Fences: Title Issues

As a new home buyer, you have a lot on your mind. In addition to finding a home you like in the neighborhood of your choice, you then need to go through inspections, review legal documents, and hope everything goes as planned with the purchase. The last thing you need is an issue with the title related to property boundaries, but unfortunately, this occurs on a regular basis.

Many homes have fences surrounding the property. For many, this is a selling point for the home, especially if they have pets or young children. However, fences can also be a major headache when buying a home.

This is because in some cases, fences are erected either outside or inside the legal property line. Property owners should have a survey prepared and erect their fence consistent with the property line, but many skip the survey and install the fence based on their best guess of their boundary. And in most cases, this oversight is not discovered until one of the property owners affected sells his or her home.

Title Insurance and Fences

So what happens if a fence is outside the boundary of a property?
The title search and survey will likely reveal if there is an issue with a fence. If there is and the fence is located less than twelve inches of the property line, most title companies are willing to make an exception. If it’s more than twelve inches, the current owner of the home will need to request an affidavit from the neighboring property owner stating they are aware of the issue and make no legal claim to the fence or the land between the fence and the property line. Once the affidavit is submitted to the title insurance company, they more often than not insure it as if the encroachment is less than twelve inches.

If your soon-to-be neighbor refuses to sign an affidavit, he or she can acquire the land on which the fence was built under adverse possession. New York’s adverse possession law was updated in 2008. Call us if this is a concern of yours and we can discuss the law of adverse possession with you and how it may affect ownership of your property.

Don’t be offended if your new neighbor requests a fee to sign the affidavit – it’s a common request. They might also ask for an easement, which gives them the right to use the land in exchange for signing the affidavit, which is also common. Easements are recorded with the county in which the property is located and apply to all future owners of the homes in question. These all raise significant legal issues that you should consult with an attorney about.

Fences can raise a number of questions when it comes to the purchase of a home, and issues related to affidavits and easements can be complicated. If you have questions or you are looking for legal guidance to ensure you are protected when buying a home, contact the Law Offices of Elan Wurtzel by calling 516.822.7866.


(listed above in article) http://www.nolo.com/legal-encyclopedia/who-can-claim-property-based-adverse-possession-new-york.html