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Eave overhang immaterial to adverse possession claim

Virginia Lawyers Weekly//July 25, 2022

Eave overhang immaterial to adverse possession claim

Virginia Lawyers Weekly//July 25, 2022//

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Where the court previously ruled that the boundary line between the parties’ property is defendants’ fence, which is on land defendants obtained by adverse possession, the fact that a roof eave on plaintiffs’ shed overhangs the fence does not defeat the adverse possession claim.

Further proceedings to determine a new boundary line are not necessary.

Posture of the case

“This case is before the Court on the parties’ dueling Motions to Reconsider this Court’s Letter Opinion of March 6, 2022, and Final Order of March 9, 2022, wherein the Court ruled that the boundary line between their properties is determined to be the location of the Defendants’ fence separating their land from that of Plaintiffs.

“This second Letter Opinion addresses the matters of apparent first impression why no follow-on court proceeding is necessary to establish anew the factual finding of the new boundary, and what degree of interference with the fencing of land is required in order to defeat the exclusivity requisite to establish adverse possession.”


“The Court holds that the Plaintiffs’ shed roof eave, to the extent that it overhangs any part of Defendants’ fence where such fence extends over onto Plaintiffs’ land, does not interrupt the exclusivity or continuity of the fence that Defendants maintained over 15 years so as to break the establishment of adverse possession.

“When a person is deemed to be in actual possession of the land of another through fencing that shuts out the rightful owner, like is the case by Defendants, action must be taken by such rightful owner against such adverse possessor in a manner that interferes with how the land would be used by an average owner exercising dominion over such terrain in order to disrupt adverse possession.

“Plaintiffs’ shed roof eave, by its height and location, did not disturb or restrict Defendants’ normal and average use of the disputed ground.

“Consequently, for the reasons as delineated in this and its March 6, 2022, Letter Opinions, the Court’s Final Order entered March 9, 2022, is reaffirmed.”

Willems, et al. v. Batcheller, et al., Case No. CL-2020-6575, April 21, 2022, Fairfax County Circuit Court (Bernhard). John C. Altmiller, Leonard C. Tengco, counsel for plaintiff. Michael Kalish, counsel for defendants. VLW 022-8-028, 4 pp.

VLW 022-8-028

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