While it is not unusual to have improvements, plantings, or the like encroaching from one parcel of property onto a neighboring parcel, the vast majority of those encroachments are small, sometimes temporary, and are frequently overlooked or simply disregarded in the spirit of neighborliness. On many occasions neighbors are generally unaware of the exact location of the boundary, and for the most part, that is all well and good.
Issues do arise, and then the first goal is to try to understand the facts. Many times the facts are not in dispute, and it is a simple matter of one party or another, either intentionally or negligently encroaching onto the neighbor’s parcel. If the encroachment can be removed at little cost, that is usually the best course, as it permanently resolves the issue. If the encroachment is not movable, or it is very expensive to remove the encroachment, there are basically two different approaches.
The first approach is to rework the boundary line so that the encroaching party “acquires” some of the burdened property’s land, rendering the “encroachment” no longer encroaching. The civilized way to do this is by agreement, with the encroaching party, in most cases, bearing the costs of the surveying, any legal fees associated with a boundary line rearrangement, etc.
Note, in this case, unless there is an actual boundary line rearrangement with a deed recorded in the clerk’s office and signed off on by the Town, the tax map parcel will not show any change in bulk acreage between the two lots. Thus there would be no change in the real estate taxes, which is something to think about. A larger lot line change may need municipal approval and the two parcels would each change in acreage, perhaps affecting the tax burden.
Occasionally, there is a true disagreement on the location of the boundary line. This can occur as a result of old maps and descriptions being used, and a genuine professional disagreement between surveyors as to the true location of the properties that were deeded to the adjoining neighbors. Also, on occasion when subdivision maps are prepared, either intentionally or negligently, they misstate the dimensions of the lots, creating situations where houses get constructed on lots that are actually smaller than the subdivision map would lead one to believe. Though rare, these serial overlap situations can be very challenging to unwind, usually involving significant legal expense, as each affected lot needs to be re-measured and a new map filed.
In the event that you and your neighbor are not able to peaceably resolve, with appropriate counsel, the boundary line issue, litigation can be maintained by one party or the other. A frequent topic in a boundary line dispute discussion is whether the encroaching party has acquired title to the land underneath the encroachment by what is known as “adverse possession”. The sorts of acts which must be proven to established title by adverse possession vary widely, but is generally stated that the adverse possessor must openly, continuously, exclusively, adversely and notoriously possess his or her neighbor’s property for more than ten years in order to acquire title. Recently, the statute governing adverse possession in New York was amended to provide that “de minimus” encroachments such as fences, sheds, gardens, plantings and the like, would, under most circumstances, be considered “permissive” and thus not “adverse”. Thus, your neighbor’s garden or lilac hedge on your backyard is not, under the new statute, giving your neighbor ownership of any part of your backyard. Similarly, lawn mowing, installing a typical fence or a portable shed or other such structure will not, under the new statute, give your neighbor rights to your property.
There is still somewhat of an argument about acts of possession which the new statute deems “permissive” but which took place over a ten year period prior to the enactment of the recent statute in 2008.
Adverse possession cases can be expensive to litigate, involving professional surveyor testimony and many aspects of factual proof which need to be researched and presented. Before embarking on an adverse possession litigation, either as a plaintiff or defendant, it is essential to consider the costs and legal fees and expert fees, as well as personal stress and effort, as compared with what is to be gained or lost in the possible outcomes. It is possible that one or the other party may have to resort to a title insurance policy for indemnification and/or payment of counsel fees to either prosecute or defend a title claim.
Finally, “self-help” is virtually never the preferred course of action. One who exercises self-help to remove an encroachment will almost certainly find themselves criminally prosecuted. In addition, taking such steps frequently poisons the relationship to such extent that there are dramatic and almost exponential legal fees and expert fees that will be incurred if the neighbors don’t get off on the right foot.
As you can see from the above, it is best to consult an experienced practitioner familiar with these sorts of disputes. If your neighbor does the same thing, in almost every instance the matter can be worked out to a point where the result of that arrangement is far better than the result of years of contested litigation.