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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1)    Schools – before making an offer, parents of school age children should find out the school zone as this will determine where your children will go.  While most grammar schools (through grade 5) are pretty good, some thought needs to be given for certain middle (grades 6-8) and high schools.  Even if you do not have school age children, school district is an important item to consider for resale purposes as potential buyers will look at the school zone as a benefit or detriment.

2)    Real Estate Taxes- Assessed Value and Tax Abatements – Newer is not better.
If you have a newer home real estate taxes can be much higher than on an older home worth the same amount.

A)    Assessed Value– Assessed value is a property value used by NYC to come up with a home’s real estate taxes.  The assessed value is set based on market value when the house was constructed.  Older homes assessed values started at a low market value while newer homes are assessed at the market value when they were built.  Since NYS law sets limits on how much tax assessments can increase on existing homes older homes traditionally have lower assessments (and tax bills) than newer homes of the same value.
B)    Tax Abatements – one good thing about new construction is that NYC offered a tax abatement program which cut real estate taxes on new construction for the first 8 years after construction.  If a home has an abatement while taxes are less initially, they will go up for eight years until reaching market level.  Keep this in mind when looking at a house with a time left on the abatement as the taxes will continue to go up as the abatement lapses.

3)    Homeowners and Flood Insurance – Staten Island is an island and certain parts are in areas known as flood zones.  This is based on the homes proximity to bodies of water (bays, streams, lakes) and elevation above sea level.  The Federal Emergency Management Agency (FEMA) has maps indicating areas at risk for flooding (flood zones).  If you are in a flood zone you will need to get flood insurance in addition to your regular homeowners insurance.  Flood insurance is expensive and even more troubling is that many companies are now refusing to issue homeowners insurance to near flood zones.

4)    Transportation – Staten Island has a serious shortage of public transportation.  One train line, the ferry and some buses do not adequately serve the needs of 400,000+ people.  Make sure to understand that in some parts of Staten Island you need a car or car service to get around.

5)    Commute Time – take a good look at Staten Island’s major roadways in rush hour before you decide on a neighborhood.  During peak times the SI Expressway and major roads (Hylan Blvd, Richmond Avenue, etc) are extremely crowded.  Make sure you understand that a short distance commute (to NYC) can take hours.

Besides affordability and housing style, these 5 factors make a critical difference in the enjoyment you will get from owning your own home in Staten Island.  A knowledgeable, experienced Staten Island Realtor should be able to get you this information before you make an offer.  Have your realtor find school information and which grammar, middle and high school will be zoned for.  Have her investigate the real estate taxes and if you will need flood insurance.   Check for yourself the transportation and commuting issues a home may have for your daily lifestyle and work habits.  Getting the true answer to these 5 important questions can insure that before you get into contract that you are getting a home you can afford and enjoy.

Steven Decker is an experienced Staten Island real estate attorney.  He has successfully helped thousands of clients purchase homes in Staten Island, NYC’s 5 boros, and New Jersey for over 15 years.

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Most buyers purchase homes with the assistance of realtors and develop a good relationship with their agent but many are not aware that the broker is still working for the seller.  This does not mean that the broker is not being helpful or getting the buyer a good deal, but it does mean that his primary loyalty is to the seller.  Before selecting your realtor discuss this with your attorney and sure your agent is doing her best for you.

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