Grandfather clauses can be confusing because any formal decision is up to the discretion of the judge in charge. Having a fence grandfathered in is easy and simple though.
For a fence to be grandfathered in as a property line, a case needs to be brought to a judge for a ruling. The judge will most likely rule in favor of the fence if the fence is over twenty years old. It is helpful to work out any details with the other party before going to a judge.
The mention of property lines is enough to make any homeowner sweat. These pesky little lines determine what we do and don’t own, and the thought of not knowing the boundary of our kingdom is terrifying. Not to mention the idea that if we haven’t known the line for long enough then anything over it technically isn’t ours anymore.
For an object to be considered not yours, it needs to be left outside your property for one month to a year. This makes knowing the property line so important, because anything over it may no longer be yours.
Since most houses and properties don’t have on-site blueprints and dimensions, a little bit of footwork needs to be done to determine where your property line is.
A visit to your county recorder (or assessor) will provide you with enough information to learn where your property line is. After you know this it will be easy to determine if that fence you’re worried about is crossing any lines.
Judge Or Neighbor
Grandfathering in an object can be done in two ways. Discussing it with your neighbor, or taking your case to a judge.
If you like your neighbor and are hoping to keep up relations with them, you can create and sign your own document grandfathering your fence to be your new property line.
So long as both of you agree to any terms, sign in a binding manner, and get it sealed and notarized, that can be the end of grandfathering your fence into a property line.
If you and your neighbor are having a dispute about the fence and can’t come to an agreement, you will have to bring the case (or cases) to a judge.
If the fence has been there more than twenty years the judge will most likely grandfather the fence in to be the new property line. This depends on the state you are in, though it is generally accepted that twenty years is the oldest a fence has to be to be grandfathered.
Types Of Cases
There are two parts to a property line disputation when trying to grandfather. Adverse Possession and Prescriptive Easement.
Adverse Possession is the term used for determining if someone owns something. This is especially easy to prove with something like a fence. It involves the open use of property in both public areas (such as taxes) and private life (such as a backyard).
The second part, Prescriptive Easement, means almost the same thing as Adverse Possession does. The biggest difference is that a person need only use an object in private for Prescriptive Easement.
If a person can prove Adverse Possession for five years then the judge will likely rule in their favor. Meaning that if you built a fence onto someone’s property five years ago, have been paying taxes on that property, and use that property, then that fence will likely become the new property line.
Grandfathering refers to an old object not being subject to new laws. That being said we need to clarify something. Grandfathering is not used as a legal term, but a generalization of the idea of “making the old okay in the new.”
The proper terminology for this idea is “non-conforming.” “Non-conforming” structures are anything that was built up to code before the code was updated.
A fence built twenty years ago across a property line does not need to be grandfathered in to adjust a property line. This is a property dispute and therefore the term “grandfather” is not accurate in describing it.
A fence built twenty years ago when it was legal to build 6 feet high without a permit does need to be grandfathered because it is “non-conforming” to the new law requiring a permit to build past that height.
With that being clarified, understand that this confusion happens often and the term grandfathered is used incorrectly to refer to an old fence becoming a new property line.
How To “Grandfather” In A Fence
Under it’s generally accepted usage of “making the old okay” about property lines, it’s actually pretty easy to change a property line by using a fence.
All you have to do is compile your evidence for turning the fence into a new property line and file the paperwork with a public authority. That would be a public notary or a judge if it becomes court ordered.
Evidence would consist of the before mentioned tax records, open public and private use, and a record of at least five years. The longer the records go, the better the chance a judge will rule that the fence becomes a new property line.
If you choose to go the judging route then be prepared for a legal battle as well. Especially if the other party is against the fence being turned into a property line. Often, civil cases regarding property lines will escalate to the point of using lawyers.
Even if lawyers aren’t used in court, it is a high chance that they will still be consulted
Other Types of Grandfather Cases
Grandfathering when used in its “non-conforming” type of meaning refers to old construction laws being allowed to exist under new ordinances.
To allow a structure to be given the title of “non-conforming”, you have to do things slightly differently because it is a dispute between a private party and the state. The same basic principles and ideas are there, but the differences will not be covered in this article.