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Court erred creating new property boundary line

Jason Boleman//September 10, 2023

Wooden fence separating yards


Court erred creating new property boundary line

Jason Boleman//September 10, 2023

The Court of Appeals of Virginia reversed in part a decision from the Fairfax County Circuit Court, finding that the trial court erred in declaring a new boundary line between neighboring properties in a nuisance and trespass case.

The issue was raised by the appellants after the March 2022 opinion found that the circuit court could declare a new boundary line, which the court ruled was the fence line between two neighboring properties.

The circuit court found the fence was “trespassory,” but declared the new boundary line because the fence had been standing for 15 years and was continually maintained by the appellees.

On appeal, Judge Clifford L. Athey Jr. found that adverse possession “was not sufficiently plead” and reversed and remanded that portion of the opinion.

“Here, the appellees failed to request in a responsive pleading that the circuit court declare a new boundary line or to grant them title to the disputed strip of property,” he wrote.

Judges Randolph A. Beales and Mary Grace O’Brien joined Athey’s opinion in Willems, et al. v. Batcheller, et al. (VLW 023-7-311).


Appellees James Batcheller and Christine Bartoletta bought their home in 2002. They built a fence between their property and the adjacent property the following year, where it remains.

Appellants David and Petra Willems bought the adjacent property in 2015 and repaired the roof of a utility shed that overhangs the fence.

After various disagreements, the Willemses filed a complaint in circuit court in 2020 claiming the appellees “currently maintain a fence … that encroaches upon” their property and that bamboo planted on the appellees’ property “invaded” their property.

They further sought a trespass count based on the bamboo, as well as a claim that the bamboo’s encroachment is a nuisance.

The appellees countered that they weren’t the original planters of the bamboo, and that they “established a boundary line via maintenance of a fence between the two lots owned by the parties,” noting that they’ve maintained the fence for more than 15 years.

As reported in Virginia Lawyers Weekly in 2022, Fairfax County Circuit Judge David Bernhard found the spread of the bamboo to be a nuisance and trespassory, ordering the appellees to “take permanent measures to control” the bamboo planted along the fence line.

As for the fence itself, Bernhard determined that it was trespassory, but that the appellees “could maintain adverse possession as an affirmative defense and that they have succeeded in proving the defense.” He rejected the Willemses’ claim that adverse possession had to be pled as a counterclaim.

The judge concluded that the circuit court could declare a new boundary line — in this case, the fence line.

The Willemses moved for reconsideration of the order, assigning error to the declaration of a new boundary line.

In a second letter opinion, the circuit court opined that “no follow-on court proceeding is necessary to establish anew the factual finding of the new boundary.”

This appeal followed.


Athey said the circuit court couldn’t declare a new boundary since the appellees failed to file a cross-claim and ask for the declaration of a new boundary line.

“[T]he declaration of adverse possession as one of the affirmative defenses in the Answer failed to pray for any relief except to ‘deny the relief sought by the [appellant]s and dismiss this action with prejudice,’” he wrote.

Here, the appellants “were only provided notice, based on the pleadings, that the appellees intended to affirmatively defend the trespass action based on the affirmative defense of adverse possession. Since the circuit court granted relief not sought, the circuit court lacked jurisdiction to grant said relief, and the relief is void,” Athey explained.

The judge agreed that adverse possession may be couched as an affirmative defense.

“However, pleading adverse possession as an affirmative defense, rather than as a cross-claim, does not abrogate the fundamental requirement that only relief affirmatively requested in a pleading may be granted by a circuit court,” he pointed out.

Athey remanded the matter to the circuit court for further proceedings. He declined to address the appellants’ second assignment of error that said the trial court erred in granting the appellees title to a portion of property along the fence.

Remaining claims

Athey found the trial court did not err in any of the remaining claims on appeal.

Among those claims were assignments of error presented by the appellees regarding the rulings that the bamboo was a nuisance and trespassory.

“On appeal, the appellees fail to argue that harm from damaged shingles is insufficient to support a finding of nuisance,” the judge wrote. “Instead, they argue that no evidence of harm was presented during the trial. This assertion is simply incorrect based on a cursory reading of the record.”

The trial court was correct in ruling that self-help was “an insufficient remedy” and in granting the appellants’ requested relief.

Finally, Athey rejected the appellees’ argument that the statute of limitations should have barred the appellants’ claims.

“Here, the appellants pled that no sufficient remedy existed at law and were therefore seeking equitable remedies based on their claims of trespass and nuisance regarding the bamboo,” the judge wrote. “Hence, by the plain terms of [Va.] Code § 8.01-230, the right of action was not deemed to have accrued at the time the injury began and the five-year statute of limitations does not apply to their claims.”

‘Significant’ rulings

Tysons attorney John C. Altmiller, who represented the Willemses, said the rulings on the statute of limitations were significant.

“Although the court simply applied to the applicable statutes according to their plain meaning, I think the result might surprise many practitioners,” he told Virginia Lawyers Weekly.

Altmiller noted that the decision may be of specific concern to attorneys practicing real estate litigation, as parties frequently seek equitable relief as opposed to money damages.

“I believe that this is the first appellate case in Virginia that affirmatively states that the statute of limitations does not apply to claims for solely equitable relief,” Altmiller said.

Attorneys for the appellees did not respond to a request for comment by deadline.

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