Neighbor's Fence on Your Property in Missouri? What Are Your Legal Options?

Understanding Neighbor's Fence Encroachment in Missouri

A fence, designed to delineate property lines and provide privacy, can quickly become a source of contention when it crosses over into a neighbor's land. In Missouri, fence encroachment is a common dispute that can lead to significant legal headaches if not addressed properly. This article will guide you through the complexities of fence encroachment in the Show-Me State, offering practical legal advice, outlining potential risks, and suggesting actionable steps to protect your property rights.

What Exactly is Fence Encroachment?

Simply put, fence encroachment occurs when a fence, or any part of it, is built on or extends over the property line of an adjacent landowner without their permission. While it might seem like a minor issue, even a few inches can lead to disputes over property rights, potential adverse possession claims, and a reduction in usable land or property value.

Initial Steps: What to Do When You Suspect Encroachment

Discovering that your neighbor's fence is on your property can be frustrating, but taking the right first steps is crucial to a favorable resolution. Hasty or aggressive actions can escalate the situation and make it harder to resolve amicably or legally.

• 🤝 Communicate Calmly: Your first step should always be a polite, direct conversation with your neighbor. They might be unaware of the encroachment, especially if they inherited the property or relied on an outdated understanding of the boundary. Approach them with a desire to find a solution, not to accuse.
• 📸 Document Everything: Before, during, and after your initial conversation, meticulously document the situation. Take clear, dated photographs of the fence line, noting its position relative to known landmarks or existing survey markers. Keep a detailed log of all communications, including dates, times, and summaries of discussions. This documentation will be invaluable if the dispute escalates.
• 🗺️ Obtain a Professional Land Survey: This is arguably the most critical step. Assumptions about property lines, even those based on old fences or landscaping, are often inaccurate. A licensed Missouri land surveyor will definitively mark your property boundaries. This survey will serve as irrefutable evidence of the encroachment. Ensure the surveyor is licensed in Missouri and provides a detailed plat map showing the exact location of the fence in relation to the true boundary. The cost for a residential land survey in Missouri can range from $500 to $1,500, depending on the property's size, complexity, and location. While an upfront cost, it's often far less than potential litigation.
• 📜 Review Deeds and Plats: Along with a new survey, review your property deed and any existing subdivision plats or surveys. These documents, recorded with the county recorder of deeds, contain the legal description of your property and can corroborate the findings of a new survey.

Legal Theories and Concepts in Missouri Regarding Fence Encroachment

Understanding the legal framework in Missouri is essential when dealing with fence encroachment. Several legal doctrines might apply, complicating or simplifying your case.

Adverse Possession in Missouri

One of the most significant concerns with a long-standing fence encroachment is the risk of an adverse possession claim. In Missouri, for a party to claim ownership of land through adverse possession, five elements must be met and proven by clear and convincing evidence:

• 🚫 Hostile: The possessor must occupy the land without the true owner's permission and with the intent to claim it as their own. It doesn't necessarily mean malice; it simply means without permission.
• 🚶 Actual: The possessor must physically use and occupy the land in a way that demonstrates ownership, such as building a fence, cultivating the land, or maintaining it.
• 🗣️ Open and Notorious: The possession must be visible and obvious to the true owner and the public, indicating that the adverse possessor is claiming ownership. A fence is often considered an "open and notorious" act.
• exclusivity Exclusive: The possessor must occupy the land exclusively, not sharing it with the true owner or the public.
• ⏳ Continuous for 10 Years: The possession must be uninterrupted for a period of at least ten consecutive years (Missouri Revised Statutes § 516.010).

Successfully claiming adverse possession is challenging and requires stringent proof. However, if your neighbor's fence has been on your property for over a decade, they might have grounds for such a claim. This is why prompt action is critical for recent encroachments.

Easements vs. Encroachment

It's important to distinguish between an encroachment and an easement. An easement grants a party the right to use another's land for a specific purpose (e.g., a utility easement for power lines or a driveway easement for access). An easement does not grant ownership. An encroachment, conversely, is an unauthorized physical intrusion onto another's property, implying a claim or use that isn't granted by easement.

Trespass

When a fence is built on your property without permission, it constitutes a continuing trespass. Each day the fence remains on your land, it is a new act of trespass. This gives you the right to seek its removal and potentially claim damages.

Nuisance

While less common for a simple fence encroachment, if the fence, due to its improper placement, creates an unreasonable interference with your use and enjoyment of your property (e.g., blocking essential access, causing drainage issues), it could potentially be argued as a private nuisance.

Seeking Legal Resolution for Fence Encroachment

If direct communication and a survey don't resolve the issue, it's time to consider legal avenues. Engaging a Missouri real estate attorney is highly recommended at this stage.

• ✉️ Attorney-Drafted Cease and Desist/Demand Letter: A formal letter from an attorney can often prompt action. It outlines the legal basis for your claim, provides a deadline for resolution (e.g., removal of the fence or negotiation), and warns of potential legal action if the demand is not met. This demonstrates you are serious about protecting your rights.
• ⚖️ Mediation: Before resorting to litigation, consider mediation. A neutral third-party mediator can help both parties communicate effectively, understand each other's perspectives, and explore mutually agreeable solutions. Mediation is often less costly and time-consuming than court and can preserve neighborly relations. Many Missouri courts even require mediation before trial for certain disputes.
• 🏛️ Litigation: If all else fails, legal action may be necessary. The primary types of lawsuits for fence encroachment in Missouri are:
• ⚖️ Quiet Title Action: This is a lawsuit filed to establish clear ownership of a property. If the neighbor claims the land by adverse possession, a quiet title action is essential to confirm the true boundary and ownership. The court will examine all evidence, including surveys, deeds, and testimony, to determine the rightful owner of the disputed strip of land.
• 🛠️ Ejectment: An ejectment action seeks to remove a party (or their structure, like a fence) from your property. If the court rules in your favor, it will issue an order requiring the neighbor to remove the encroaching fence.
• 📜 Injunction: You might seek an injunction to prevent the neighbor from building further or to compel them to remove the existing encroachment.
• 💲 Damages: In some cases, you may seek monetary damages in addition to the fence's removal.

Potential Compensation and Damages in Missouri

While the primary goal in fence encroachment cases is typically the removal of the encroaching structure and establishment of the correct boundary, you may be entitled to various forms of compensation:

• 💰 Cost of Removal and Relocation: The court can order the encroaching party to pay for the costs associated with removing the fence and potentially rebuilding it on the correct boundary line. This can range from a few hundred dollars for a small, easily removable fence to several thousand for a long, concrete-set structure.
• 📉 Diminution in Property Value: If the encroachment significantly reduces the market value of your property, you might be able to recover damages for this diminution. This is often harder to prove and typically requires expert appraisal testimony. For a small fence encroachment, this is less common unless it severely impacts usability or access.
• 💸 Damages for Trespass: While often nominal for minor encroachments (e.g., $1 to $100), if the trespass caused actual damage to your land or interfered significantly with your use, you could seek compensatory damages. In egregious cases involving malicious intent or continued refusal to remove, punitive damages (designed to punish the wrongdoer) might also be considered, though these are rare for simple fence disputes.
• ⚖️ Survey Costs and Legal Fees: Generally, in Missouri, each party pays their own attorney's fees ("American Rule"). However, a court might award these costs if there's a specific statute allowing it, if a contract between the parties provides for it, or if the losing party acted in bad faith or engaged in frivolous litigation. Forcing the encroaching party to pay for the survey often depends on the specifics of the court's ruling and whether it was a necessary expense to resolve the issue.

Hypothetical Scenarios Reflecting Missouri Legal Principles

Scenario 1: The Freshly Built Encroachment

Case: Sarah, living in St. Charles, Missouri, notices her new neighbor, Tom, has just completed building a new wooden fence. Curious, and recalling an old survey marker near where the fence now stands, she hires a licensed Missouri surveyor. The survey confirms the fence is 18 inches over her property line for its entire 100-foot length.

Legal Approach: Sarah has a strong case. She should immediately present the survey to Tom, explaining the error calmly. If Tom is unwilling to move it, Sarah's attorney should send a demand letter with the survey attached, requesting removal within a specific timeframe (e.g., 30 days). Since the encroachment is new, Tom has no basis for an adverse possession claim. If Tom refuses, Sarah could file an ejectment action and/or seek an injunction to compel removal. She would likely be able to recover the cost of removing the fence and possibly a portion of her survey costs, depending on the court's discretion.

Scenario 2: The Long-Standing, Ambiguous Fence

Case: David buys a home in Springfield, Missouri, with a chain-link fence separating his backyard from his neighbor Lisa's. The fence looks old. After a few years, David plans to build a shed and gets a survey, which reveals the fence has been 3 feet onto his property for what appears to be decades. Lisa claims the fence has always been there and that land is hers, citing the fence as the boundary she and the previous owner used.

Legal Approach: This is a classic adverse possession scenario. Lisa might attempt to claim the 3-foot strip through adverse possession, arguing that the fence has been "hostile, actual, open and notorious, exclusive, and continuous" for more than 10 years (MO Rev. Stat. § 516.010). David would likely need to file a quiet title action to establish the true boundary. The burden of proof would be on Lisa to demonstrate all elements of adverse possession clearly and convincingly. If Lisa cannot prove all elements, particularly the 10-year continuous period with clear intent, David would win, and the fence would have to be moved. However, if she succeeds, David could lose that strip of land. This scenario highlights the importance of timely action.

Scenario 3: Boundary by Agreement or Acquiescence

Case: Two neighbors in Kansas City, Mark and Susan, previously agreed informally that an old, dilapidated fence represented their property line years ago, even though it wasn't perfectly accurate. They both maintained their respective sides up to this fence. Now, Susan sells her property to Jennifer, who gets a survey that shows the fence is slightly off the true line. Jennifer wants to build a new fence on the actual property line.

Legal Approach: In Missouri, a "boundary by agreement" can sometimes be established where two adjoining landowners agree upon a boundary line and then occupy up to that line, even if it deviates from the true survey line. For such an agreement to be binding, there generally must be an uncertain or disputed boundary, a mutual agreement (express or implied), and subsequent possession or acts of ownership consistent with that agreement. "Boundary by acquiescence" can occur if both parties recognize and accept a boundary line for a long period, even without an explicit agreement. Jennifer might be bound by the previous owners' agreement or acquiescence, especially if it was long-standing. Litigation here would involve presenting evidence of the prior owners' actions and agreement. It's a complex area, often requiring detailed historical evidence.

Common Mistakes to Avoid

• ⏳ Ignoring the Problem: Do not delay addressing the encroachment. The longer it sits, the higher the risk of adverse possession claims or the more difficult it becomes to prove your case.
• 🔨 Self-Help Measures: Never attempt to remove or damage the encroaching fence yourself. This can lead to charges of vandalism, trespass, or property damage against you, weakening your legal position and potentially resulting in civil liability.
• 🗣️ Emotional Confrontation: While frustrating, keep emotions in check during discussions with your neighbor. Focus on facts (supported by your survey) and potential solutions.
• 📉 Relying on Assumptions: Don't assume where your property line is based on old fences, landscaping, or what a previous owner told you. Always get a professional survey.
• 🚫 Lack of Documentation: Failing to document conversations, photos, survey results, and communication attempts can significantly hinder your case if it goes to court.

Key Deadlines (Statute of Limitations)

Understanding key legal deadlines in Missouri is important:

• ⏱️ Adverse Possession: The statutory period for adverse possession in Missouri is 10 years (MO Rev. Stat. § 516.010). If the fence has been on your property for over a decade, your neighbor may have grounds for an adverse possession claim.
• ⏰ Trespass: A lawsuit for trespass generally has a 5-year statute of limitations in Missouri (MO Rev. Stat. § 516.120). However, since fence encroachment is often considered a "continuing trespass," the statute of limitations may reset each day the fence remains. This means that even if the fence has been there for more than 5 years, you might still have a claim for its ongoing presence, though recovery of past damages might be limited.

Preventative Measures for Future Peace of Mind

• 🏗️ Survey Before Building: If you plan to build a fence or any structure near your property line, always get a survey first. This small investment can prevent massive headaches later.
• 🗣️ Communicate with Neighbors: Discuss your plans with your neighbors before building a fence. Sometimes, shared fences or minor adjustments can be mutually agreed upon and legally documented.
• ✍️ Record Agreements: If you and your neighbor agree on a boundary line that deviates from the survey, or on the placement of a fence, put it in writing and have it notarized. Ideally, record it with the county recorder of deeds to make it binding on future owners.

Conclusion

Fence encroachment in Missouri is a complex issue that demands a strategic and informed approach. Acting promptly, gathering concrete evidence (especially a professional survey), and seeking qualified legal counsel are paramount. While it's always best to resolve disputes amicably, protecting your property rights often requires a clear understanding of Missouri law and a willingness to pursue legal action when necessary. Don't let a few inches of misplaced fence become a permanent loss of your valuable property.

Disclaimer: This article provides general information about fence encroachment in Missouri and is not intended as legal advice. Laws can change, and specific situations vary. For advice on your particular circumstances, consult with a qualified Missouri attorney specializing in real estate or property law. This information should not be used as a substitute for professional legal counsel.