Real Estate Advisor: January 2013
Testing the Boundaries
Ownership of real property is a privilege that once belonged only to kings and nobility, and as masters of our own domain we each take our home and lands very seriously. It is no wonder that boundary disputes can provoke the nastiest of all sentiments between neighbors. Many of these disputes can be avoided, however, if both parties have a clear understanding of facts, proper documentation, and a willingness to come to fair agreements.
Know your Facts
Boundary issues can arise at any time - so one of the very best ways to avoid an issue around property lines is to know your facts. The time to do this is before signing a purchase agreement. When purchasing a home on land, there is no substitute for a thorough check on property lines, including a clear understanding of the deed of title, and land record, or "plat." If you are purchasing a condo, or a home in a community, study all the documentation you can about your unit, storage and ancillary areas that come with the unit, and common areas, rules around building or renovating fences, screens, or dividers.
Learn about your rights and responsibilities around trees, landscaping, driveways and sidewalks, or any area where you might come into contact with your neighbors. If there is a view involved, understand any community or local view ordinances, and consider entering into an agreement with neighbors regarding your view, going so far as to purchase those rights. Offering cash to procure a written contract may seem excessive, but your rights will be protected and may be upheld in a court of law.
Drawing the Line
Property lines should be clearly described in official records including a property title and land plat. Establishing where lines are up front will aid any interested party prior to clearing, building, or using land. Online resources make these records readily available in many areas, though finding markers on site may prove more of a challenge. When in doubt, hire a licensed surveyor to establish where the property line is actually located and mark the findings clearly.
When you are conducting your search for issues on any property that you are considering buying, it is well worth your time to understand mineral and water rights, forest issues, rights of water and well and other covenants. Know if there are any easements on your property - "Right of way" enables property owners who would otherwise not be able to gain access to their land to do just that. Usually this is accomplished by negotiating an easement across another property. If there is a recorded easement on your property, it may be exercised at any time.
In addition to your rights with regards to property lines, it is important to understand your responsibilities. Before building, clearing, or using property close to a boundary line, ensure that you have a thorough grasp of the building codes in your locality. Building over, on, or close to a property line may violate laws and incur costs that are avoidable.
The value of some property is greatly enhanced by its view. Views, however, can change if a neighbor plants or builds obstructions. Many areas have rules and regulations governing the obstruction of views, however it may be wise to enter into your own agreement with neighbors, even offering a cash incentive for ensuring your view is safe. Contracts are advisable, as they ensure that these rights are enforceable by a court of law, should the need arise.
The most common and often frustrating property line issues arise around the common fence. Whether designed to distinguish the property lines, provide privacy, or to contain livestock and other animals, fence owners invest a significant amount of money and time in construction and maintenance of these valuable assets. In some areas fences are owned and maintained cooperatively between neighbors, though other places one party owns and maintains the fence. Understand your rights and obligations regarding fences on your property lines. Unduly high fences or plantings designed to create barriers can present an eyesore, obstruct a view, or violate local ordinances. When this is the case, it may be deemed a "spite fence" and legal action might be considered, though it often takes time and money.
The Trouble with Trees
While many people cherish and value trees, like all living things they have a lifespan and needs that must be met. Large trees that overhang buildings, fences, or boundary lines pose a threat. Trees that lean across lines may present special situations that affect homes or fences, and there are often laws protecting each party's interests. While perfectly healthy trees can fall or break given specific circumstances, if neglect can be proved, a property owner might be liable for damages. Understanding your responsibilities around pruning and maintaining trees on your property is key.
Insurance companies may get involved when damage is incurred by falling trees or tree limbs, though if negligence can be proven your insurance rates might be affected. Knowing the health of trees on your property, and taking measures to ensure that they don't damage your neighbor's home or property, is the landowners' responsibility.
Felling large trees is a difficult endeavor and should be undertaken only by qualified individuals who are bonded, licensed and insured. Speaking with your neighbor prior to the work may reduce concerns, but also evoke some unwanted emotion. Trees that have been established for many years might be missed by some, while others might be relieved with the removal of a diseased tree or welcome the additional natural light. Tree work that may pose any risk to your neighbor's property should be discussed prior to engaging in the work.
The term "encroachment" refers to a piece of real property that hangs over the boundary of another landowner's property. Trees or bushes are naturally occurring, while buildings or structural encroachments may be accidental or intentional. Generally, there are laws and precedents in place that are designed to aid parties in sorting out disputes. If you don't know or understand the laws, a real estate lawyer can provide assistance.
Buildings that are already in existence, but that have been built on another person's property present a special problem. When possible, both property owners should work together to design a property line adjustment that is equitable to both parties. While there is a temptation to resolve the issue through the court system, legal battles can be expensive, and the relationship between the land owners is often stressed to the breaking point.
While there are plenty of instances of having to raze, move, or alter a structure due to judgments against the owner who is violating the property line, there are also many neighbors who have found equitable ways of resolving the issues through a land-swap or cash agreement. Encroachment is a serious issue, and consulting with a real estate lawyer is highly advised.
In the Event of Emergency - Know the Emotional Climate
Whatever you do, avoid making decisions or confronting a neighbor when emotions are high or facts are in question. This may be difficult when highly paid contractors are on site to cut trees, dig trenches or construct fences or buildings, but ensuring that the issue is dealt with up front might avoid costly reparations on in the future, or months mired in legal proceedings should one party take the other to court.
There is a well-known saying that dictates, "Fences make the best neighbors." While it might sound cleaver, the truth is that Good Neighbors make the best neighbors. When there is an issue around boundaries, nothing drives the point more to home. Increasingly, neighbors might not know one another. Privacy and busy lives sometimes create the feeling of neighbors being more like two ships passing at night, trying to avoid one another. However, when you know your neighbors, it helps you to understand their relationship to their boundaries. Generally, when there is an issue between two parties that know each other, it is easier to resolve. When purchasing property you can't choose your neighbors, but you can ask good questions about them, and you can ask questions about the property lines and fences.
If you are in a dispute over property lines, rights of way and other boundary issues -- be a good neighbor and treat your neighbors as you would want to be treated. If you are in a community or condo, there may be a group designed to help work through issues like yours. Mediation may be a way to avoid costly litigation, and may aid you in finding ways to adjust the property lines so that there is equity. Finally, once an issue has been resolved, ensure that all property lines and agreements are clearly and legally recorded and marked so that everyone is clear from then on.
Rich Perillo , Broker
SFR, CDPE Certified