How To Prevent Adverse Possession Claim

[Mike C.]

We bought a SFR on .6 acre. From the previous owner we obtained a plat that is quite detailed but does not seem to have been recorded as when I went to the county records office there was no plat found recorded for our lot nor for any of the neighbor's lots, although we did find one for the entire neighborhood development that seems to corroborate the accuracy of our plat.

Our plat shows the upper corner of our chain link fence, near the house, on the lot line, but shows that the straight fence angles inward such that the back fence post down by the creek (back lot line) is some 19.6' in from the actual property line (a pleasant surprise for us). The fence gives the appearance that our lot is much narrower in the rear than the plat indicates, and in fact our neighbor on that side has been using a grassy flat spot at the bottom of that otherwise lightly wooded portion, on our property, to stack his branches, leaves and other lawn debris for many years.

Especially given the position of the fence, and that we, and I guess they, believed it to be their property and not ours, this seem to constitute hostile, actual, open, notorious possession and exclusive and continuous use of the property by them. And I understand that if a fence without a gate is in place that this somewhat legally certifies that we had no intention of ever using the property.

As it happens, that neighbor received his deed and moved into his property 27 May 2004, or about 14.89 years ago, of the 15 years required for an adverse possession claim in Virginia.

Now, this is possibly the most friendly neighborhood we have ever lived in and I don’t want any conflict. But I also have no way of knowing if they would, out of the blue, file an adverse possession claim of the portion of our land on "their side" of the fence, which I guess we all believed to be their property. And it may come as an unpleasant surprise to them when I remove the chain link fence and build our planned privacy fence on the actual line, on what they may have perceived as "their property" for all these years. And I just can't quite rest easy knowing that they actually may know the real situation and are just biding their time before filing a claim we might never even notice until its too late.

Does this seem a reasonable plan (a few questions)?

1) Remove the existing chain link fence this week and place stakes and string along the actual line. This would be seen by reasonable people as very temporary and thus much less aggressive to them than actually installing 4x4 posts in concrete. It would present an opportunity for them to open discussion if they had any issue.

2) If they protested we could provide them a copy of our plat, and if they still protested, I would be willing to hire a surveyor to mark the line officially prior to building our new fence. At that point, if they still had a problem, it would be with the surveyor or the county, is this correct?

3) If, upon removing the fence and placing the stakes and string on the actual line, we were to clean up and remove "their" pile of yard debris, would this legally constitute "use" of the property by us and thereby negate any claim they could make to "exclusive" use of the property over the past 14.89 years?

Any comments would be most welcome. Sorry for the long post--this is a serious-but-delicate matter for us as we greatly value the neighborly atmosphere here, yet have no intention of giving up any of our property if we can help it.

These are represented as relevant points of the law in VA, as summarized at: https://statelaws.findlaw.com/virginia-law/virginia-adverse-possession-laws.html

• 'Hostile' Possession - The property is taken without permission from the property owner.
• 'Actual' Possession - The claimant must physically possess the property in order to claim title [the fence...].
• 'Open and Notorious' - Possession of the property must be open and obvious to casual onlookers.
• 'Exclusive and Continuous' for a Specified Period of Time - The person claiming title must have been the exclusive possessor of the property for 15 years (in Virginia).