(Published in the Idaho Business Review, February 2007) 

We are all familiar with the old saying, “Good fences make good neighbors,” from a poem by Robert Frost.  There must be a natural instinct for humans to want to define the boundaries of their possessions.  

This is particularly the case with real estate.  We proudly build fences along our borders to make sure everybody knows the boundary dividing our property from the adjoining property.   

Often we are not quite sure where our property’s legal boundary is, and we do not want to hire a professional to perform a survey just to build a fence.  Sometimes we join our neighbor to share the cost of building a fence without a survey.  As Robert Frost said, usually neighbors co-exist peacefully with the fence in place and the legal boundary never becomes a contentious issue. Occasionally, the neighbor who helped build the fence or a new neighbor who buys the adjoining property may claim that the fence encroaches upon their property. They demand that the fence be moved.  If you are lucky, a survey confirms that the fence is in the right location and the matter is settled.  However, if the fence is not on the exact legal boundary, harmony in the neighborhood is disrupted and everyone hires surveyors and lawyers and set off to court to get what they think is rightfully theirs. 

Idaho law recognizes two basic legal principles courts use to resolve these disputes.  One is known as “boundary by agreement.”  Under this principle if a court determines that the actual legal boundary was uncertain or disputed between adjoining property owners and they enter into an express or implied agreement to establish the boundary by building a fence, the fenceline will be treated as the lawful boundary even though a survey based upon the deeds shows the boundary to be in a different location.   

Typically, the courts will look to some action on the part of each neighbor indicating the fenceline was accepted as the boundary.  For example, if you and your neighbor pitched in to share the cost of building the fence, that action would be an indication of an agreement by both parties that the fence represented a boundary agreeable to both. 

Another legal principle often raised in boundary disputes is called “adverse possession.”  Idaho law recognizes that one neighbor may “acquire” legal title to a portion of his neighbor’s property by openly taking possession of the property without his neighbor’s permission and occupying it for the requisite period of time. 

 Adverse possession usually does not apply in cases where neighbors join together to build the fence.  In that case the fence will likely be viewed as permission by each neighbor to place the fence where it is built and consequently, permission to occupy any property within the fenceline.  With some exceptions, claim of adverse possession also requires the payment of taxes on the disputed property by the party claiming adverse possession.   

Until July 1, 2006, adverse possession required open and continuous possession of another’s property for a period of not less than five years.  However, effective July 1, 2006, the Idaho legislature changed that period of possession from five years to twenty years.  When the period of adverse possession was only five years, many people encountered claims of adverse possession.  Now that the period has been extended to twenty years, it will be much more difficult to establish a legal claim based upon adverse possession. 

Good neighbors respect one another’s property.  We mostly want to be good neighbors, but that is not always as simple as building a fence.