The lot-line shocker

DEAR BENNY: I purchased my home in September 2000. My survey indicated that my fence was encroaching on my neighbor's property by 3 feet. My home was built in 1955 and I am the second owner. The 4-foot chain-link fence has encircled this property for approximately 40 years, and my neighbor (who inherited his home from his parents) indicated that he had no plans of erecting a fence because his companion is claustrophobic.

Recently, however, my neighbor and his contractor began constructing an addition to his home that will include a 6-foot wooden fence. Of course, now he wants his 3 feet back. His proposal is to move my fence over 3 feet, reset it, remove/replace my existing double gate with a single one at his expense, and draw up a contract for both of us to sign.

I went to both my city assessor's office, and maps and surveys office. Both offices confirmed that my fence was on his property in the back of the house (3 feet) and that his fence was on my property in the front of my house by 3 feet. I did speak to him about this new development, telling him that I wanted an attorney to intercede on my behalf. Needless to say, he wasn't too pleased with my decision. What can I do? --Francine

DEAR FRANCINE: You, or preferably your lawyer, should explain that he may lose the 3 feet based on the concept of "adverse possession." This means that if you have used someone else's land openly and without permission, you can file a suit for adverse possession. Different states have different periods of time in which you have to use that property.

However, if you pursue this avenue, you run the risk that he countersues you claiming adverse possession of the property in front of your house.

I strongly suggest that you try to resolve this on a friendly basis. It may be that you will have to retain an attorney who can try to mediate an amicable solution. Perhaps each of you can give up a portion of your land. Otherwise, litigation may be your only recourse.

DEAR BENNY: We waited two years for a lake home's price to go down and we finally bought the home in May 2009. We were also lucky enough to sell our existing home the first day on the market. In light of Obama extending the tax credits for first-time homebuyers, we also heard about a new credit for homebuyers. Will we qualify for this new tax credit? --Mary

DEAR MARY: I am afraid that you bought your home too soon. As I read the new law, called "The Worker Homeownership and Business Assistance Act of 2009," only consumers who buy another principal residence after Nov. 6, 2009, are eligible for the up-to-$6,500 tax credit. That was the date the law was signed by the president.

If you already own a home that you use as your principal residence, and have owned and used it as your primary residence for at least five consecutive years out of an eight-year period ending on the date you buy a new principal residence, you can claim this credit. ...CONTINUED

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