Get Your Fence Off My Property!

This battle occurred in a very nice neighborhood in Fayetteville. The case, Kirkland v. Sandlin, involves a fence that deviates from the property line.

Quick rundown on the facts:

In 2000, the Sandlins purchased a lot adjacent to he Fulbrights in Savanna Estates in Fayetteville. The Sandlins went to the Fulbrights and said they’d like to erect a fence on the boundary, but were unsure where it was. Rather than survey, they agreed on a line, the Sandlins erected their fence, and both sides landscaped up to the edge of it.

In 2003, the Fulbrights sold to the Salters. Surveys prior to sale showed the fence was not on the line and encroached on the Fulbright/Salter property, so the Sandlins offered to buy the disputed area for $10,000. The Salters decided not to sell, and said they’d work it out later.

In 2008, Salters, having not worked it out, sold to Kirkland. Prior to the sale, Mr. Salter notified Mr. Kirkland of the encroachment, and told him he could either ask the Sandlins to buy it or tell them to move their fence. The Sandlins were not part of the conversation. Shortly after closing, Kirkland demanded the fence be moved, and this lawsuit resulted.

Kirkland claims the boundary line is a result of a mutual mistake, and Sandlin claims it’s a valid boundary line agreement. The elements for a valid boundary line agreement are:

1. Uncertainty or dispute about the line;
2. Agreement between adjoining landowners;
3. Line fixed must be definite and certain;
4. Possession following the agreement.

Justice Henry found all of the elements present dating from the Sandlin-Fulbright agreement, and thus the fence could stay. She rejected Kirkland’s argument that the line was the result of a mutual mistake, which is where the parties mistakenly agree on a line believing it to be true. In this case, the Sandlins and Fulbright did not attempt to determine the true lot line, just a mutually agreeable one.