Attorney's fees should be factored into neighbor dispute

Q. I have lived in my home for about 28 years. There is a berm that runs along the side of my property. I have always thought the berm was on my property.

On the berm, we have built (and expanded over the years) an extensive three tiered garden. Toward the rear of the yard, at the end of the berm, is a large, permanent piece of art (at least that's what my wife calls it).

Our next door neighbor of many years recently sold his home. Our new neighbors came by a few days ago to introduce themselves and to inform us that the berm and "art" were mostly on their property. They weren't nasty about it, but they want to build a fence to keep in their dog and they claim if they build the fence along the property line, most of the berm and the art will be on their side of the fence.

We ended our conversation stating we would each try to think of a solution. It seems to me the only solution is for us to move our berm and art, which is going to be expensive and a giant pain. When discussing this with a friend, he told me if I use someone else's property for a certain period of time, it could become mine. Any idea what he is talking about?

A. I would presume he is talking about the Doctrine of Adverse Possession. Adverse possession is the "open and hostile possession of land under claim of title to the exclusion of the true owner, which, if continued for the period prescribed by statute, ripens into actual title." This is a definition from a court case that dealt with the issue.

There are several elements one must establish to prevail in a claim for adverse possession. You must prove your possession of the land in question was 1) continuous, 2) hostile (meaning the party that actually owned the property didn't give you permission to use it), 3) actual, 4) open, notorious and exclusive and 5) under claim of title inconsistent with that of the true owner for a period of 20 years. All five of these elements must have existed concurrently for the full 20-year period for the doctrine to apply.

Adverse possession is an extraordinary remedy and not easily granted. All the elements above are presumed in favor of the titleholder. You would have the burden of establishing all five elements by clear and convincing evidence.

The other obvious problem is if you choose this route, this could certainly result in hostile relations with your new neighbors.

You indicate it will be expensive to move the berm and art. I'm not sure how much that would cost, but my guess is it would be cheaper than your attorney's fees and costs in a lawsuit that your neighbors will almost certainly fight. And, while you are writing checks to your attorneys, it is quite possible your neighbor's defense will be assumed by their title company, resulting in no out-of-pocket cost to them. It's never a good idea to enter a legal battle with someone who isn't required to pay attorney's fees while you write checks.

Unless your neighbors come up with a more painless solution, you are probably best off absorbing the loss and moving the berm and art. Your cost in the long run will probably be less and you won't have to turn away every time you come in contact with your new neighbors. Maybe they'll even buy you a beer or two.

Should you wish to pursue this further, speak to a real estate attorney familiar with this aspect of real estate law.

• Send your questions to attorney Tom Resnick, 345 N. Quentin Road, Palatine, IL 60067, by email to tdr100@hotmail.com or call (847) 359-8983.