So you just purchased a vacant lot and you build your dream home with the beautiful, white vinyl privacy fence. You have a survey done and build your home-based upon that survey, leaving ample room to add a pool in the back yard or maybe a patio with a Jacuzzi. Or so you thought until your backyard neighbors hand you their survey showing that the fence you installed was ten feet onto their property. Now you are trying to negotiate with your neighbors and the surveying company trying to reclaim land you thought was yours or to be compensated for the faulty survey. Instead of your dream home and your backyard oasis, you are tearing out fences, losing precious square footage, and coming to the realization that you no longer have sufficient space to install a pool.
More often than not, property owners do not know the exact boundaries of their land. Maybe a survey is inaccurate as in the example above. Maybe a fence gets put up that is not inside the property line or trees are planted outside of the legal lines of the property. Maybe a legal description on a deed is inaccurate and has been like that for a long time. Maybe a neighbor has been occupying a portion of the land for long enough to claim ownership of it, under a theory of “adverse possession.” These may not be a problem with the current owner and the current neighbors, but when the owner goes to sell the property or a neighbor does, this imprecise use of property boundaries can cause substantial issues with the sale of the land and even prevent a sale from closing. Addressing potential boundary disputes in advance of closing can ensure that a sale actually closes and help avoid costly litigation. Here are some suggestions to help avoid, or identify early, issues related to real property boundaries.
• Before you list your property for sale, hire a licensed and insured surveyor to survey the property boundaries and, if in doubt, to place markers along the boundary line. Make sure you get a copy of the survey from the surveying company that is signed and stamped by the licensed surveyor.
• If you are thinking of installing a fence, have your surveyor place a string along the property boundaries between the survey stakes. Thus, when the fencing contractor installs the fence, the contractor can follow the staked perimeter along the property line. Also, make sure that your fencing contractor is licensed and insured.
• Should you discover an encroachment by or against a neighboring property owner, you should address it as soon as possible. A simple approach is to attempt to resolve the dispute through a simple boundary line agreement whereby the adjacent property owners acknowledge that the record boundaries of their properties govern over any use of the property. Some other options are to negotiate the purchase of the property from the neighbor or negotiate an easement over the property in question. Be aware that an outright purchase may have unintended consequences and costs resulting in a need to re-subdivide the two parcels of land. As such, there could be unintended land use consequences that may result in restrictions on rebuilding or making improvements to one of the properties because the property might now be undersized for the existing or proposed development and/or improvements. Remember, any boundary line agreement, deed, or easement must be recorded in the official records in the county where the properties are located to prevent a title issue later.
• If you think that the boundary dispute will not resolve itself amicably, then doing your due diligence before running to court can greatly assist in potentially resolving the matter quickly. As mentioned above, getting a new survey is one of the first steps. Getting an appraisal as well will help you understand the value of the piece of land that is in dispute. Getting a title search done may also uncover prior easements or legal descriptions that will help define the boundaries and assist in determining your strategy going forward.
The takeaway from all of this should be that if you suspect or identify a boundary dispute on your property, address it sooner rather than later. The ability to sell your property will be greatly hindered and, in most cases, will be precluded until the issue is resolved. If you think there is a boundary issue with your property, please consult with a qualified local real estate litigation attorney as soon as possible.”
Sincerely,
Mark C. Mann, Esq. mmann@berlinpatten.com
Berlin Patten Ebling, PLLC
This communication is not intended to establish an attorney client relationship, and to the extent anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.
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