Although Robert Frost’s neighbor insists in the poem, Mending Wall, that “Good fences make good neighbors,” fences don’t always prevent boundary disputes and protracted litigation between neighbors, as the parties learned in a recent North Carolina Court of Appeals decision handed down on January 2, 2018. And even good surveys don’t always prevent or resolve boundary disputes.
In Parker v. DeSherbinin, Case Number COA 17-377-2 the Court determined that one of the neighbors laying claim to a disputed area on both sides of a chain link fence separating the properties may be entitled to the disputed area on the basis of adverse possession and the doctrine of “lappage” if the claimant can show that a metes-and-bounds description and incorporated reference in the survey contained in his deed can be located on the ground sufficient to establish possession of color of title to the disputed area.
In this case, the claimant was a prior owner who acquired his property a number of years before the neighbors came along. Claimant, Mr. Parker, acquired his property and recorded a deed in 1984, and his property was described in a 1982 survey which was referenced in the deed. In 2013, the neighbors acquired the adjacent vacant lot and hired a surveyor to prepare a plat to submit with their plan to build a residence. The new survey made no reference to the 1982 survey and established a boundary between their property and Mr. Parker’s property approximately 5 feet south of the line established in Mr. Parker’s 1982 survey.
A chain link fence was shown on the 2013 survey. The fence was installed by Mr. Parker, to the north of the boundary line between the parties’ properties and within the disputed area. After attempts to resolve the dispute informally, a complaint by Mr. Parker objecting to his new neighbors’ building permit, and after at least two more surveys were performed and prepared, the litigation ensued and the case was ultimately tried in New Hanover County in 2016, and then appealed to the Court of Appeals, which reheard the case after a prior opinion issued in October of 2017, to seek to establish the true boundary line and to resolve the dispute.
And the case isn’t over yet. The Court of Appeals remanded the matter to the trial court and ordered one of the four surveyors already employed by the parties to do another survey and to physically locate, fit and describe the location of the chain link fence in the disputed area in order to quiet title once and for all.
Ellinger Carr lawyers handle commercial real estate transactions, sometimes involving boundary disputes, chain link fences and other types of fences, and many other legal issues arising in real estate transactions, including legal descriptions, leases and lease negotiations, conditions, covenants and restrictions, title, title insurance and survey matters.
Ellinger Carr is a business law and commercial real estate law firm based in Raleigh, North Carolina. Ellinger Carr lawyers are experienced and knowledgeable counselors, transaction leaders, and business problem solvers, admitted to practice in North Carolina, South Carolina, Florida, Louisiana, Virginia and New York. For assistance in commercial real estate, corporate law and business development matters, please call 919-785-9998 or email Susan Ellinger at sellinger@ellingercarr.com, Steven Carr at scarr@ellingercarr.com, Heather McDowell at hmcdowell@ellingercarr.com, and Sarah Goodin at sgoodin@ellingercarr.com.
