Content of the material
- Setting the Boundary With a Quitclaim Deed
- Boundary Line Agreements
- How Boundary Line Agreements Protect From Encroachments
- When There’s Trouble
- Can My Neighbor and I Simply Agree Where the Boundary Should Be?
- Why is it important to know the location of your property lines?
- Sending a Demand Letter to Your Neighbor
Setting the Boundary With a Quitclaim Deed
To establish a clear boundary, adjoining property owners can decide where they want it to be and then make it so by signing deeds that describe the boundary agreed on. If you have a mortgage on the property, consult a local attorney for help in drawing up the deeds. Whoever holds the mortgage may need to be notified and permission obtained before you transfer even a tiny piece of the land. Some mortgage companies will not be concerned or want to be involved. But others put a clause in the mortgage that allows the company to demand full and immediate payment of the entire loan if the borrower transfers any interest whatsoever in the property.
Even if you have no mortgage, you might want to get an attorney to draw up the property descriptions in the deed, or just to look over your work if you draw up your own using The Deeds Book by Mary Randolph (Nolo Press). It may be worth spending the money for this small service to avoid any possibility of later confusion.
What is a Quitclaim Deed?
Each neighbor should sign a quitclaim deed, transferring to the other neighbor any right they have to the property that falls on the other side of the line they have agreed on. Once the deeds are recorded (put on file) in the county land records office (usually in the courthouse), there will never again be a question about the boundary. All future buyers will be able to find the deed and know what belongs to whom, when they buy the property.
Example: Janet and Rod, next-door neighbors, aren’t sure where the boundary line is between their properties. Rod wants to enclose his yard with a fence, but doesn’t want to pay for an expensive survey of the property to find the exact boundary. He and Janet agree that the fence will mark the boundary. Then they each draw up a quitclaim deed. Rod signs a deed giving any rights to the property on the other side of the fence to Janet, and she signs a comparable deed.
In the deed Rod signs, he describes and gives up any interest in Janet’s property. Janet makes out a deed quitclaiming any interest in Rod’s property. Each property is identified exactly as it is in the deed already on record, with the addition of the description of the fence. Then they both put the deeds on file (record them) at the county land records office.
Is An Attorney Needed for a Quitclaim Deed?
If you have no mortgage on your property, setting a new boundary this way can be a very easy procedure. You can purchase quitclaim forms in some large office supply stores and do it yourself. However, because legal intricacies in property descriptions vary from state to state, it is always wisest to let a local real estate lawyer check the deed.
Boundary Line Agreements
Boundary line agreements are written legal contracts between neighbors made to settle disputes over property boundaries. They vary slightly by state, but the point is to have a way where property owners can agree on property line usage outside of going to court.
Boundary line agreements are not the same as boundary line adjustments. Boundary line adjustments are made when property owners want to exchange land, redefining the property line between them, typically done without involving money. Boundary line agreements are specifically used when there is a dispute over land and its use.
How Boundary Line Agreements Protect From Encroachments
One of the most common reasons for a boundary line agreement is when a neighbor has encroached on your property by building a structure on it. Often, this issue is only made known because you did a land survey for another project and discovered your neighbor built on your land.
In order to retain the title to that piece of property, you can create a boundary line agreement with your neighbor. In this agreement, your neighbor acknowledges their mistake in encroaching on your property and you allow the structure to remain standing. This allows you to retain legal ownership, your neighbor to use what they built and for you both to stay out of court. You retain the right to the property and if the structure is torn down or destroyed, the neighbor must rebuild it on their property.
If you wish to cede the property to your neighbor, you can file a boundary line adjustment, though you’ll need to pay review fees, and the process takes longer than an agreement. Regardless of your decision, you need to do something if you ever intend to sell or transfer the property. A neighbor’s structure on your property may make things more complicated the longer it goes unaddressed.
Visit the county recorder’s office or the assessor’s office. Ask what maps are available for public viewing that include your neighborhood and street. Request a copy of any maps that show clear dimensions of your property lines. Use the maps for reference when measuring your property’s total boundary line on each side.
When There’s Trouble
Most neighbors get along for years with no serious questions concerning their boundary lines. But one day you may look out your window to discover a frightening scene. There stands the next-door neighbor on what you think is your property, putting up a fence or taking yours down. Or perhaps he is sitting atop a backhoe, digging up your property for his new garage. What you have long assumed was the boundary line has been crossed.
If a neighbor starts to build on what you think is your property, do something immediately. If the neighbor’s encroachment is minor, for instance a small fence in the wrong place, you may think you shouldn’t worry. You are wrong:
- When you go to sell your house, the title company may refuse to issue insurance because the neighbor is on your land.
- It is important to act promptly because if you don’t, you could lose part of your property. When one person uses another’s land, he can gain a legal right to do so and, in some circumstances gain title to the property.
- Also, if you don’t get the construction stopped, even if you later sue for trespass and win, all you may be able to collect is a money award, not an order to remove the neighbor’s addition. Judges do not like to order property destroyed. Only if the neighbor intentionally trespassed can you even hope for an order of removal of a substantial structure.
Any time a neighbor starts to build on what you think is your property, step over for a chat and find out what is going on. Most likely, a mistake has been made. There may be a conflicting description in the neighbor’s deed or just a wrong assumption about the line. You may even discover that neither one of you is really sure where the boundary is. You may want to make your own agreement about a boundary or hire a surveyor to find the existing one. (See Settling Uncertain Boundary Lines, above.)
If your neighbor is hostile and insists on proceeding, inform them that you will sue them if necessary to stop what they are doing. If you are already certain about the boundary and have proof, such as a survey, you can threaten to call the police and have them arrested for trespassing.
Perhaps a firm and threatening letter on legal stationery will at least stop the building. If a letter and a threatened lawsuit don’t make the neighbor stop, waste no time in having a lawyer get a judge’s order to temporarily stop the neighbor until a civil lawsuit for trespass (being on your property without authorization) can come before the judge.
If the neighbor is actually claiming part of your land, for example under a conflicting survey or because he has been using it (see Chapter 10), you’ll need an attorney to file a lawsuit to have the neighbor or his property removed. Or the attorney can file a suit to “quiet title”— to let the court decide who owns what.
Can My Neighbor and I Simply Agree Where the Boundary Should Be?
If you and your neighbor have agreed where you both want the property boundaries to be, then you can make a "lot line agreement," also called a "lot line adjustment agreement." These agreements are official and binding by making and signing deeds that describe in detail the agreed upon property line.
Before you proceed, check your local zoning and subdivision ordinances to make sure your new lot will be in compliance. Some communities require lots of a certain size before they allow animals or extra buildings. Even a small loss of property could create an unanticipated problem. You may need to appear before your town’s planning commission or governing board to get your lot line adjustment approved.
If you or your neighbor are still both paying off mortgages on your properties, you will probably need to consult with an attorney before making a lot line agreement. Your mortgage is signed with a description of the property. If you execute a deed without the bank’s approval, you are in breach of your mortgage. You will need a loan modification. You will be responsible for any costs associated with the modification.
After signing the deed, you will need to file it with the county land records office. This office, which is sometimes known by names such as the County Recorder’s Office, or the Land Registry Office, will file the deed and make it available for public viewing upon request. This gives notice to any future purchaser of the land of the new, agreed-upon property boundaries.
Why is it important to know the location of your property lines?
Property lines are in place to keep one property owner from encroaching on another owner’s land or compromising their privacy by building too close to their house. A typical encroachment might be tree limbs that grow past your property and overhang into a neighbor’s yard or a driveway poured to extend onto a neighbor’s property. When you know exactly where your property lines fall, you’ll avoid accidentally encroaching on your neighbor’s land.
If you plan to build a permanent structure, you’ll want to be as accurate as possible, and ordering your own land survey is the best option. In most states, you are required to call a diggers hotline 811 to request buried utility information before you build a fence, plant a tree, or extend your driveway. This call ensures you know the location of any buried wires or irrigation systems to avoid causing damage. Within a few days’ notice, someone from your local utility company should be able to mark county wires or pipes with spray paint or flags.
Since property line information can be valuable to someone you may sell your house to, you will want to keep all records. Keep a copy of a new survey you’ve completed, a plat map, or any information from the city or county offices in digital or hard copy format. If you do a new survey, you may also need to register it with your county assessor or recorder. During the sale of a property, the title company will search for encroachment of one property into another. They may refuse title insurance to the seller if they find a property line dispute.
When you know how to find your property lines, you’ll gain peace of mind for any project that could come close to the edge of the property. Showing respect for your neighbor and their property rights can help you avoid a lawsuit.
Sending a Demand Letter to Your Neighbor
Assuming the law is on your side, and private discussions between you and your neighbor have not been productive, a letter from your attorney to the neighbor explaining the situation and either requesting action or containing a reasonable offer to settle can possibly resolve matters.
An offer to settle may include a compromise to divide the property at issue, modify additional boundary lines not at issue, or offer or request a monetary payment to settle the issue. Even if the law is on your side, it may ultimately be cheaper (and significantly less hassle) to “purchase” the property from your neighbor rather than proceed to trial.
However, your actions may also put your neighbor on the defensive. Your neighbor is likely to forward your letter to his or her attorney. Do not be offended, or interpret this to mean the neighbor is not willing to negotiate or compromise. It may simply mean that the neighbor wants to understand the options fully. After all, you sought out an attorney first.
Sharing any information you have, including surveys, title work, and appraisals, can show you are being open and honest and are willing to work towards a resolution. It also gives your neighbor a full understanding of the situation without requiring him or her to separately incur these costs. (A neighbor who incurs costs will likely want to recoup these in the end.) However, don’t be surprised if your neighbor does want to obtain (and even pay for) independent information.
Hire a surveyor if you do not have a survey. A surveyor is a professional who can measure and map the property lines for you. The surveyor will mark the lines at the corners with stakes. Be present when the surveyor comes to measure your property, so he can point out where the property lines are. The cost of a survey varies depending on your location, property value and lot size.