Is the Fence on My Property? Why you should get a new survey before you purchase a home in Staten Island June 17, 2009

wood property fence 150x150 Is the Fence on My Property? Why you should get a new survey before you purchase a home in Staten IslandA client comes in asking what to do about the letter from her neighbor’s lawyer.  It says her fence is over her property line and is encroaching on his property so she must move it or she will be sued.    She tells me that “We just paid $5000 for that fence and it is in the same place as the old fence so we shouldn’t have to move it.” I ask her to bring in the letter and a copy of her property survey which she should have gotten at her closing.  She sends over an ancient survey which doesn’t show the old fence (or pool or shed) which was added by her seller prior to her buying the house.   “My lawyer mentioned it but I didn’t want to pay the $800 for a new survey” and then “doesn’t the Buildings Department have a survey?”  Even if the Buildings Dept has a survey it wouldn’t show the fence so now she will need to get a new survey and if the fence is not located properly she will have to pay to move it.  This situation could have been avoided.  When buying a house make sure to get a new survey for the property.  Using the seller’s existing survey and having the title company do an inspection is an option which may save you money but it is not recommended unless the seller’s survey was done recently and there have been no changes made (deck, fence,  shed) after the survey was completed.  A purchaser should get a new survey to protect her investment.

WHY DO I HAVE TO MOVE MY FENCE

As an active Staten Island Real Estate Attorney I often get questions from homeowners about the location of fences and sheds. These questions invariably start “I received a notice from my neighbor telling me that my fence (shed) is over the property line and needs to be moved”.  When the client asks what to do I tell her I need to see a copy of the survey of her property so I can give her an opinion.  All fences and sheds should be located within the property lines indicated on your deed.  If they do go over the property line (encroach) your neighbor should ask that it be moved or it can lead to an adverse possession problem.  In this situation the property line is deemed to move to the end of the structure causing the person whose land is encroached upon to lose some property.  To avoid this problem when a structure does go over the property line (encroach) the offended owner should demand that the structure be moved, a written acknowledgment that adverse possession does not apply or if these fail then a lawsuit for trespass can be brought.  While most minor fence encroachments (less than 6 inches) do not affect title to the premises and do not warrant a legal battle between neighbors, it is still a good idea to try to make sure all your structures (and your neighbor’s) remain within the property boundaries otherwise when selling the property an issue can arise.  Before buying a property, or when you or your neighbor put up a fence it is best to have a survey which clearly shows the property lines and allows the fence to be put up correctly.  While attempting to put it right on the line is good, a few inches inside your property is safer. 

WHAT IS A SURVEY AND AN ENCROACHMENT

A survey is a property diagram prepared by a licensed surveyor. A title survey is prepared prior to a closing to show a property’s size and boundaries.  The surveyor prepares a line drawing showing the dimensions of the property (and house) along with the location of any other structures (decks, shed, fences, patios, pools) on or near the property boundaries.  The owner owns up to the property lines so all structures belonging to the property should be located within the boundary lines (not over).  Structures going over the property lines are said to be encroaching on the neighbor’s property. 

HOW CAN I TELL IF THERE IS AN ENCROACHMENT

If your neighbor complains you need to determine if it is an encroachment so a solution can be worked out.  Get a copy of both his and your surveys to compare to see if they match up and the problem can be resolved.  But what about a situation where the offending fence is not shown on the surveys?  Sometimes surveys will show dimensions from your house to your property line and then simple measurements can be done by the neighbors to determine if the structure encroaches.  If this doesn’t work a new survey must be prepared to settle the issue once and for all.  If the surveyor determines that the structure is encroaching it should be moved.  If this is not feasible your attorney can work out another solution like an easement or license agreement to allow the structure to remain without the neighbor having an adverse possession issue.   

CONCLUSION

Make sure before you buy a house that a new survey is prepared.  Make sure none of the structures on your property (or his) are over the property lines (encroach).  If encroachments do exist try to get them removed or get a signed writing from the neighbor to insure that if the encroachment remains that no adverse possession is created. Also whenever a fence is being erected make sure it does not encroach. 

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    Steven Decker is a New York Personal Injury attorney specializing in New York real estate law , New York business law, and New York franchise law. You can visit his Law Firm Decker, Decker, Dito and Internicola website by clicking here, download his FREE New York Car Insurance book, or call him at 718-979-4300 or 1-800-310-5520 for a free case analysis.

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    This post was written by Sdecker on June 17, 2009
    Posted Under: Home Owner Tags: , , ,
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