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New Fence Leads To Lot Line Dispute

Ask the Real Estate Lawyer: Real Estate Law Q&A

REM #LAW 710

By Ilyce R. Glink and Samuel J. Tamkin

Summary: A reader was planning on putting up a new fence when the survey revealed a lot line closer to the neighbor's home. Ilyce and Sam help the two families resolve this dispute.

Q: We bought a home last year, but did not get a survey before our purchase.
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Our property was part of a larger property at one time, and decades ago it was subdivided into two lots.

We actually never had any issue with the boundaries until a few months ago when the neighbors who live on the other lot began walking across our lot and letting their kids roam over our property. We decided to put up a fence but we needed a survey to get a permit for the fence. We found out that our property is actually ten feet closer to our neighbor’s home than we thought.

The neighbor is saying that the survey is incorrect. How does this get resolved or can it ever be resolved? We have a registered deed, a recent survey and an engineering company has gone back many years to see how surrounding surveys were completed as well as previous surveys of our property and they all seem to be in our favor.

A: From a bird’s eye point of view, it seems that you have followed proper procedure in determining the boundaries of your property. Going one step further, you might want the surveyor to place stakes on the corners of your property to clearly outline the boundaries.

Your neighbor’s deed is part of the public record and you can get a copy of it and give it to your surveyor. The surveyor in turn can make sure that the boundary described in the neighbor’s deed matched the boundary described in your deed. If the descriptions match, the neighbor may have an issue with your claim to the boundary but you should win that argument.

The only thing that is puzzling is how you came to believe that your property boundary was off by ten feet. If your property is large and does not have defined borders, that could explain it. But most people know the where their property begins and ends.

If you and your neighbor had an understanding as to the location of the boundary between your properties and this understanding existed with the prior owners of these properties, you might be in trouble.

There is a concept in real estate law that gives land that has over time been openly used by another the rights to that property. This concept is called adverse possession.

It is generally very hard to prove adverse possession between neighbors. It’s probably unlikely that the neighbor can prove adverse possession unless the neighbor had fenced off your ten feet, claimed it as his, maybe even paid the real estate taxes on that ten feet and had done so for a long time (up to 21 years in some states).

Here’s one other suggestion: You might want to pay a visit to the county tax records office to determine what its view is on this issue. This isn’t to say you should have a conversation with someone at the office, but take a look at the map of the tax parcels in your area.

If the tax parcel matches your property’s legal description, you can claim that you have been paying taxes on the ten feet in question.

All of these issues taken together will give you a better picture of where the property lines are and whether the neighbor has any claim to the ten feet.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website




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