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"Your Neighbor’s Fence is on Your Property" Clearing Up Boundary Issues in Residential Closings
By Chris J. Coschignano and Nicholas Cappadora
It is a situation that can exist for years without your knowledge, until you are under contract to sell your home. Your neighbor unknowingly installed a fence, paved their driveway, planted trees or shrubs, or erected a shed or other improvement on your side of the shared property line. An important legal issue now comes into play, in that a title company may refuse to insure title to the purchaser of your property unless the encroachment is removed so that you are no longer "out of possession" of your property. Property is deemed "out of possession" when your neighbor is physically occupying a portion of your land and is using it as though it were their own. Worse yet, your neighbor may actually believe that they have a legal claim over that portion of your property through the legal doctrine of "adverse possession." If you are lucky and have a cooperative neighbor you can knock on their door, explain the situation you are in, and politely ask them to remove the encroachment. Even if things are resolved amicably, it is always good practice, and often required by title companies, to enter into something called a "Boundary Line Agreement" with your neighbor.
A Boundary Line Agreement accomplishes several important things: (1) it defeats any ownership claim, by adverse possession or otherwise, that your neighbor may have raised due to their continued encroachment; (2) it will provide you with clean, insurable title so that you can sell your home, even if the encroachment continues after closing; (3) it will set forth how the parties will treat the encroaching structures going forward; and (4) it will keep peace (hopefully) between you and your soon to be former neighbor! The Boundary Line Agreement would be recorded against your property to put the rest of the world on notice and to protect future owners of your property.
If you're unlucky, and your neighbor refuses to remove the encroaching structure and/or sign a Boundary Line Agreement, then you can file an action for ejectment in court. If successful, this will quiet title to your property and provide you with a court order requiring your neighbor to remove the encroaching structure(s). A court may even award you monetary damages against the trespassing neighbor for withholding full possession of your property during the period of encroachment. This is a much lengthier and costly option compared to executing a simple Boundary Line Agreement and can be particularly burdensome if you are already in contract to sell your property.
If you or someone you know is facing this or similar issues, please contact our office to speak with an experienced real estate attorney on your legal options. More often than not, simple solutions to common problems are out there, and a knowledgeable real estate attorney with the common sense and expertise to resolve ordinary issues can make a world of difference.
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