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 Your survey indicates that the fence encroaches your way; your neighbor’s survey indicates that the fence encroaches in their direction; or perhaps you split the cost of a survey and you found that the fence encroaches one way or another … what should be done now?

First try to find out the following facts:

  1. Who built the fence;
  2. When was the fence built;
  3. Who all vouches for who and when the fence was built;
  4. Does everyone agree to the timeline;
  5. Is there a survey which shows the fence was in place during this time been recorded; and
  6. Is there any other physical evidence to indicate when the fence was built.

Who built the fence could be important because its removal might be construed as a certain type of property destruction which might allow you to claim treble damages as well as reasonable attorney’s fees and costs.

Evidencing when the fence was built, especially if in excess of 10 years, is a very significant determinant of whether or not adverse possession has been perfected.

However, there is a big difference between having adverse possession perfected and having title recognized. Based on your newfound awareness, as Rod Serling used to say: “You have now entered the Twilight Zone“.

What good is a right that is not recognized!

Well, you have four basic courses of action. They are the following:

  1. Do a Boundary Line Adjustment (“BLA”);
  2. File an Adverse Possession or Quiet Title Action;
  3. Negotiate with your neighbor and then Record an Easement; or
  4. The highly unrecommended – Do Nothing!

I will go through the benefits and detriments of each of these four choices (and will return to provide forward links to the content of each). But by way of hint, if you and your neighbor can keep your heads about you, to Record an Easement is most likely going to be your best bet!justice-smiles-green.png

  • A survey should not say that something encroaches. In matters of encroachment, I would prefer that my peers in the land surveying profession refrain from using the term “encroachment” on survey maps, plats, etc. An encroachment is a legal condition, not a matter of survey, and thus should not be identified as such by a surveyor. A man-made structure, large tree, or anything else that a land surveyor can “see” during the course of a survey on the ground should be identified on the map, plat, etc. as exactly what it is, e.g. shed, tree, electric transformer; a distance should be denoted on the plat to the effect of the horizontal relationship between the boundary of the survey and the structure without expressing legal opinion.

    Scott D. Warner, R.L.S.
    Senior Director / Editor
    Land Surveyors United
    http://www.landsurveyorsunited.com

  • I somewhat disagree with Mr. Warner. I like using the term “apparent encroachment”. If the surveyor has done the proper research, including discussions with all parties involved in the encroachment issue and he can note and depict the boundary line, then he should be able to ascertain if the fence, garage, shed, etc., encroaches or not. While I do agree, that the term ‘encroachment’ maybe considered a legal term, isn’t the making a map and denoting ‘PROPERTY LINE’ also considered a legal term? I mean people build major improvements based on our maps and plans, so why do we as professionals shy away from giving our opinions, based on the facts as we discover them to be? Who else is in the best position to make this determination about an apparent encroachment? Isn’t that why people pay us? I say this because in the Connecticut Standards for Surveys and Maps, Sec 20-300b-2 (1) for Property/Boundary surveys which depicts or notes the position of boundaries with respect to (H) “all apparent boundary encroachments”.

    I will say this, if your insurance company, or your state regulations, does not allow you to make such statement then so be it, obviously follow their rules and regulations. But I feel, as professionals, we need to assist people with their problems. I heard someone say once ‘if not the surveyor, then who?’

  • Surveyors seek to identify what they believe to be the most appropriate reproduction of a titled boundary line when conducting survey retracements. Despite the appearance of geometric precision, there is a significant amount of judgement that may and often time does go into this determination.

    So here, I wonder if there are different survey cannons from state to state regarding the appropriateness of having “discussions with all parties involved … .”

    While discussions may be a complementing, supporting, or mitigating factor in determining a proper “title line”, there is a point of deviation between “title” and “boundary” line at which the surveyor needs to refer the matter to an attorney.

    As to terminology “apparent encroachment” is something that I think would be best avoided. Perhaps “possible”, “potential”, or “putative” encroachment would be a better language hedge.

    Regardless, it is probably the best for the surveyor to have a verbal discussion about these matters, if necessary, rather than placing these terms on the survey itself.

    The reason for this – and in my mind the absolute beauty of a survey map – is that it depicts all this already. As a result, I fail to see any upside for the surveyor who does this, but do recognize downside potential.

    From this we can easily deduce the Gold Standard – “Superior lines with superior notation”.

  • “Regardless if you find yourself more in agreement with Scott or Joseph’s viewpoint, spilling plenty of ink on your survey to indicate how you formulated your result is a good policy. ”

    Well said.

  • Dennis Purcell

    The one question missing is why was the fence built. I have been in areas where the “old’ fence lines have been over grown with trees and brush. The land owner has then built a new fennce along the edge of the brush rather than spend the time and energy clearing back to the remnants of the “old’ fence. I would suggest that the surveyor spend a little time looking in the brush for any remnants of the old fence before making any remarks to his client or the adjoiners.

    Your best solution of course is to show all the evidence you have found.

  • Many thanks to all, as this is an interesting conversation; one which needs to be had; one that without further discussion may go without notice and without a common understanding among surveyors, attorneys, title insurers, lenders, and perhaps most importantly he who wishes to perfect title in real property.

    Whereas land surveyors have been assigned the quasi-judicial power in identifying “apparent”, or otherwise observable and potential trespasses upon the property, domain, or rights of another, I must respectfully disagree with Mr. Codespoti that “If the surveyor has done the proper research, including discussions with all parties involved in the encroachment issue and he can note and depict the boundary line, then he should be able to ascertain if the fence, garage, shed, etc., encroaches or not”.

    I am of the opinion that the land surveyor should be able to ascertain that the fence, garage, shed, etc., is an apparent or otherwise potential encroachment or anything else that is less than an absolute encroachment. Thus I argue, then, why place the term “encroachment” on the face of the survey map at all? Is it not enough to identify the spatial relationship of physical features on the ground without full and complete qualification of their relationship to title?

    For those of us who are land surveyors, we, regardless of any minimum standard of practice, have not been given the absolute judicial power in determination of anything. The lines that we identify are not lines of posession; they are not lines of ownership; and most certainly, they are not lines of title.

    The boundaries that we place on the ground are professional opinions based on a preponderance of evidence; those of express (written) nature combined with physical evidence on the ground of occupation and monumentation. In the absence of monumentation, occupation may be the best available evidence of a boundary description, insomuch as it may tend to agree with written evidence of title, however, unwritten rights can not be determined in an absolute fashion by the surveyor.

    Any question of “why” a fence is where it is and for what reason are not a matter of survey, except that a surveyor should at least investigate and gather evidence of these features because they may lay down a certain framework for drawing a conclusion in a matters involving color of title; it may be noteworthy in expert testimony.

    When a land surveyor finds himself in court as an expert witness, and provides testimony declaring something as an encroachment, he is, indeed, crossing the “boundary” between the surveying and the legal profession. Please don’t anger the Judge or entertain an attorney [to the detriment of the other attorney] with absolute terms.

    Don’t use the word “encroachment” on your survey map and you won’t have to lose sleep between depositions.

    Scott D. Warner, R.L.S.
    Senior Director / Editor
    Land Surveyors United