By Steve Tytler Herald Columnist
Question: I purchased my property in 1987. The surveyor had iron bars and wooden stakes at all four corners of my property. Now, another surveyor comes along and surveys the property on the east side of me and ends up putting two iron bars and wooden markers two feet inside of my two markers. My property was short-platted in 1987; the fence that runs along my property line has been standing since 1960. What is my next step?
Answer: First, contact your title insurance company to see if your policy covers boundary disputes. More than likely it does not, unless you paid extra for an extended coverage title policy when you bought the property. However, the title company may still be willing to assist you. At the very least, they should be willing to research your property’s legal description.
Next, get a copy of the survey of your property and ask for a copy of your neighbor’s survey. Look at the two surveys and see how they compare to the legal description of your property. There may be an obvious error that you can catch yourself.
However, you’ll probably have to contact the surveyor who did the survey on your property and ask him to explain the discrepancies between the two surveys.
There is usually a definite explanation of why two surveys do not agree. For example, the “monument” (a visible marker used to establish the starting point for a survey) may have been moved or altered. This can happen when streets are torn up to install utility lines, etc. Sometimes the monument is replaced in the wrong position. In other cases there may be more than one monument, causing surveyors to disagree on which monument to use.
In some cases, the monument may disappear altogether, and the surveyor must start at a much greater distance from the property, increasing the margin for error.
Modern surveying equipment is much more accurate than the equipment of even a couple of decades ago, so the problem is usually not because of a faulty measurement, it’s more likely to be caused by starting in the wrong place.
For example, if all of the legal descriptions in a given subdivision are based on a starting point in the northeast corner of the subdivision, a surveyor starting in the southwest corner of the subdivision could very likely come up with boundaries that are off by anywhere from a few inches to several feet. And like any other profession, some surveyors are simply better at their work than others.
That’s why you need to compare the two surveys. Did both surveyors use the same starting point and the same basic information to arrive at their boundary lines? And if they did not, which survey is correct?
In some cases, both conflicting surveys may be accurate because the legal description themselves overlap. That’s why the words, “more or less” are usually included in legal descriptions.
Another option to consider is the legal principle called “adverse possession.” Assuming that the two feet of property in question is technically on your neighbor’s lot, you may still be able to claim title to the property under adverse possession.
To qualify, you must meet certain legal tests: 1. You must have continually used the property for at least 10 years without interruption. 2. Your use of the property was open and obvious to the legal owner of the property. 3. Your use of the property was “hostile,” meaning that you used the property without the owner’s permission. 4. You had exclusive use of the property, such as fencing it off from the rest of the neighbor’s property.
It sounds like you might meet those tests, but please consult an attorney. Adverse possession is difficult to prove in court because judges are very reluctant to take property away from one person and give it to someone else.
Hopefully, you can resolve this dispute amicably with your neighbor by having an attorney draw up a “lot line adjustment” agreement. This may or may not involve some kind of monetary settlement, that is negotiable.
But if the neighbors are not cooperative, you may have to battle it out in court. The problem is that you never know how a judge might rule. You might think that you have a slam-dunk case and the judge could still end up ruling against you. So that’s why it’s much better to try and work out some kind of settlement with your neighbor.
Steve Tytler is a licensed real estate broker and owner of Best Mortgage. You can email him at firstname.lastname@example.org.