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Letter to the editor

Time to mend fence is too late

By Benny Kass, Special to the Times
Published February 23, 2008

Q: We recently discovered that the fence our neighbors built quite some time ago is 8 inches on our side of the property. The fence is rundown and termite-infested. Our neighbor has her house for sale "as is" and doesn't want to spend any money on the fence. Can I tear down the fence and build a new one straight down the property line?

A: This falls under the legal concept of "adverse possession." If your neighbor's fence was on your property for a period of time fixed by state law in Florida it's seven years, and you gave no consent to that encroachment, your neighbor can claim that portion of your land as her own. She would have to go to court and get a judge to issue an order granting her title.

The burden of proof would be on your neighbor. There are four basic requirements: (1) that the fence was open for everyone to see; (2) that the possession was open and notorious; (3) that it was hostile, i.e., without your consent; and (4) that the possession was continuous for the statutory period of time.

Here's a suggestion: Talk to your neighbor and tell her that you will - at no cost to her - replace the fence on the property line. If she does not object, you are free to tear down the fence. If she does not agree, I cannot advise you to take self-help until you talk with your lawyer.

House title is tricky

Q: A couple married in 1961 and bought a house in 1990. Her name alone is on the title. If she dies before he does, will he automatically inherit the house? If her will states that she wants to leave the house to her two children from a former marriage, is that will valid?

A: The laws differ from state to state. Most provide some protection for a spouse, even if he or she is not on the title. Some states will even go against the will and give the spouse a share of the estate, in this case one-third and the two children two-thirds.

One option is for the wife to grant her husband a life estate in the property. He may live there and must maintain the property and pay the taxes until he dies or moves out permanently. The children from his wife's former marriage cannot force him out. When he dies or moves out, title passes to the wife's children.

This is a potentially messy situation and the wife should get her affairs in order while she's still alive.

E-mail Benny Kass at benny@inman.com.

[Last modified February 21, 2008, 17:05:15]