Basic Concepts of Property Lines
Before diving into the ways to legally change property lines, we should talk about what property lines are and why making accurate property line designations and calculations is essential. Property lines are the marks or boundaries, either on the ground or in the air, which "fix" the corners of the property so as to define the legal area of a property; e.g.; boundary lines, property corners, sufficient elevation points for tax assessments, determining acreage, etc. Understanding how property lines are established is particularly important for landowners wishing to build a fence or otherwise improve or develop their land. A fence or wall serves to define property boundaries, but building or constructing on or near a property line may be unlawful to the extent it encroaches over the line . This can cause problems for the property owner if not mitigated with their neighbours. Property lines provide specific and measurable boundaries for various reasons and purposes: Whether on the ground surface or in the air, property lines do not necessarily accurately reflect the legal limits of a property for a variety of reasons. A property line designated and constructed in the 1930s may no longer represent the property’s actual boundaries today. Encroachments (such as walls or overhanging tree branches), eroded banks, and updated measurements all affect the property lines. Accordingly, if new property lines are desired, and if land (and the items attached to the land) is being used collectively or without regard to the boundaries, the consent of the neighbouring landowners must be obtained to legally change the property lines.
Property Line Alteration Reasons
Common reasons for changing boundaries may include resolving fence and boundary disputes, obtaining additional easterly or westerly property, increasing waterfront property, increasing non-waterfront property, clearing title to the property, and perhaps, most importantly, clearing title to a trust property.
As indicated above, more often than not a property boundary line may need to be changed based on the desire of adjacent property owners to settle a fence line dispute. Before litigating (and usually blowing a lot of taxes) on a boundary line dispute, consult with a Real Estate lawyer to determine whether the disputed boundary line should be changed by corrective deed.
It is often more beneficial to alter the boundary line to meet the economic needs of an existing property owner, i.e., additional property means additional agricultural production or more beachfront for rental income. This situation may arise when the land has been sparse in the area, the land has increased in value, the land being sought for acquisition is adjacent to property already owned by the acquiring property owner, and in some situations, the increasing number of waterfront properties also sparks interest in the surrounding non-waterfront property that may, in fact, be waterfront property.
Engagement with a Land Surveyor
A qualified surveyor will be able to investigate your property lines and help determine where the boundaries lie. They will also be able to utilize their expertise to determine the best and most appropriate steps to take to move the property line. A surveyor is often the first person you’ll want to consult with as a part of a property line change discussion. Ideally, you’ll have already consulted with a qualified surveyor before entering into any agreements or contracts regarding a new property line – but even if you haven’t, it’s not too late. A survey can often be performed in a matter of days so long as no prior legal action has taken place that would prevent it. When you are looking to hire a surveyor, there are three main considerations: The first item is the most important to consider. In many instances, a surveyor will perform a "field survey" of the property, which is the physical research that must be conducted to locate the features and bounds of a property. Then, a "mathematical survey" is performed, which is the portion where the surveyor prepares a legal description and map of the property and records them in accordance with local law. The type of survey you will need will depend on the reason for the request. You may also need to receive surveys from two different surveyors: one hired by you and one hired by your neighbor. This may occur when there is an existing dispute regarding the property line and both parties wish to see proof of the location of the boundary line. In this case, the party requesting the survey may be able to recover the costs for the additional survey. Once the field survey and mathematical survey are complete, the surveyor will prepare a "land description," or legal description of the properties. This may be a metes-and-bounds description (a description based on measurements of the land), or it may use baselines and bearings, which are anchored based on survey markers and a coordinate system laid out by the government. Your surveyor can advise you on whatever the correct land description is based on the land itself. Once the survey is filed, it is available for anyone to view in the courthouse, land office or county clerk’s office.
Legal Requirements for Adjustment and Documentation
Changing the property line through a private treaty (i.e., without government involvement) is the least expensive method and is generally the most convenient for adjacent property owners who agree to change the line. While it is a private agreement, it is still a real estate transaction between the two owners of real estate who sign a deed moving the line based on their agreement. The resurvey process to determine the new line location is often time consuming due to the involvement of a surveyor. After the new line is moved, the deed must be recorded at the county office handling the real estate records.
In light of the fact that moving property lines creates legal interests in real estate; it is highly recommended that a title company be involved in the preparation and vetting of all documents and the processing of the transaction.
Some local governments may require a permit and a fee to be paid because, when a property line is granted, any easements or rights-of-way that are recorded must be moved to the new line. Because of the potential for property line changes to impact other properties, depending on drainage, flood plain issues, or utility concerns, a permit may also be needed for property not adjacent to the one seeking the line change.
Some counties will not require permits and claims easements to the newly established line for drainage, flooding, and the like. If no permit is required, then a grant deed to the new property lines may be recorded. If a permit is required, the documentation may include a deed from the grantor to the grantee along with the permit. In either case, you will need to contact your local government to see what rules apply.
Lodging the Property Line Alteration
The filing process for a property line adjustment can differ depending on the jurisdiction, but generally the primary concern is whether the adjustment qualifies as a "segregation." In some areas, no filing is required at all if the adjustment isn’t flagged as a segregation. In other jurisdictions, the change must be filed regardless of whether it is a segregation.
Filing usually occurs with the relevant government office in your area. In some places, such as New York City, property owners only need to submit a copy of the recorded deeds reflecting the new property lines, along with a letter requesting that the Department of Finance update its records . In Chicago, trustees must file a "plat of subdivision or map of corridor map."
In most cases, there are filing fees associated with any necessary documentation. California requires both the county tax assessor and county recorder’s offices to send separate acknowledgment forms and pay separate filing fees.
The best way to know your locale’s requirements for the process – and its fees – is to check locally. Your real estate attorney should also be able to help you navigate this step.
Understanding Zoning Regulations and Limitations
Depending on the type of property and locality, there may also be zoning laws and restrictions to consider. Zoning laws regulate the use and development of property, including minimum lot sizes, setbacks, maximum density and height restrictions, and whether or not certain activities are allowed (zoning classifications) on a property.
Zoning ordinances govern how the land can be used in the area, so it is important to check these to ensure that the proposed property line change does not violate any zoning regulations. Homeowners associations may also have a say in how property lines can be shifted in their neighborhoods—for example, requiring all homes have at least a 20-foot front yard setback from the property line. These associations typically record a covenant against the property that can only be amended by a supermajority vote, so make sure one exists and check for any restrictions before beginning any project.
It may also be the case that the property lines are controlled by some restrictive covenants or similar easement-type agreement with a neighboring landowner or homeowners association. It is critical that counsel reviews all applicable covenants, easements and zoning regulations prior to starting a new project involving a property line change to avoid legal disputes with neighbors or homeowners associations down the road.
Conflict Resolution and Neighbor Agreements
Disputes with a neighbor over boundary lines can cause unnecessary stress. These disagreements can often arise from a misunderstanding of recorded documents or surveys. When differences do arise, your best course of action is to try to resolve matters amicably with your neighbor. The more legally complicated matters can become, the more costly they are likely to be. If you suspect there might be a discrepancy in the location of the fence or tree line, have the area surveyed before taking action until the dispute is resolved. You should also attempt to locate any recorded easements, final maps, and surveys. Make sure to handle all conversations, emails, and text messages regarding the dispute with your neighbor professionally, as these communications may be used against you in court. If you and your neighbor cannot reach a mutual agreement, then you may have to take further action to try to resolve the dispute. First, attempt to mediate the conflict. Mediated conflict resolution is the process whereby a neutral third party, called the mediator, works with both parties to develop a legally binding resolution. If mediation is unsuccessful, then arbitration may be an option. Arbitration is a legally binding decision-maker. Unlike a mediator, an arbitrator listens to evidence from both sides before rendering a decision on the dispute. The advantage to arbitration is that you only have to present your case one time, and the matter is resolved. However, if you are not satisfied with the decision, then you have the right to appeal it before a judge. If binding arbitration is not used, then you are going to be litigating the dispute in court. Litigation of the matter is usually the result of failed mediation and arbitration. If it comes to this, you need a lawyer who specializes in municipal and land use matters. If your neighbor becomes aware of the fact that you have encroached on their property prior to the statute of limitations (California Civil Code § 318), then the presumption of adverse possession may not apply. If your neighbor can show that you knew you encroached on their property and continued to encroach after finding out about the trespass, the statute of limitations will not run in your favor. Therefore, the sooner you can straighten out discrepancies in boundary lines, the better.
Certification of the Adjustment and Recording New Property Lines
It is important to specify in the instrument that the parties agree to the new property line. They should clearly designate the line to be followed by the fence, if the fence is to be moved as part of the agreement. The parties may agree that all costs of moving the fence are to be paid by one party. Both parties should sign the instrument by a property description or a survey map. A survey map will require the services of a licensed land surveyor.
Once the new property lines are agreed upon, the private adjustment of the property lines must be recorded with the local county recorder and the recorded deed must be returned to the property owner for safekeeping in the grantor’s chain of title. If there is any delay in the issuance of the adjusted deed , a copy of the filed instrument evidencing the change of property lines should be kept available for examination. The recording process effectively publishes notice of the change of the adjoining property lines.
After a new deed is recorded, the property description in the title and the recording number are considered by courts to afford constructive notice to all parties. This means that all persons are presumed to know the contents of the instrument regardless of whether the person actually read the instrument or not. A person claiming an interest in land has an obligation to review the public land records and be familiar with the rights conferred by recorded instruments.