Can You Force Your ND Neighbor to Move an Encroaching Fence?

Navigating neighbor disputes can be one of the most stressful aspects of property ownership, and few issues are as contentious as a fence that crosses a property line. In North Dakota, where good neighborly relations are highly valued, an encroaching fence can quickly sour a relationship and lead to complex legal challenges. This article will provide actionable legal advice, highlight common pitfalls, and outline the steps you can take to resolve a fence encroachment issue in the Peace Garden State.

Understanding Fence Encroachment in North Dakota

At its core, a fence encroachment occurs when a fence, or any part of it, extends onto your property without your permission, or when your neighbor's fence is built partially or entirely on your land. This isn't just an aesthetic issue; it can impact your property rights, future resale value, and even lead to claims of ownership by your neighbor over time.

Types of Encroachment Scenarios

• 📏 New Construction: A neighbor builds a new fence, mistakenly or intentionally, over your property line.
• 🕰️ Existing Fence: An older fence, perhaps believed to be on the line, is discovered to be encroaching after a new survey.
• 🌳 Natural Shifting: While less common for fences themselves, natural forces or shifting ground could theoretically cause an older, poorly maintained fence to lean or extend.

Initial Steps: Diplomacy First

Before any legal action, the most effective first step is usually a direct, amicable conversation with your neighbor. Many encroachments are unintentional mistakes.

Steps for Initial Communication

1. 🗣️ Gather Information: Before you speak, ensure you have some evidence. This might be an old survey, property records, or simply a good faith belief based on visual cues.
2. ✉️ Approach Calmly: Choose a time when both you and your neighbor are relaxed and can speak privately. Avoid accusations. Start by explaining your observation factually.
3. 🤝 Propose a Solution: Suggest jointly investigating the boundary, perhaps by reviewing existing documents or considering a new survey. Emphasize finding a mutually agreeable resolution.
4. 📝 Document Everything: Keep a written record of when and what you discussed, even if it's just notes for yourself. If you send a letter or email, retain copies.

If your neighbor is receptive, great! You might agree to share the cost of a new survey and, if an encroachment is confirmed, discuss the cost and method of moving or removing the fence.

Determining the True Property Line in North Dakota

The bedrock of any fence dispute is knowing exactly where the property line lies. Do not rely solely on old markers, informal agreements, or assumptions.

The Importance of a Professional Survey

• 🗺️ Official Documentation: A licensed land surveyor is the only professional who can legally establish and mark your property boundaries. They will examine official records, existing monuments, and physical evidence to provide an accurate assessment.
• ⚖️ Legal Evidence: A recent, certified survey is paramount if the dispute escalates to legal action. It provides undeniable evidence of the property line.
• 💰 Cost-Sharing: If your neighbor agrees, sharing the cost of a survey is often the most cost-effective way to resolve uncertainty and prevent future disputes. A basic property survey in North Dakota can range from $500 to $1,500 or more, depending on the property's size, complexity, and location.

Once the survey is complete, if it confirms an encroachment, you have concrete evidence to present to your neighbor.

North Dakota Law and Fence Encroachment

North Dakota law provides frameworks for resolving property disputes, including those involving fences. Key legal principles that might come into play are adverse possession and boundary by acquiescence.

Adverse Possession (NDCC Chapter 28-01)

This is a significant legal concept to be aware of. If a neighbor occupies a portion of your land openly, notoriously, continuously, exclusively, and hostilely for a statutory period, they might eventually claim legal ownership of that portion, even if it was originally yours.

• ⏳ Time Requirement: In North Dakota, the statutory period for adverse possession is 20 years (NDCC § 28-01-04, § 28-01-07). This means if an encroaching fence has been there for two decades, your neighbor might have a legitimate claim to the strip of land it encloses.
• 🧐 Elements to Prove: The claimant (the encroaching neighbor) must demonstrate all of the following:
  • 🧍 Hostile: The possession must be without permission from the true owner.
  • 👁️ Actual: The claimant must physically use and occupy the land.
  • 📣 Open and Notorious: The use must be visible and obvious to anyone, including the true owner.
  • 🔄 Continuous: The use must be uninterrupted for the entire 20-year period.
  • exclusivity: The claimant must possess the land exclusively, not sharing it with the true owner or others.
• 💸 Payment of Taxes: While not always strictly required for all forms of adverse possession in North Dakota, paying taxes on the disputed strip of land for 10 years can also establish a claim under NDCC § 28-01-07, especially if accompanied by improvement or cultivation of the land.

If an encroaching fence has been in place for a long time, it's crucial to consult with an attorney to assess whether an adverse possession claim is likely to succeed or be defended against.

Boundary by Acquiescence

North Dakota courts also recognize the doctrine of boundary by acquiescence. This occurs when adjoining landowners, for a long period (often 20 years, mirroring adverse possession), mutually recognize and accept a fence or other marker as the true boundary, even if it's not the legal line described in deeds.

• 🤝 Mutual Recognition: The key is the mutual agreement or silent acceptance by both parties over time that the fence serves as the boundary.
• 🕰️ Duration: While not always as rigidly defined as adverse possession's time period, a significant duration of mutual recognition (e.g., 20 years) strengthens a claim of boundary by acquiescence.

Addressing the Encroachment: Options and Strategies

If direct communication fails or if the situation is complex (e.g., involving adverse possession claims), you'll need to consider other options.

1. Negotiation and Mediation

If direct talks are difficult, a neutral third party can often help facilitate a resolution.

• ⚖️ Mediation: A mediator is a neutral third party who helps neighbors communicate and reach a mutually acceptable agreement. They do not make decisions but guide the discussion. Mediation can save significant legal costs and preserve neighborly relations. Costs for mediation in North Dakota can vary but typically range from $200 to $500 per session per party.
• 🛠️ Possible Agreements: Agreements reached in mediation might include:
  • 🚧 Neighbor agrees to move the fence at their expense.
  • 🤝 You agree to allow the fence to remain, possibly in exchange for compensation or an easement.
  • ⚖️ Parties agree to split the cost of moving the fence.

2. Legal Action

If all else fails, litigation may be necessary. This typically involves filing a lawsuit in North Dakota District Court.

• 🏛️ Quiet Title Action: This is a common lawsuit used to definitively establish the ownership of property and resolve boundary disputes. The court will determine the true property line and who owns the disputed land.
• 🏡 Ejectment Action: If the court determines the fence is indeed on your property and your neighbor refuses to remove it, you might seek an order for ejectment, which legally compels the removal of the encroaching structure.
• 💰 Damages: You might also seek monetary damages for:
  • 🚧 Cost of Removal: The expense of having the encroaching fence removed and the land restored. This could be anywhere from $500 to $5,000+ depending on the fence.
  • 📈 Loss of Use/Diminution in Value: Compensation for the time you were deprived of using your land or if the encroachment permanently reduced your property's value. This is highly variable, potentially hundreds to thousands of dollars.
  • 👨‍⚖️ Legal Fees: In some cases, if the neighbor acted maliciously or unreasonably, a court might award attorney's fees, though this is not guaranteed for simple encroachment cases.
• 🚨 Injunction: In some urgent cases, you might seek a court order (injunction) to prevent a neighbor from continuing to build or make improvements on the disputed land.

Legal fees for litigation can be substantial. For a boundary dispute that goes to trial, costs can easily range from $10,000 to $30,000 or more, depending on the complexity and duration of the case.

Hypothetical Cases in North Dakota

Case 1: The Newly Built, Clearly Mistaken Fence

Scenario: Alex recently purchased a home in Fargo and decided to install a new privacy fence. He hired a contractor who, due to an error in reading old survey markers, built the fence two feet onto his neighbor Beth's property. Beth, noticing the encroachment shortly after construction began, immediately checked her property survey and then approached Alex.

• 📞 Beth's Action: Beth, armed with her survey, calmly explained the situation to Alex.
• 🤝 Alex's Response: Alex, realizing his mistake and wanting to maintain good neighborly relations, agreed to review Beth's survey and then called his contractor.
• 🚧 Resolution: The contractor admitted their error and, at no cost to Alex or Beth, promptly moved the fence to the correct property line. Alex and Beth shared the cost of a new, updated survey for peace of mind.
• ✨ Legal Principle: This scenario highlights the importance of early communication and verifiable evidence (the survey) to resolve an unintentional encroachment without litigation.

Case 2: The Old Fence and a Potential Adverse Possession Claim

Scenario: Carol owns a rural property near Bismarck. Her neighbor, David, has had a dilapidated barbed wire fence running along what he believed was their shared boundary for over 25 years. Carol recently commissioned a new survey for an unrelated project and discovered that David's fence, and the land he has been actively farming up to it, encroaches by about five feet onto her deeded property.

• 📜 Carol's Dilemma: Carol wants her land back, but David argues the fence has been there for decades and he's always used that strip of land.
• 👨‍⚖️ Legal Consideration: David might have a strong claim for adverse possession or boundary by acquiescence because the fence has been in place for more than North Dakota's 20-year statutory period, and he has openly and continuously used the land.
• 🧑‍⚖️ Resolution: Carol consults a North Dakota attorney. The attorney explains the elements of adverse possession and boundary by acquiescence. Given the long duration and David's continuous use, a court might rule in David's favor, granting him legal title to the five-foot strip. Carol's attorney might advise negotiating with David for a small payment in exchange for a quitclaim deed to formally recognize the new boundary, or to concede the strip to avoid costly and likely unsuccessful litigation.
• ✨ Legal Principle: This demonstrates how neglecting to address an encroachment for a long time can lead to a loss of property rights through adverse possession or boundary by acquiescence under North Dakota law.

Common Mistakes to Avoid

• 🚫 Ignoring the Problem: Hoping it goes away will only make it worse, especially with adverse possession statutes.
• 😡 Confrontational Approach: Yelling or making threats escalates the situation and makes amicable resolution far less likely.
• 🛠️ Self-Help Measures: Do NOT unilaterally move, damage, or destroy your neighbor's fence. This could lead to charges of property damage or trespass against YOU.
• 🔍 Relying on Assumptions: Never assume you know where the property line is without a professional survey.
• ✍️ Verbal Agreements Only: Always get any agreements in writing, signed by both parties.

Key Deadlines (Statutes of Limitations)

While there isn't a specific "deadline" to address an encroachment itself, North Dakota's statutes of limitations can impact your ability to recover your land or challenge an adverse possession claim:

• 🗓️ 20-Year Rule: As discussed, if an encroachment exists for 20 years and meets the other criteria, an adverse possession claim can be established (NDCC § 28-01-04, § 28-01-07). This means you should address encroachments well before this period elapses.
• 🏛️ Actions to Recover Real Property: Generally, an action for the recovery of real property must be commenced within 20 years. This reinforces the need for timely action.

These deadlines underscore the importance of acting promptly once you suspect an encroachment.

The Importance of Legal Counsel

While this article provides general information, every fence encroachment situation is unique. Consulting with a North Dakota real estate attorney is highly recommended, especially if:

• 🗣️ Your neighbor is uncooperative.
• ⚖️ The encroachment is significant or has been in place for a long time.
• 🤔 You suspect adverse possession or boundary by acquiescence might be an issue.
• 📜 You need help interpreting a survey or property deeds.
• 🤝 You want to ensure any agreement reached is legally sound and binding.

An attorney can explain your rights, interpret North Dakota law, help you gather evidence, negotiate on your behalf, or represent you in court if necessary. Legal fees for an initial consultation with a North Dakota attorney typically range from $150 to $400, while more extensive work could involve hourly rates of $250 to $450 per hour.

Disclaimer: This article provides general information and is not intended as legal advice. Laws can change, and specific situations require professional legal counsel. For advice on your specific circumstances, consult with a qualified North Dakota attorney.