What to Do About Fence Encroachment in Oregon

Understanding Fence Encroachment in Oregon

Neighborly relations can be strained when property lines become blurred, especially concerning fences. In Oregon, disputes over fence encroachment are a common source of tension between homeowners. Understanding your rights and responsibilities is crucial to navigating these situations effectively. This article aims to provide Oregon homeowners with a comprehensive guide to dealing with fence encroachment disputes.

📍What is Fence Encroachment?

Fence encroachment occurs when a fence is built partially or entirely on a neighboring property. Even a few inches can lead to significant legal and practical issues. In Oregon, property lines are typically established through surveys and recorded deeds. Any deviation from these established lines constitutes an encroachment.

📜Oregon Laws Regarding Fences and Property Lines

Oregon law addresses fence construction and maintenance, particularly concerning "partition fences" – those built on the boundary line between properties. Here's a breakdown:

• ORS 92.010 - 92.192 (Subdivision and Partition Land): While primarily dealing with land division, these statutes can indirectly affect fence line determination and disputes. Accurate surveys are vital in these processes.
• ORS 96.010 - 96.990 (Fences): This section covers various aspects of fences, including construction, maintenance, and liability for damage. While it doesn't explicitly define "encroachment," it lays the groundwork for resolving disputes arising from fence location.

Key Aspects of Oregon Fence Law:

• ✔️Shared Responsibility: Oregon generally holds both property owners responsible for maintaining a partition fence.
• ✔️Notice Requirement: If you plan to build or repair a partition fence, you typically need to provide notice to your neighbor. This allows for discussion and agreement on the fence's placement and cost.
• ✔️Dispute Resolution: If neighbors can't agree, Oregon law provides a mechanism for resolving disputes through mediation or arbitration.

🚧Identifying Fence Encroachment: A Step-by-Step Guide

Determining whether a fence encroaches on your property requires careful investigation:

1. Review Your Property Deed: Your deed contains a legal description of your property boundaries. This is the starting point.
2. Consult Your Plat Map: A plat map (if available) provides a visual representation of your property and its boundaries in relation to neighboring properties.
3. Locate Property Corner Markers: Look for metal or concrete markers at the corners of your property. These markers, often set during the original subdivision, are critical reference points. They might be buried slightly below the surface.
4. Hire a Licensed Surveyor: This is the most accurate way to determine your property lines and identify any encroachment. A surveyor will use specialized equipment to precisely map the boundaries and provide a legally defensible survey. The cost can range from several hundred to several thousand dollars, depending on the complexity of the survey.

💰Potential Compensations and Remedies in Oregon

If a fence encroaches on your property in Oregon, several legal remedies might be available:

• ⚖️Negotiation: The first step should always be to communicate with your neighbor and attempt to reach a mutually agreeable solution. This could involve adjusting the fence line or compensating you for the encroached area.
• 🤝Mediation: A neutral third party can help facilitate a discussion and find common ground. Many Oregon counties offer mediation services.
• 📜Quiet Title Action: This is a legal action to establish clear ownership of the disputed property. It's typically used when negotiation and mediation fail. A quiet title action can be complex and expensive, requiring the assistance of an attorney.
• 💸Trespass Claim: You can sue your neighbor for trespass if the fence is on your property without your permission. Damages could include compensation for the use of your land.
• 🏡Ejectment: This legal action seeks to remove the encroaching fence from your property.

📍Adverse Possession: A Complicating Factor in Oregon

Adverse possession is a legal doctrine that allows someone to gain ownership of another person's property by openly and continuously possessing it for a specific period. In Oregon, the requirements for adverse possession are strict:

• ✔️Open and Notorious: The possession must be visible and obvious to the true owner.
• ✔️Actual: The person claiming adverse possession must physically occupy the property.
• ✔️Exclusive: The possession must be exclusive, meaning the person claiming adverse possession cannot share possession with the true owner or the public.
• ✔️Hostile: The possession must be without the permission of the true owner.
• ✔️Continuous: The possession must be continuous for a period of 10 years (under ORS 105.620). Payment of property taxes on the disputed area is also a requirement.

Important Note: If a fence has been encroaching on your property for over 10 years, and the other requirements of adverse possession are met, your neighbor might have a legal claim to the encroached area. This highlights the importance of addressing encroachment issues promptly.

🤝Strategies for Resolving Fence Disputes Amicably

While legal action might be necessary in some cases, it's generally best to try to resolve fence disputes amicably. Here are some strategies:

• 💬Communicate Openly: Talk to your neighbor calmly and respectfully. Explain your concerns and listen to their perspective.
• 🤝Compromise: Be willing to compromise to find a solution that works for both of you. Consider splitting the cost of a new survey or adjusting the fence line slightly.
• ✍️Document Everything: Keep records of all communications, agreements, and expenses related to the fence.
• 🏡Consider the Relationship: Think about the long-term impact of the dispute on your relationship with your neighbor. Sometimes, it's worth making concessions to maintain good relations.

📝 Drafting a Fence Agreement in Oregon

If you and your neighbor reach an agreement regarding a fence, it's crucial to put it in writing. A fence agreement should include:

• 📌Names and Addresses: The full legal names and addresses of both property owners.
• 📌Property Descriptions: A clear description of both properties, including legal descriptions.
• 📌Fence Location: A precise description of the fence's location, preferably based on a survey.
• 📌Fence Specifications: Details about the type of fence, height, and materials.
• 📌Maintenance Responsibilities: An agreement on who is responsible for maintaining the fence.
• 📌Cost Sharing: A clear agreement on how the cost of construction, repair, or replacement will be shared.
• 📌Signatures and Dates: Signatures of both property owners, dated and notarized.

It's recommended to have a real estate attorney review the fence agreement before it's signed to ensure it's legally sound and protects your interests. Consider recording the agreement with the county recorder's office to provide notice to future property owners.

🔨Building a New Fence: Oregon Requirements and Considerations

Before building a new fence in Oregon, consider the following:

• 📏Local Ordinances: Check with your city or county planning department for any specific regulations regarding fence height, materials, and setbacks. Some areas have restrictions on fence types (e.g., chain-link fences in certain residential zones).
• 🚧Permits: Some jurisdictions require permits for fence construction. Failure to obtain a permit can result in fines or orders to remove the fence.
• 📞Utility Lines: Before digging, call 811 to have underground utility lines marked. This will prevent accidental damage and potential injury.
• 🤝Neighborly Communication: Even if not legally required, it's courteous to inform your neighbor of your plans to build a fence. This can prevent misunderstandings and maintain good relations.

📍Practical Advice for Oregon Homeowners Facing Fence Disputes

• ✔️Act Promptly: Don't delay addressing a fence encroachment issue. The longer you wait, the more complicated it can become, especially with the possibility of adverse possession claims.
• ✔️Gather Evidence: Document everything, including photos, surveys, and communications with your neighbor.
• ✔️Seek Legal Advice: If you're unsure of your rights or the best course of action, consult with an Oregon real estate attorney.
• ✔️Be Reasonable: Approach the situation with a willingness to compromise. Remember that maintaining a positive relationship with your neighbor is often worth more than winning a legal battle.
• ✔️Consider Title Insurance: Review your title insurance policy. It might offer some protection or coverage for boundary disputes.

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