Fence Line Disputes and Encroachments
Both real estate agents and buyers may mistakenly assume that an existing fence is the property line. There may have been no disputes over it being the accepted line by former owners. They may have even cooperated together in the actual building of the fence, thereby referring to it as a party fence. However, at a later date with both a survey performed and now under different ownership a conflict may arise.
Historically, in the past it was not uncommon for boundary fences between rural land ownership to be fenced without a formal survey. The owners often did their own form of surveying or came to an agreement as to corners and fence placements. Rural fencing often reflected the construction to be one of convenience rather than exactness. Along with the using of posts, wire was often nailed to existing trees that were thought to be close to the line. However, over time, with increased land values and a more litigious society, neighbor conflicts and potential legal actions are more prevalent.
An existing fence line discrepancy or any encroachment (a trespass of improvements) can only be determined by a survey.
A real estate agent must exercise care when asked if the “fence is the line” or “are those the survey corners” to the lot. While visual evidence may appear strong it may be wrong! While rare, it is sometimes found that corners have been moved or evidence has been altered. An agent does well to inform the party that “I am not a surveyor, and a survey is the only means of verifying the answer to your question.” While an agent may have an “opinion”, if stated it must be understood as such and is not to be perceived as a statement of fact. To again clarify that only a survey would verify it to be factually correct is of utmost importance.
Occasionally, a certain loan program offered by a lending institution may not require a survey for lending purposes. A real estate agent should be careful to not suggest or support a buyers thinking that since the loan company does not require such, it is not important for them to have one performed. The lender may feel, even without a survey their collateral would be protected in the event of foreclosure. A fence off line a little, or perhaps a storage building encroaching either way would not significantly effect their financial position. However, this may affect the new buyer in the future when they elect to sell. As a future seller, if the then prospective buyer requires a survey and it reflects encroachments, guess who gets to pay for curing the problems. If, however at the time of the original purchase, a survey was provided and encroachments were found to exist, then normally the seller would have been required to provide the needed corrections. Because of such, an agent would do well to inform a prospective buyer that while a given loan program does not require a survey, the buyer may still want to affirm by survey the preciseness of property lines or corners. Both the providing of a survey and who shall pay the cost thereof is negotiable at the time of offering to purchase. When the agreement requires the seller to pay for the surveying cost, it may be wise to place a maximum cost to be incurred. Cost may vary considerably based on the expectations of the buyer. The buyer needs to verify if their expectations would require a survey of the boundary lines only or also a location of improvements within the boundaries. Seeking bids from more than one surveyor may well reflect a sizable difference for services performed. Often this is a result of one surveyor having previously done work in close proximity to the subject property being able to rely on prior field notes for a point of beginning. Whereas another surveyor, reflecting a much higher bid, may have an extensive amount of work required to establish a point of beginning due to lack of prior activity near the subject property. This extra work translates into additional costs. However, the surveyor with the higher bid may prove to be the lower bidder on the next property for the same reasons.
If a discrepancy results in a unresolved dispute between boundary owners regarding encroachments of such things as fence locations or other improvements, a court of law may have to make final determination based on a Quiet Title Action.
Real Estate Agents must not give legal advice.
(This writing is the opinion of the author. Nothing herein constitutes legal advice. Anyone seeking legal advice is advised to seek out a competent attorney).
