Few real estate topics cause more disputes between owners than those involving activities at a common boundary. We have reviewed boundary line disputes involving trees that straddle property lines and fences that encroach upon boundary lines.

A recent Portsmouth case highlights another issue relating to boundary lines.

According to newspaper reports, neighbors in an upscale waterfront neighborhood shared an old patio. One neighbor, Pete and Pam Kloeppel, asked the other, Episcopal Bishop C. Charles Vaché, for permission to build a new patio that straddled the properties’ boundary line. The Kloeppels wanted assurances that after completion of the patio, they could use the entire patio for gatherings, not just the half of the patio located on their property. After receiving acceptable assurances from Bishop Vaché, the Kloeppels constructed the patio.

Things were fine for about 10 years until Bishop Vaché suggested that the agreement should be in writing. The Kloeppels refused to sign, so Bishop Vaché filed a “Declaration of License” in the land records, asserting that all he granted to the Kloeppels was a revocable license.  The Kloeppels countered by filing a “Declaration of Irrevocable License” (which I assume is the equivalent of an easement).

Bishop Vaché then filed a lawsuit to determine that status of the Kloeppels’ use of the shared patio. Unsurprisingly, the Circuit Court judge ruled that “Bishop Vaché never meant to give the Kloeppels an ‘easement or any kind of irrevocable right over any portion’ of his property.”

As it turns out, Bishop Vaché had sought legal advice in preparation to sell his property. His intent was to clear any “cloud” on the title of his real estate by confirming he had granted a license, not an easement to his neighbor. If he wanted to sell his property, a title search and survey could show some uncertainty regarding the shared patio. By recording the license, Bishop Vaché intended to remove any potential “cloud” on his real estate title.

It is unfortunate that so many disputes end up litigated in court instead of settled reasonably. However, with respect to real estate matters, property owners tend to take personally any encroachments onto their property, and any revocation of permission to use another’s property.

Lawsuits and trials can be avoided, or at least short-circuited, if you consult your experienced real estate attorney prior to taking any action that encumbers your real estate. You can save yourself much time, money and aggravation.

Tarley Robinson, PLC, Attorneys and Counsellors at Law

Williamsburg, Virginia

John Tarley

John Tarley

John is the firm's managing partner and chairs the firm's small business, zoning, and litigation practice areas.

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