How to deal with a property line discrepancy

Q. We hired a surveyor before building a fence on our property. To our surprise, he found that our neighbors' driveway is on our side of the property line. We notified them about this, but they had just listed their house for sale and asked if we could offset our fence temporarily, until their house was sold. We agreed to this and also notified their Realtor about the property line discrepancy.

After the house sold, we contacted the new owners and asked them to work with us to adjust the fence line. They gave us no definite answer and have been stalling us for nearly a year. So now we are weighing our options. Moving the fence to the property line may impact our neighborly relationship, which would be very uncomfortable, but their lack of interest in the matter is a growing concern. If we ever decide to sell our home, this could be an unwanted complication. What do you think we should do?

A. This is a challenging situation. Clearly you are entitled to take possession of land that is legally yours, but living for years with strained next-door relations is a price you don't want to pay. It may or may not be possible to accomplish both objectives - adjustment of the fence line and keeping amicable relations - but what you are asking of your neighbors is fair and reasonable.

Hopefully they can see this and are as concerned about maintaining good relations as you are. The fact that they have seemed to be stalling you on the matter only adds to your discomfort or uncertainty.

A first step toward resolution would be to talk to them again, stressing your plan to move the fence to its proper and legal location by a specific date, and that it is your hope that this will not engender any hardship or bad feelings. Keep in mind that you are seeking cooperation, not permission. They need to understand that you intend to correct the fence line.

For a better understanding of their position, it would be helpful to know what was disclosed to them about the fence line in the course of their escrow. The words of that disclosure are important. For all you know, they might have gotten the impression that the fence was not on the property line but that this was not an issue to be resolved. They may have been surprised to learn you want to take possession of your part of the property. They may see your request as an unexpected and unwanted problem, contrary to their understanding when they purchased the property.

You need to know exactly what was disclosed to them by the sellers and by their Realtor. If they were not properly informed, this could raise serious legal issues with the sellers and Realtor.

Actually, this situation should have been resolved before the property was sold by the former owners. Asking you to offset the fence line so that they could sell their property was a poorly conceived request that has left you with an unsolved problem, while they have moved on to the next chapter of their lives, no longer having to deal with the issue.

Situations of this kind can lead to lawsuits because the new owners will have to build a new driveway, and repaving isn't cheap.

Before taking any action on this, be sure to get some advice from a real estate attorney to be sure of your legal rights and risks in the matter.

• To write to Barry Stone, visit him on the web at www.housedetective.com, or write AMG, 1776 Jami Lee Court, Suite 218, San Luis Obispo, CA 94301.

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