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Neighbor’s fence could make it harder to sell home

Dear Benny: I hope you can help me.

I am a 78-year-old single woman living alone. Some weeks ago, my next-door neighbor fenced in his backyard with gothic picket fencing.

There was an old wire fence about 4 feet tall on my property separating our backyards. Before he started, he called me over and said he would do whatever I wanted: put the fence on the property line or take down my fence and put his in its place.

Knowing he wanted an answer right away — as the installer was there with him — and thinking the fence was probably a foot or two at the most inside the line, I told him he could put it in place of mine.

I now believe the fence may be farther into my yard than I first thought. Do you think it would be a good idea for me to ask him to purchase the strip of land, the entire length of which is 139.28 feet from front to back?

I’m concerned there may be a problem, especially for him, if and when I sell my property. –June

Dear June: The first thing you should do is to obtain a survey of your property.

A surveyor can quickly determine whether the fence is on your land or not. You can find surveyors in the Yellow Pages, or online, and the cost should not exceed $300 to $400.

If the fence is really on your property line, you have three choices. First, demand that he remove it, since he is trespassing on your property. Second, ask him to buy that strip of land, although he may not want to do that. Third, you can just leave the situation as is.

However, the last alternative can cause problems for you if and when you ever want to sell your house. Mortgage lenders usually require that their potential borrowers, the homebuyers, obtain a survey. If the fence is on your land, your buyer may be concerned about this.

Why? Many states have laws called “adverse possession.” This means that if your neighbor openly, notoriously and hostilely puts his fence on your property, and the requisite statutory period of time has elapsed, your neighbor can claim the land as his own.

This does require court action but, generally, when a person puts up a fence, the courts don’t have to spend a lot of time deciding the case.

If you opt for the third alternative, at the very least you should send your neighbor a polite letter, advising him that you are consenting to his encroachment for the time being but nevertheless reserve all rights in the future to demand he take it down.

Why this letter? Remember that one of the tests for adverse possession is “hostility.” That means that the fence was put up against your wishes.

If you consent, and keep the letter in your files, you have removed this defense.

Dear Benny: Regarding a recent column, sorry, but you are wrong about the capital gains tax on the gifted million-dollar house.

The tax would be 28 percent of the capital gain, not 15 percent. The alternative minimum tax applies to capital gains, not just income. That million-dollar gain on sale of the house would push your reader way into AMT territory.

I received assets from my father’s bypass trust when my mother died. I sold the assets expecting to pay 15 percent on the capital gains. The capital gains pushed me into the AMT and I had to pay 28 percent tax on the appreciation of the assets since my father’s death in 1996.

Look at page 2, line 53 of the AMT form for the calculation. No one mentions this little trap when they talk about the so-called Bush tax cuts. The bypass trust turned out not to be a great thing taxwise. –William

Dear William: I don’t profess to be a tax accountant, and learn a little every day.

I believe you are correct (I did look at IRS Form 6251). However, I cannot provide specific legal or tax advice, and accordingly urge readers to consult with their own tax and legal advisers.

Benny Kass is a practicing attorney in Washington, D.C., and Maryland. No legal relationship is created by this column. Questions for this column can be submitted to benny@inman.com.

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