like RCW 16.60, which deals primarily with agricultural fencing. While not directly addressing residential fences in the same detail, established legal principles apply:

• 🏡 Property Lines are Paramount: The legally recorded property lines, established through surveys and deeds, dictate where a fence can be built. A fence must be entirely on one property unless there is a written agreement between neighbors.
• 🤝 Agreement Trumps All: If neighbors mutually agree on a fence's location, even if it deviates from the property line, a written agreement makes that agreement binding.
• ⚖️ Adverse Possession and Prescriptive Easement: These legal doctrines can complicate matters. If a fence has encroached for a long time (typically 10 years in Washington) and certain conditions are met (open, notorious, hostile, continuous use), the encroaching neighbor might gain legal rights to the land occupied by the fence.

Determining the Property Line: The Crucial First Step

Before addressing a potential encroachment, verify the actual property line. Do not rely on assumptions or old markers. Here’s how:

• 🗺️ Review Your Deed and Survey: Your property deed should contain a legal description of your property. A survey, if available, provides a visual representation of the boundaries. Look for markers or pins that indicate the corners of your property.
• 🔍 Check County Records: The county recorder's office (often part of the assessor's or auditor's office) holds official property records, including deeds and surveys.
• 👷 Hire a Licensed Surveyor: This is the most accurate way to determine your property line. A surveyor will use precise instruments to locate and mark the boundaries based on the legal description in your deed. This is particularly important if the existing markers are missing or disputed. Expect to pay several hundred to several thousand dollars for a survey, depending on the property size and complexity.

Addressing Fence Encroachment: Practical Strategies

Once you've confirmed the encroachment, consider these steps:

1. 🗣️ Communicate with Your Neighbor: Start by calmly and respectfully discussing the issue with your neighbor. Present the survey results or other evidence that supports your claim. They may be unaware of the encroachment. Explain the impact the encroachment has on your property. A friendly conversation can often resolve the issue without legal action.
2. ✉️ Send a Formal Written Notice: If the initial conversation doesn't resolve the matter, send a certified letter detailing the encroachment, referencing the survey, and stating your desired outcome (e.g., fence removal, relocation, or an encroachment agreement). This creates a formal record of your communication.
3. 🤝 Consider Mediation: Mediation involves a neutral third party who helps facilitate a discussion between you and your neighbor. A mediator can assist in finding a mutually agreeable solution without going to court. Many counties offer low-cost or free mediation services.
4. 📜 Encroachment Agreement: You and your neighbor could agree to let the fence remain where it is. This agreement should be in writing, signed by both parties, and recorded with the county. It clarifies that you allow the encroachment but retain ownership of the land. It should also address future maintenance and replacement of the fence. This can be a good option if moving the fence would be difficult or costly.
5. 🏛️ Legal Action: If all else fails, you may need to file a lawsuit to quiet title or for trespass. A quiet title action asks the court to determine the legal owner of the disputed property. A trespass action seeks to stop the neighbor from continuing to encroach on your land. This is generally a last resort due to the cost and time involved.

Possible Compensations and Remedies

If a fence encroaches on your property, you might be entitled to compensation or other remedies, depending on the circumstances:

• 💰 Damages: You may be able to recover damages for the loss of use and enjoyment of the encroached land. This could include the fair rental value of the land or any actual damages you've suffered as a result of the encroachment (e.g., damage to landscaping).
• 🚧 Injunction: A court can order your neighbor to remove or relocate the fence. This is a common remedy in encroachment cases.
• ⚖️ Negotiated Settlement: In some cases, you might negotiate a settlement where your neighbor pays you for an easement allowing the fence to remain, or you sell them the portion of your land that's being encroached upon.

Adverse Possession and Prescriptive Easements: The Long-Term Encroachment

As mentioned earlier, adverse possession and prescriptive easements can significantly impact fence encroachment disputes. Here's a more detailed look:

Adverse Possession

Under Washington law, to claim land through adverse possession, the encroaching party must prove the following elements for a period of 10 years:

• 🔓 Open and Notorious: The possession must be visible and obvious to the true owner, as if the encroacher is the owner.
• 💪 Hostile: The possession must be without the true owner's permission. This doesn't necessarily mean there's animosity, but rather that the possession is inconsistent with the true owner's rights.
• 📍 Actual: The encroacher must physically possess the land, such as by building a fence or using the land.
• ⏳ Continuous: The possession must be uninterrupted for the entire 10-year period.
• Exclusive: The possession must be exclusive, meaning the encroacher must possess the land as if it's their own and prevent others, including the true owner, from using it.

Prescriptive Easement

A prescriptive easement is similar to adverse possession but grants the encroacher the right to *use* the land for a specific purpose (e.g., maintaining a fence), rather than ownership of the land itself. The elements are generally the same as for adverse possession (open, notorious, hostile, continuous) but do not typically require exclusivity.

Preventing Fence Encroachment: Proactive Measures

Taking proactive steps can help prevent fence encroachment issues from arising in the first place:

• 📝 Before Building, Get a Survey: Always get a professional survey before building a fence, especially if you're unsure about your property lines.
• 🤝 Communicate with Your Neighbor: Talk to your neighbor about your plans before building a fence. Share the survey results and discuss the fence's proposed location.
• ✍️ Document Everything: Keep records of all communications, agreements, and survey results.
• 🔎 Regularly Inspect Your Property Lines: Periodically check your property lines to ensure that no encroachments have occurred.
• 📜 Written Agreements: If you and your neighbor agree on a fence location that differs from the actual property line, put the agreement in writing and record it with the county.

The Role of Local Ordinances and HOA Rules

In addition to state law, local city and county ordinances, as well as homeowner association (HOA) rules, can impact fence regulations. These regulations may address:

• 📏 Fence Height: Maximum allowable fence height.
• 🧱 Fence Materials: Permitted and prohibited fence materials.
• 📍 Setbacks: Required distance from property lines or streets.
• 🎨 Aesthetics: Restrictions on fence color or design.
• 🚧 Permitting: Requirements for obtaining a building permit before constructing a fence.

Always check with your local government and HOA before building a fence to ensure compliance with all applicable regulations. Failure to comply can result in fines, orders to remove the fence, or other penalties.

Cost Considerations in Resolving Fence Encroachment

Resolving fence encroachment disputes can involve various costs, including:

• 👷 Survey Costs: As mentioned, a survey can cost several hundred to several thousand dollars.
• ⚖️ Legal Fees: Attorney's fees can vary widely depending on the complexity of the case and the attorney's hourly rate. Litigation can be expensive.
• 🔨 Fence Removal or Relocation: The cost of removing or relocating a fence depends on its size, materials, and the complexity of the job.
• 🏛️ Mediation Fees: Mediation services can range from free to several hundred dollars per session.

Consider these costs when evaluating your options for resolving a fence encroachment dispute. Sometimes, a negotiated settlement or compromise can be more cost-effective than pursuing legal action.

Case Studies in Washington State (Hypothetical)

Case Study 1: The Unintentional Encroachment

Mr. and Mrs. Smith built a fence based on what they believed was the property line. Years later, their neighbor, Ms. Jones, had a survey done and discovered the fence encroached onto her property by two feet. The Smiths were unaware of the encroachment. Resolution: The Smiths and Ms. Jones communicated openly and agreed to share the cost of moving the fence to the correct property line. This avoided legal action and preserved their neighborly relationship.

Case Study 2: The Disputed Boundary

Two neighbors, Mr. Brown and Mr. Green, disagreed about the location of their property line. Mr. Brown believed the fence was on the correct line, while Mr. Green insisted it encroached. Resolution: They hired a surveyor to determine the official property line. The survey confirmed that the fence encroached. Mr. Brown refused to move the fence, claiming adverse possession. Mr. Green filed a lawsuit to quiet title. The court ruled in favor of Mr. Green, as Mr. Brown could not prove the "hostile" element of adverse possession because there was no evidence Mr. Green ever contested the fence location for a long period of time prior to filing suit. The court ordered Mr. Brown to remove the fence.

Conclusion

Fence encroachment disputes can be challenging, but understanding Washington law, communicating effectively with your neighbor, and exploring all available options can lead to a resolution that protects your property rights while preserving neighborhood harmony. Always seek professional advice when dealing with these complex issues.

Disclaimer: This article is for informational purposes only. You should consult with an attorney to discuss your specific situation.