FENCES AIN'T HOSTILE?

In Perfito v. Einhorn, when the Perfitos filed suit to remove their neighbors from a portion of their property, the Einhorns claimed ownership of the disputed parcel based on the law of "adverse possession."

The Einhorns had a fence which encroached several feet onto the Perfitos' property. When the latter demanded the fence's removal, the Einhorns claimed that they had been told by their real-estate broker that the fenced-in area belonged to them and thus treated the area as their own since its purchase.

A witness also came forward on behalf of the Einhorns and indicated that he had resided at the property for many years prior to its sale, that the fence had been erected in 1971 by his parents, and that they had always exercised dominion and control over the disputed portion of yard -- in an open and obvious manner -- without their neighbors' permission.

The Westchester County Supreme Court sided with the Perfitos after finding "no evidentiary support for the critical and dispositive finding that the defendants and their predecessors had occupied this disputed property under a claim of right and without permission from plaintiff's predecessor." According to that court, the mere presence of a fence wasn't enough to establish a hostile invasion or infringement upon the true owners' rights to the land -- a necessary element of an adverse possession claim. The fence's erection was a "neighborly accommodation," that didn't satisfy the law.

We always thought fences were far from "neighborly" or "accommodating."

To download a copy of the Westchester County Supreme Court's decision, please use this link: Perfito v. Einhorn