A fence that sits on the wrong side of a boundary line is more than an annoyance. For developers, it can delay a closing, complicate a site plan, or shrink usable land on a parcel you already paid for. The good news is that Virginia law gives you a clear path to fix it. You just need to follow the right steps in the right order.
This guide walks through what Virginia law says about encroaching fences, how to approach the situation without starting a legal fight, and what happens if the problem gets ignored.
Does Virginia’s Adverse Possession Law Give Your Neighbor Any Claim to That Land?
Not right away, and often not at all. But you need to understand the risk.
Virginia law allows someone to claim ownership of land they do not legally own if they use it openly for 15 straight years. This is called adverse possession. It is written into Virginia Code § 8.01-236.
To win a claim like this, the neighbor’s use of the land has to be:
- Open and obvious, not hidden
- Continuous for the full 15 years
- Exclusive, meaning they treat it like their own
- Without your permission
“Open and notorious” simply means the use is visible enough that a reasonable owner would notice it. A fence sitting a few feet over the line usually counts.
Here’s the part many landowners miss. An old fence is not an automatic loss. If the fence has been up for less than 15 years, there is no claim yet. If a previous owner sold the property, the new owner can sometimes add their time to the old owner’s time to reach 15 years. This is called tacking. But the clock only keeps running if the use never stopped and was never challenged.
If you act now, you likely still have full control over the outcome.
Talk to Your Neighbor or Call a Surveyor First? Getting the Order Right
Call the surveyor first. Always.
It feels natural to knock on your neighbor’s door the moment you suspect a problem. Resist that urge. Without a survey, you are guessing at where the line actually sits. If you guess wrong, you can turn a simple fix into a personal fight, or worse, an admission that hurts you later in court.
A licensed land surveyor will locate the actual boundary using deed records and physical monuments in the ground. This gives you facts instead of assumptions. Once you have a marked plat in hand, a conversation with your neighbor becomes calm and factual instead of emotional.
Here’s a simple sequence that works well:
- Order a boundary or ALTA survey before any conversation happens.
- Review the plat with your surveyor so you understand exactly how far the fence crosses the line.
- Approach your neighbor with the survey in hand, not a guess.
- Propose a solution together, whether that means moving the fence or formalizing the line.
Most disputes resolve at step four. Few need to go further.
What a Virginia Boundary Line Agreement Can Fix, and What It Can’t
A written boundary line agreement is one of the least stressful ways to settle a fence dispute. Both neighbors agree on where the line sits, sign a document, and record it with the county. Once recorded, it becomes part of the property record for future owners to see.
This works well when both sides agree on the facts and just want something official on paper. It can save both parties from ever revisiting the issue again.
But a private agreement has limits.
- It cannot override a mortgage lender’s title requirements. If either property has a loan, the lender may require its own updated survey before it will recognize any boundary change.
- It cannot resolve a dispute where the neighbors disagree on the facts. If one side refuses to accept the survey, the only path left is a court action to establish the boundary line under Virginia Code § 8.01-179.
- It does not automatically transfer land. If the agreed line moves the boundary in any meaningful way, a proper deed transfer may still be required to make the change legally binding.
For developers, this matters most during due diligence. A private agreement between two homeowners years ago will not always satisfy a lender or title company reviewing a new ALTA survey today.
Who Pays to Move the Fence? How Virginia Handles Cost Disputes
There is no single rule that always applies. Courts generally look at intent.
If a neighbor built the fence honestly believing it was on their own property, cost sharing or a negotiated split is common. Courts tend to view this as a good-faith mistake, not a violation.
If the neighbor knew the fence crossed the line and built it anyway, the responsibility usually falls on them. Courts are far less sympathetic to someone who knowingly took land that wasn’t theirs.
In practice, most disputes never reach a judge. Neighbors settle the cost between themselves once a survey confirms the facts. Having documented proof of the true boundary, and of when the fence was built, gives you real leverage in that conversation.
What Happens If the Fence Stays Where It Is?
Doing nothing feels easier at the moment. It rarely stays that way.
An uncorrected fence encroachment tends to resurface at the worst possible time, usually during a sale. A buyer’s lender orders a new ALTA or boundary survey, the encroachment shows up on the plat, and the deal stalls until it gets resolved. Title insurance companies may also flag the issue and refuse to insure over it, which can delay closing by weeks.
For developers assembling adjoining parcels, an unresolved fence line can shrink your buildable area or complicate setback calculations without warning. What looks like a minor issue on paper can quietly reduce the value or usability of a site.
The earlier a fence encroachment gets addressed, the fewer people it involves and the less it costs. A current survey is the fastest way to know exactly where you stand.
