Neighbors can be a blessing, a curse or some of both. When neighbors do not respect property lines, those neighbors are trespassing, and trespassing can cause a lot more damage than just hard feelings.
If possible, it is always best to try to discuss a continuing trespassing situation with the trespassing neighbor.
Usually, an allegedly trespassing neighbor will first try to argue about where the property line is located. Although it is necessarily imprecise and definitely not “official,” county auditor offices’ online GIS software can provide some pretty decent estimations of where property lines are located.
In property line location disputes, a licensed surveyor will be the ultimate decider of a property line’s location. The cost of a survey is usually paid by the party who claims that the other party is trespassing.
Alternatively, a trespassing neighbor may claim a legal right to trespass and use the neighbor’s property. This is called an easement. Easements that are legally enforceable are recorded at the local courthouse, which easements can be found through title examinations of both properties (the owner’s property and the allegedly trespassing neighbor’s property). The cost of that title examination (also called an “opinion”), which must be prepared by an attorney, is usually paid by the person who claims that they have an easement to use property that the person does not own.
Trespassing is a crime. However, like many crimes, prosecutors do not always pursue charges for trespassing.
Trespassing is also a civil matter that can be resolved in a lawsuit between private parties.
Outside of the courtroom altogether, many property owners try to stop trespassing on their own with fences or walls.
Ohio law generally provides that fences or walls can be erected along property lines, with no significant limitations as long as the fence or wall is built completely on the owner’s side of the property line. In fact, for agricultural fences in the countryside, the fence builder can often trespass up to 10 feet onto the neighbor’s property to build the fence if the fence builder is paying for the entirety of the fence.
Nevertheless, some townships and almost all municipalities (villages and cities) have zoning codes that limit the types, sizes, placements and aesthetic (looks) of fences and walls.
Many times, the limitations are based upon the type of fence defined by materials and the ability to see through the fence (opaqueness). Some limitations govern the heights of fences and walls and provide for minimal distance setbacks from the neighbor’s property line.
The legal justification for setbacks from the neighbor’s property line is often questioned by those who build fences or walls. It can be frustrating to come to know that a property owner cannot build whatever the owner wants as long as the property owner does not cross onto anyone else’s property. However, most often, a township or municipality that requires setbacks is trying to ensure that there are some minimally wide access points across, through and/or between properties for public safety, like fire or emergency medical services.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at [email protected] or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.