09/27/2019
The Curious Case of Boundary Line Agreements, Fence Line Affidavits, and Adverse Possession in NY.
Imagine the following scenario:
You are in contract to purchase a home. Your attorney has ordered a title report and the survey inspection* reveals that the neighborâs driveway is encroaching onto your future property 5 feet! How dare he/she/they?!?
The reality is, homeowners rarely check their surveys or boundary lines before putting in an asphalt driveway, or even a fence or a shed. If the encroachment is a permanent structure (i.e., cannot be removed without changing the landscape of the property), like asphalt, the title company will require the neighbor to sign a boundary line agreement. Whatâs a boundary line agreement you ask? A boundary line agreement is a recordable form (read: will be recorded in the county clerkâs office the same as the deed to the property) that is signed by the neighbor in front of a notary and recorded in the county records book. It says the neighbor is aware of the encroachment and understands they donât own that extra footage. Why do you need it? Because adverse possession is a thing in NY. If the neighbor satisfies the requirements, they could have a winning argument that the footage of the encroachment is theirs by right of law, stripping you of that parcel of land. A Fence Line Affidavit is simpler, albeit similar in function: if the encroachment is a non-permanent structure like a fence, the agreement does not have to be notarized and recorded. This is because removing the structure would not compromise the landscape of the property and the structure can be removed, or moved, as necessary.
The nitty gritty: if you have to order a new survey and an issue arises, it could delay your closing by quite a bit. Especially if the neighbor is difficult to find or unwilling to sign the affidavit or agreement. Always be sure to ask the seller of the home if they have a recent survey, or if theyâve installed any fences or sheds on the property while theyâve owned it.
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*Survey inspection: A survey inspection is done by a licensed surveyor with the sole purpose of locating property lines. The surveyor uses specific equipment, maps and other recorded surveys to establish benchmarks in regards to property lines, thus identifying boundaries and potential encroachments.