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FSBO Midwest

Most of us don’t know where our exact property boundaries are located, and many of us don’t care.

Most of us don’t know where our exact property boundaries are located, and many of us don’t care. Unless we have the property surveyed, the only way we may be able to go outside and physically touch the limit of what is ours is when permanent markers are described in a deed, such as a tree or stone monument. And even when a permanent marker can be located, the boundary may not run in a straight line.

If you or your neighbor want to fence the property or build a structure close to the line, you need to know where the boundary line actually runs. If you can’t figure it out from the property descriptions in your deed or subdivision map, or you and the neighbor think it is in different places, you have several choices.

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.

Setting Boundaries by Owner’s Agreements

When a boundary line cannot be located because deeds or maps are ambiguous, the two adjoining neighbors may simply agree where the boundary line is. Once this agreement is made and certain conditions (discussed below) are met, the line is the permanent legal boundary. It is binding not only on those neighbors but also on later buyers. The agreement does not change the ownership of land. Instead, it interprets ambiguous property descriptions in the deeds.

This approach has much to recommend it if both neighbors genuinely agree. It is easy, inexpensive and fixes a certain boundary line. Done properly, it will end confusion for the neighbors and for later buyers.

The purpose of this rule, according to one judge, is “to prevent strife and disputes concerning boundaries.”(2) This may ring with truth for two neighbors who come to a solution, write it down and record it in the public land records. However, if the agreement isn’t written down and recorded, it can wreak havoc when property changes hands or one of the neighbors dies.

Requirements For an Agreed Boundary

For neighbors to agree on a permanently binding boundary between their properties, four conditions must be met:

There must be genuine uncertainty as to where the true boundary line runs on the ground.
Both landowners must agree on the new line.
The owners must then act as if the new boundary line really is the boundary (lawyers often call this “acting in reliance on the agreement”).
The agreed boundary must be identifiable on the ground.
Only after all these requirements are satisfied does the boundary the neighbors settled on become the legal line. Some courts can be extremely strict when looking to see if a boundary agreement meets these criteria. If one of the requirements is absent and the line is ever challenged in court, the agreement will be ruled to be void and the boundary line as uncertain as it ever was. We discuss each of these requirements below.

Original Uncertainty

For an agreed boundary line to become the fixed legal boundary, the two owners must not only agree but agree because they really can’t locate the line. This doesn’t mean that the neighbors must call in a surveyor to try to find the boundary. It is enough if they cannot reasonably locate the line from their deed descriptions, from a previous survey recorded in the land records or from markers on the ground.

Usually, what happens is that someone wants to put up a fence, or maybe both neighbors want to put one up together. When they attempt to find the boundary, they discover that the property descriptions in their deeds conflict or perhaps make no sense at all. Not wanting hard feelings or lawsuits, they simply agree on a line convenient to both of them. Many are the neighbors who have done this and proceeded to live happily side by side for many years.

But if someone challenges the boundary line in court — perhaps the next buyer of one of the properties, who are unhappy with or confused by the agreed boundary — and the real boundary line could have easily been found, the general rule is that the owners’ agreement doesn’t count. A judge may make an exception to this requirement only if the owners had relied for many years on the agreement and great harm would result by not recognizing the agreed line.

Example: A recent case from California illustrates the kind of legal microscope a court will often use when determining whether or not the requirement of uncertainty has been met. The new owner of a piece of property assumed that an 80- year-old fence was the boundary and proceeded to make major changes on the land. The next-door neighbor claimed that he was trespassing and sued him.

Because the fence was so old, former owners from years before were brought in to testify as to whether or not it had been an agreed boundary. They gave conflicting stories; some had assumed the fence was the boundary, others had not. As it turned out, arguments about whether or not the fence was the agreed boundary made no difference whatsoever, because there were some old boundary markers on the property that could have been found by any of the owners if anyone had searched. In short, there was never real uncertainty. The new owner’s mistake and his trespass on his neighbor’s land cost him dearly: He was ordered to pay the neighbor $26,000.

Agreement by the Owners

A neighbors’ agreement about an uncertain boundary doesn’t have to be in writing to be legal. But obviously, a written agreement avoids confusion and disputes later.

Sometimes, if a line has been treated as the boundary by both owners for many years, an initial agreement between them will be inferred by a court that is deciding on the validity of an alleged boundary agreement. A court might make this inference when all of the other conditions of an agreed boundary have been met.

If you and your neighbor can’t seem to agree on where you think the boundary line should run, you may be able to get some help from a trained mediator. A mediator helps the people iron out difficulties and reach an agreement that is satisfactory to everybody involved. Mediation of disputes between neighbors is often free or very inexpensive.

Acting in Reliance On a Boundary

Once adjoining landowners agree that a particular line marks an uncertain boundary, for that line to become the legal boundary they must then act as if it is the boundary. They can do this by simply going about their business, treating the line as the partition between their properties for whatever time period is required by state law. The time required ranges from five years to 20 years. If you need to know what your state’s required time period is, you must find a state court opinion dealing with an agreed boundary in your state. (See Chapter 13, Legal Research.)

If, however, great harm would be caused were the agreed boundary not considered the legal one, the agreed boundary can become the legal one before the required time period has elapsed.(5) Courts will rule this way when one or both of the neighbors does a substantial act relying on the validity of the agreed line, such as building a house close to it.

Example: Two people purchase lots in a subdivision. The boundary line between their properties is unclear, both from the subdivision map and their deed descriptions. One wants to fence his lot, and they agree on a boundary. These two fellows are friendly neighbors; one even gives the other the lumber for the fence. A lovely split rail fence is built, along with a comfortable house. Both properties are then sold. The new owner of the fenced house comes home from shopping one day and discovers a crew tearing down his fence. The other owner has had a new survey done which shows the boundary line running squarely through the shopper’s bedroom.

This actually happened in California, and the owner of the fence sued the other owner. When the lawsuit came before the court, the ruling was: The legal boundary line was the one agreed upon by the previous owners, even though the state had a five-year period for an agreed boundary to become fixed, and five years had not passed since the agreement.

The court based its ruling on the fact that the housebuilder had relied on the agreed boundary to build a house. Making him tear the house down, the court decided, would be too severe and unfair. The man who tore down the fence was ordered to pay the neighbor not only the replacement value but also $500 in extra damages for the malicious behavior he showed in ripping down his neighbor’s fence.

Identifying the Agreed Boundary

When two owners settle confusion by agreeing on a boundary line, the line should be physically obvious in some way. Often, a fence or a natural boundary marks the line. It could be a tree, road, creek, driveway, even the edge of a house. If not, something needs to be constructed, or stakes or some other markers put in the ground so that the owners can point to the line.

The reason to have a visible line is to alert a new buyer as to where the line is, to prevent trouble in the future. Anyone who purchases property is expected to make a visual inspection of the site. If someone else’s driveway is two feet from the house he’s buying, he is expected to notice it. This is the time to inquire about it and to call in a surveyor if necessary — not after buying the property and settling in.

Putting Boundary Agreements in Writing

An informal, unwritten boundary agreement can be a ticking time bomb, ready to go off when the property is sold. To avoid an explosion, if you make an agreement about a land boundary, put it in writing.

If you and your neighbor make such a written agreement, use the exact property descriptions that are in your deeds. Be sure that all owners sign the agreement. Have it notarized and make copies to keep with your deeds.

Once you have a signed, notarized agreement, take it to the local property records office (often in the county courthouse) and ask the clerk to record it. When you record a document, it becomes part of a public record, so other people can find it. You will have to pay a small fee, probably just a few dollars per page of the document.

The clerk may be a little surprised at your request because not a lot of boundary agreements are recorded. In a very few states — Kentucky is one — there is a procedure in the state statutes for setting an agreed boundary, putting the agreement in writing and recording it at the courthouse.

If there is no standard procedure in your state, ask if you can put it on file with the land descriptions of both properties. In some states, the clerk may be able to make a note in the margin of your deed that refers to the agreement. At least get it filed under both names on the agreement, so that it will be part of the public record.

Calling In a Surveyor

If you are willing to spend several hundred dollars or more to find out exactly where your boundary is, call a licensed surveyor. The surveyor will survey the entire property and give you a copy of the survey, showing the boundary lines of your property. He will also place official markers on the boundary lines, which will remain to mark the boundaries.

Be aware that you and the neighbor could be in for further conflict when the boundary is found. The line may run several feet away from what you expected — maybe even through one of the houses. When this happens, one neighbor may have to pay the other for property she was occupying by mistake. This can get complicated, especially if the new survey conflicts with one in the past or the descriptions in the deeds, and you may need a lawyer.

How Do Surveyors Work?

In a new subdivision that still has markers from a city survey, the cost of a survey can run around $500. When streets have been renovated and the surveyor has to bring lines in from far away, the cost goes up accordingly. Be prepared to spend several hundred dollars to over a thousand dollars if you live in an area where no survey has been done for a long time, or the maps are unreliable and conflicting. Sometimes, the surveyor really can’t know just what will be involved until the job begins. If you and your neighbor go in together on the cost, having both properties done at the same time by the same surveyor, you should be able to save some money.

When the surveyor comes out, do everybody a favor and stay out of the way. Find out what will be needed from you, such as a copy of your deed or any other records, and have everything ready. Then let the professionals do their job. You and the neighbor standing there explaining who built what and what belongs to whom is nothing but a waste of time and money.

If you are in the midst of a heated dispute with your neighbor and hire a surveyor on your own, the neighbor will probably have to allow the surveyor onto his property if necessary. It is against state law in many states to interfere with a surveyor or to refuse a right of entry. Always notify the neighbor that the surveyor is coming and what time, if practicable. This is required in California. If the neighbor indicates that there will be trouble, have a lawyer write a letter outlining the law and asking for entry to the property for the survey. If necessary, the lawyer can get a court order to allow the survey.

Once you have a survey done, ask if the survey company will record it in the local public land records. If not, take a copy to the courthouse and ask that it be recorded; there will be a small fee.

Letting a Court Decide on the Boundary

When a boundary line is not clear and the neighbors can’t agree, a few states have statutory procedures allowing one neighbor to ask a state court (regular court, not small claims court) to settle the line. This will probably involve a new court-ordered survey and will be expensive. In other states, you can hire a lawyer and file a suit to “quiet title” (decide who owns what). Again, the judge may order a survey done, and the whole thing will take a lot of time and money.

Permanent boundary monuments or survey markers are protected by state law. A marker may be a naturally occurring landmark, such as a tree. Or, a surveyor may place iron stakes or small brass caps in the ground to officially mark the property line. In Massachusetts, anyone removing such a marker can be jailed for six months or fined $50 or both. The penalty is stiffer in the District of Columbia, where the fine is up to $1,000 and the prison term can be a full year. The law is similar and very serious in other states. Arkansas imposes a fine of at least $500, jail for at least 30 days, or both.

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