Dehlia Seim

Border Battles? How to Resolve that Boundary.

I’m not referring to the Viking-Packer rivalry, but the unpleasant discovery that a property boundary line may not be where you or your neighbor believed it to be. Real estate attorneys field these calls often, and it’s our job to help sort it out so everyone is happy or at least equally dissatisfied, as a true compromise tends to produce. Whenever possible, avoiding litigation is a goal, as taking a boundary matter to court removes the parties’ control over the outcome and the expenses can quickly add up. First and foremost, don’t run out and hire a surveyor before you talk to the neighbor and a qualified real estate lawyer.

How is a boundary line problem identified? There are a few circumstances when a boundary line gets a closer look. When property is put up for sale a buyer or the buyer’s lender may require a survey of the property before closing on the purchase. The surveyor might determine that the property line is not located where the seller believed it to be.

It can also come up when a legal description is called out in a title insurance commitment as being vague or in error, requiring a surveyor to plot the legal description and prepare a corrected legal description to reflect the original intention when the parcel was created. Title commitments are usually prepared in the context of a sale or loan refinance.

Finally, as counties have begun creating tax parcel maps using geographic information systems (“GIS”) and providing the public with online access to the maps, which sometimes have satellite imaging overlays. Property owners are reviewing the maps and realizing that the location they have been treating as the boundary does not match the county records. A word of caution on this: GIS created tax parcel maps are not the equivalent of a survey. These maps are usually not accurate and should not be relied upon without further investigation of the real estate records and a survey by a registered land surveyor. Nevertheless, the county maps create greater awareness for property owners and have been the cause of more boundary line inquiries in recent years.

Whatever the boundary line problem is, it may have been in existence for decades, or even since the parcel was first created, but is only being identified now as survey technologies have drastically improved and lending and sale practices have changed. Surveyors now have access to more records and to greater quality instruments to allow for accurate plotting, without risk of magnetic pull (due to the magnetic qualities of certain types of minerals locked into rock, sediments and soil), or reliance upon an old corner marker that is lost or in a swamp and cannot be located.

Boundary line discrepancies can have many implications. A common one is that an improvement, such as your garage or driveway, is located partially or entirely on a neighboring property. Conversely, an improvement owned by a neighbor might be partially or entirely located on your property. Other consequences include the following: you may not own as much acreage as you believed (causing zoning issues); your property may not have the shoreline frontage you thought; or your property may not have access to a public road or to certain utilities.

If you learn of a property line discrepancy, there are many ways to address it. The extent to which your property is benefitted or adversely impacted by the discrepancy will likely impact how you choose to resolve it. If you are selling your property or refinancing your mortgage, you may be required to correct the issue before the sale can close or before the lender will give the loan. A significant encroachment such as a building, utilities serving the building, or access, will most likely need to be corrected. More minor encroachments like a fence, trails, or even outbuildings may be of less concern to a buyer or lender. Common solutions include removing the encroachments or entering into a license or easement agreement to permit the encroachments. Sometimes you can close in escrow, with a set amount of the purchase proceeds held back from the seller until the issue is resolved.

Often the impacted boundary line will need to be surveyed by a registered land surveyor, who will then prepare a map known as a certificate of survey. Sometimes your entire parcel will need to be surveyed, along with the entire adjoining parcel. This is often necessary when creating “new” parcels or a new legal description if the cause of the boundary line discrepancy is based upon a faulty legal description. Once the property has been surveyed and any necessary legal description(s) prepared, the property owners can do one of the following:

  1. Create new parcels using the mutually agreed upon boundary line reflecting what the parties believed the boundary line to be. This can be done by the exchange of quit claim deeds or a boundary line agreement describing the background and transferring the new parcels to one another.
  1. Leave the boundary and the parcels as they are but grant a permanent easement for the encroaching improvement benefitting the property. The easement can be a simple “deed of easement” or an easement agreement granting the easement and describing the means in which the easement area can be used, or not used, including maintenance provisions, insurance provisions and methods for restoration if damage occurs.
  1. Leave the boundary and the parcels as they are but enter into a license agreement, permitting the use or occupancy, which permission is temporary and may be revoked upon the occurrence of some event. For example, a friendly neighbor relationship may permit an encroaching fence or trail until the encroaching neighbor sells, at which time the burdened neighbor wants an opportunity to revoke permission in case he does not like the new neighbor as much, or conversely, the burdened neighbor sells and may need to revoke the license if such license makes his property less desirable to buyers.

Whenever dealing with a boundary line question, keep in mind that government approval may be needed in relation to a proposed solution. The zoning ordinances in some municipalities provide for “boundary line adjustments” through a direct application process. The application generally requires a survey, or at least a plat sketch, along with legal description(s), and information as to the status of the real estate taxes (must be paid in full) and whether the “new” parcels following the boundary line adjustment will be conforming lots in compliance with the zoning ordinance. In addition, if there are mortgages on any of the affected real estate, the lender must consent to the resolution in writing, particularly when it results in a change to the legal description of the mortgaged property. This process of gaining written lender approval can be the most expensive and lengthiest aspect of resolving a boundary dispute.

Finally, if at all possible, start by talking to the owner or owners of the other affected property.  Cooperating, though difficult, will minimize the legal fees and expenses of the dispute.  Do so, however, only after reviewing the circumstances with a real estate attorney.

Dehlia C. J. Seim is an attorney at Fryberger, Buchanan, Smith & Frederick, P.A., practicing in the areas of real estate and creditor remedies. This article is not intended to give legal advice. You should always consult with an attorney when dealing with matters that affect your property rights.