Where Is Your Property Line?
When buying real estate in New York, among the multitude of issues that should concern a buyer, one often overlooked issue is the property lines. Fences, for example, while they enclose the property, are sometimes not within a legal boundary line. To the unsuspecting buyer, it appears that the fences are the boundaries. A problem does not arise until the buyer becomes an owner of the property and realizes that the fences are not on his or her property. Then, the buyer—now the owner—has a problem.
Before erecting any fence, the wise course of action is to first have a staked survey prepared to know exactly where the property lines are. Many people either do not know to do this or do not wish to incur the expense. However, the result of not doing it may be that the fences are installed either too far inside the property (depriving the owner of land) or too far over the property line (intruding on the adjoining owner’s lot). Either way it is a problem and often it is not discovered until an owner or an adjoining neighbor attempts to sell his or her property.
When the fence is not on the boundary line, the owner adversely affected by the misplacement of the fence is referred to as being “out of possession.” If the portion that is “out of possession” is less than six inches, most title insurance companies will insure such an otherwise exception to insurance coverage; in other words, the title company will insure title to the property. However, if the out of possession portion is more than six inches, the selling party will need to request an affidavit from the encroaching neighbor stating that they know their fence encroaches beyond their property line and that they make no legal claim to the encroaching portion. This affidavit will allow the title company to insure title to the property. But if the issue is not discovered for some reason or the encroaching neighbor is not willing to sign such an affidavit, the encroaching neighbor could actually “acquire” the strip of land by operation of law under the doctrine of “adverse possession.”
Common driveways are also a source of boundary disputes between owners. A common driveway appears to be one large driveway, but actually serves two properties. A buyer should confirm that the buyer has equal legal access to the driveway. The buyer should also make sure that the neighbor on the other side of the driveway acknowledges the shared nature of the situation and is in good favor with the seller. In the best possible case, there should be an agreement (preferably in writing) with respect to access, driveway maintenance, snow removal, asphalt replacement and repairs.
In addition to doing your due diligence, the recording of an easement is another way to protect an owner’s property rights and access to property. The recorded easement will put the world on notice of an owner’s rights or lack of rights with respect to the property. If one is already of record, it should be reviewed to determine its validity and the benefits and restrictions it may afford.
Before erecting any fence, the wise course of action is to first have a staked survey prepared to know exactly where the property lines are. Many people either do not know to do this or do not wish to incur the expense. However, the result of not doing it may be that the fences are installed either too far inside the property (depriving the owner of land) or too far over the property line (intruding on the adjoining owner’s lot). Either way it is a problem and often it is not discovered until an owner or an adjoining neighbor attempts to sell his or her property.
When the fence is not on the boundary line, the owner adversely affected by the misplacement of the fence is referred to as being “out of possession.” If the portion that is “out of possession” is less than six inches, most title insurance companies will insure such an otherwise exception to insurance coverage; in other words, the title company will insure title to the property. However, if the out of possession portion is more than six inches, the selling party will need to request an affidavit from the encroaching neighbor stating that they know their fence encroaches beyond their property line and that they make no legal claim to the encroaching portion. This affidavit will allow the title company to insure title to the property. But if the issue is not discovered for some reason or the encroaching neighbor is not willing to sign such an affidavit, the encroaching neighbor could actually “acquire” the strip of land by operation of law under the doctrine of “adverse possession.”
Common driveways are also a source of boundary disputes between owners. A common driveway appears to be one large driveway, but actually serves two properties. A buyer should confirm that the buyer has equal legal access to the driveway. The buyer should also make sure that the neighbor on the other side of the driveway acknowledges the shared nature of the situation and is in good favor with the seller. In the best possible case, there should be an agreement (preferably in writing) with respect to access, driveway maintenance, snow removal, asphalt replacement and repairs.
In addition to doing your due diligence, the recording of an easement is another way to protect an owner’s property rights and access to property. The recorded easement will put the world on notice of an owner’s rights or lack of rights with respect to the property. If one is already of record, it should be reviewed to determine its validity and the benefits and restrictions it may afford.
