In a purchase transaction I handled last year, the new survey showed that the house being purchased was more than two feet onto the neighbor’s property. As a condition of proceeding with the closing, I required the seller to obtain a written easement from the neighbor permitting the encroachment to remain, running with the land. Practitioners can provide opposing counsel with an easement template, either from their forms file or from the title company. The easement in final form should be reviewed by buyer’s counsel and the title company, and then executed and recorded in the county clerk’s office. The recorded easement will then be incorporated into the owners title insurance policy.
Sometimes the boundaries depicted on the survey of a recent home purchaser conflict with the location of property lines shown on a neighbor’s survey. That may lead to a dispute, which may then develop into a title insurance claim. In resolving an overlap dispute, the parties may agree to a compromise boundary line by written agreement or certificate, which would then be recorded in the county clerk’s office. In some cases, the parties may agree on a third party neutral surveyor to confirm the questioned boundary line, and to plot the compromise line on a survey which is then attached to the agreement before recording. Any such boundary line agreement must take into consideration whether the compromise line creates any encroachments. In that event, the boundary line agreement must provide for the grant of an easement for the encroachment. Counsel should also be concerned whether a boundary line adjustment creates a zoning violation or requires any municipal approval. Typically the surveyor will work with counsel (conferring with the municipality) to determine that.
If the parties cannot agree, then one may file an action in the Superior Court requesting the appointment of three commissioners (one of whom must be a licensed surveyor), to determine location of the disputed boundary. The boundary line commissioners are entitled to enter upon the properties, depose witnesses, and conduct needed investigation. The commission shall then file a report with the court within the time prescribed by the court. Any party who disagrees with the report may apply to the court to have the dispute tried by the court, with or without a jury. The court determines the compensation of the commissioners and decides whether one or both of the parties shall pay.
In order to reduce expense, the parties may agree to have the judge appoint a surveyor as a neutral expert to determine the boundary location and file a report, in lieu of a full boundary line commission.
The findings of the report must be memorialized in some way, such as by way of a court order which can then be recorded in the county clerk’s office.
