Boundary Line Agreement/Affidavit

[Eric Salant, Esq.]

Happy New Year All.

I have a friend who owns a house on Long Island.  Their neighbor is selling their house and the Buyer's title company is asking my friend to sign an Affidavit saying they have no claim for the property between the neighbor's fence and my friend's property, as depicted on the new survey done by the Buyer.  Survey shows neighbor's fence being 1.3 feet short of the property line.  The friend asked my for my thoughts. 

I have a couple of concerns:

What if the new survey is incorrect.  Could my friend be giving up rights to property that is actually theirs? 

What if the friend actually has a claim to a portion of the property through adverse possession?  Why would they give up that claim? 

I did not see this when I practiced in NY (did not do much outside of NYC),  so I wanted to know if this is now standard for title companies to request this.   Can't see any benefit to signing.   Would just assume to have title company omit any claims by adjacent property owners. 

Any help or guidance is appreciated. 

Regards,
Eric Salant

Eric Salant, Esq.
esa...@Capital1031.com
(800) 976-1031
(888) 976-1031 fax
 
Capital 1031 Exchange Company, LLC
Capital Self Directed IRA, LLC
998 Holmdel Road
Holmdel, New Jersey 07733

Capital 1031 Exchange Company, LLC
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Philadelphia, PA 19123

[Jacques Debrot]

Why is your friend even thinking about signing such a document? Your friend is not a party to the deal and has no interest in it.

 

Jack Debrot

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[Cliff Lewisohn]

First thing your friend should do is compare the new survey being presented by the buyer of the other property against his own survey and see if they match. If they match my advice would be to have him sign the affidavit and attach a copy of the new survey confirming that those are the proper boundary lines. The reality of a successful adverse possession claim including the legal fees to be extended to possibly, and only possibly acquire a 1.3 foot strip might not be worth The money he would have to spend in legal fees and court costs. 

Sent from my iPhone

--

[Bonnie]

We see this quite a bit in upstate New York where we have a home.

 

I would not advise your client to sign the agreement without having investigated whatever rights they may have to the property by adverse possession or pursuant to another survey if the buyer’s survey is incorrect.

 

However, this would cause expense to your client; your client should not sign and let the neighbor spend the money to solve the issue.

 

 

 

Very truly yours,
Bonnie E. Krasner
The Law Offices Of
Bennett D. Krasner
1233 Beech Street, No. 49
Atlantic Beach, New York 11509
Tel: (516) 889-9353
Fax: (516) 432-7016
Email: bonnie....@bdklaw.net

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[Michael Brofman]

Eric:  It is very usual for title companies to request boundary line agreements where the fence line is more than a foot off the survey line, in order to insure title against an adverse possession claim.  One of the keys is to see your friend’s deed and survey when he took title and see if it comports to what the adjoining property holder shows.  If it is the same, then there should be no problem signing a properly drawn agreement.

 

Michael D Brofman, Esq.

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From: nyclar...@googlegroups.com [mailto:nyclar...@googlegroups.com] On Behalf Of Eric Salant, Esq.
Sent: Monday, January 15, 2018 10:28 PM
To: nyclar...@googlegroups.com
Subject: [nyclarealprop] Boundary Line Agreement/Affidavit

 

 

Happy New Year All.

--

[Susan Pesner]

Hi Eric

I concur with your instincts.

Clearly neighbors' fence is inside their property line and title insurer/purchaser of neighbors property wants coverage for the potential claim. If your friend is amenable however be sure Agreement is carefully worded to protect against possibility of faulty survey.

Susan

Sent from my iPhone

On Jan 16, 2018, at 6:47 AM, Eric Salant, Esq. <esa...@Capital1031.com<mailto:esa...@Capital1031.com>> wrote:



Happy New Year All.

I have a friend who owns a house on Long Island. Their neighbor is selling their house and the Buyer's title company is asking my friend to sign an Affidavit saying they have no claim for the property between the neighbor's fence and my friend's property, as depicted on the new survey done by the Buyer. Survey shows neighbor's fence being 1.3 feet short of the property line. The friend asked my for my thoughts.

I have a couple of concerns:

What if the new survey is incorrect. Could my friend be giving up rights to property that is actually theirs?

What if the friend actually has a claim to a portion of the property through adverse possession? Why would they give up that claim?

I did not see this when I practiced in NY (did not do much outside of NYC), so I wanted to know if this is now standard for title companies to request this. Can't see any benefit to signing. Would just assume to have title company omit any claims by adjacent property owners.

Any help or guidance is appreciated.

Regards,
Eric Salant

Eric Salant, Esq.

esa...@Capital1031.com<mailto:esa...@Capital1031.com>

(800) 976-1031
(888) 976-1031 fax

Capital 1031 Exchange Company, LLC
Capital Self Directed IRA, LLC
998 Holmdel Road
Holmdel, New Jersey 07733

Capital 1031 Exchange Company, LLC
746 North Second Street, Unit 1C
Philadelphia, PA 19123

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[Hal Schirmer Esq]

I’ve have the reciprocal situation,

(Seller built a fence a few feet over the line, Buyers want a Neighbor to sign letter saying the encroachments can stay.)

 

It helped me to think of it this way:

When it comes to property borders, fences are like streams, they can change, and meander, and render your deed calls meaningless.

 

The issue you state wouldn’t be adverse possession, (where the Seller fences in somebody else’s property) (not yet at least)

but probably “consentable lines” where a fence is considered to be a monument that overrides the calls of the deed.

The question isn’t only “what if the new survey based on the deed is incorrect” but also

“what if the deed calls have been superseded by the fence?”

 

Neighbor could have a prescriptive easement over the strip of land, rights to use but not ownership.

Neighbor might have an inchoate claim to title of the property, but until somebody files suit, nothing’s been decided.

Adverse possession is just a fancy name for a statute-of-limitations defense to an ejectment action.

Until there’s an ejectment complaint by Seller, or a quiet title complaint by Neighbor, it’s just a potential cause of action.

 

Other interesting issues as between Seller’s and Neighbor.

- IF the fence is a new division line, does Neighbor’s home insurance cover him somebody is injured by a falling fence.

- IF the fence creates a new division line under the doctrine of consentable lines, do local zoning setbacks effect the line?  

Let’s say the local zoning code imposes a requirement that rear yard fences be set back 5’ from the property line.

Well, if you put up a fence, then doesn’t the zoning cod implying a consentable property line 5’ in from the fence?

- If the fence violates setbacks in local zoning law, does the fence being in violation of the law

prevent it triggering the doctrines of consentable lines or adverse possession?

 

- Seller has been paying taxes on property that neighbor is enjoying, can Seller seek contribution for pro-rata share of taxes?

 

Law Office of Henry L. Schirmer Jr.

Hal Schirmer Esq.

215 530 8274

 

 

 

From: Eric Salant, Esq.

Sent: Monday, January 15, 2018 10:27 PM

To: nyclar...@googlegroups.com

Subject: [nyclarealprop] Boundary Line Agreement/Affidavit

 

 

Happy New Year All.

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[Jaret Weber]

The title company is most likely requiring it because there is an issue of an out of possession or encroachment between the property to be sold and the neighboring property.  While the neighboring property is not a “party” as you state to the contract of title insurance between the sellers and the title company, the only way a title insurance company will insure over any encroachments on a survey is if there is not liability for any future claims.  That is only accomplished by both property owners executing a boundary line agreement that is then recorded in the land recors. 

 

I am working on one right now and as the neighboring property owner is not a “party” to the sale transaction and he title company, he is being compensated by the sellers for agreeing to execute such an agreement.

 

Jaret Weber

290 Broadhollow Road, Suite 200E
Melville, New York 11747-4818

P:         631.549.2000
F:         631.549.2015
C:         516.449.5602

jwe...@weberlawgroup.com
www.weberlawgroup.com

 

 

From: nyclar...@googlegroups.com [mailto:nyclar...@googlegroups.com] On Behalf Of Jacques Debrot
Sent: Tuesday, January 16, 2018 9:55 AM
To: nyclar...@googlegroups.com
Subject: RE: [nyclarealprop] Boundary Line Agreement/Affidavit

 

Why is your friend even thinking about signing such a document? Your friend is not a party to the deal and has no interest in it.

[Shaun James]

Definitely sounds like the title company is trying to avoid any “adverse possession” claim by your client.  I would not advise my client sign it.   

 

Shaun Michelle James 

Attorney

Smith Slusky Pohren & Rogers LLP

8712 West Dodge Road ‌ Suite 400 ‌Omaha, NE  68114

sja...@smithslusky.com

Phone 402.392.0101 ‌ Direct 402.505.8104 ‌ Fax 402.392.1011

 

 

             

 

 

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From: nyclar...@googlegroups.com [mailto:nyclar...@googlegroups.com] On Behalf Of Jacques Debrot
Sent: Tuesday, January 16, 2018 8:55 AM
To: nyclar...@googlegroups.com
Subject: RE: [nyclarealprop] Boundary Line Agreement/Affidavit

 

Why is your friend even thinking about signing such a document? Your friend is not a party to the deal and has no interest in it.

[Brian Graifman]

I’m completely unqualified to answer this query, but if friend wants to be a good neighbor, perhaps can condition the release on the title representation being accurate.

 

BRIAN D. GRAIFMAN, ESQ.

Counsel, Supreme Court Division

BORAH, GOLDSTEIN, ALTSCHULER,

NAHINS & GOIDEL, P.C.

377 Broadway, 6th Floor

New York, New York 10013

(212) 431-1300, ext. 322

(212) 965-2566 direct

bgra...@borahgoldstein.com

www.borahgoldstein.com

 

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From: nyclar...@googlegroups.com [mailto:nyclar...@googlegroups.com] On Behalf Of Eric Salant, Esq.
Sent: Monday, January 15, 2018 10:28 PM
To: nyclar...@googlegroups.com
Subject: [nyclarealprop] Boundary Line Agreement/Affidavit

 

 

Happy New Year All.

--

[LaPorta, Patricia A.]

Good morning

This is a very common ask from a title insurer for reasons you point out. The insurer does not want to have to defend a claim by a neighbor that he owns a strip of the property included in the legal description   contained in the deed/policy. Many people balk at the signing but it is the cleanest way to establish the true boundary line. You friend would or should have the survey and descriptions of neighbor’s property and his own property compared to be sure there is no overlap and that should put him at ease. Adverse possession is not an easy case to make so if your friend is not immediately put out by this request,  thinking that he owns that foot+ of land, I would suggest that he likely doesn’t make use of it to a degree that would substantiate adverse possession. 

Sent from my iPhone

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[ken Guttenplan]

I have a had a similar situation last year.  The purchaser of a house next to my clients was asking for a similar agreement. My client had purchased his property a few years ago.  That survey and the other survey  did not agree.  The purchaser’s attorney after he received my clients survey then had his surveyor redo his survey and they found out the new survey was incorrect.  Would look at your clients survey, description and title report before signing any agreement.  Your other concerns may be correct. But the facts should be verified before addressing your other concerns.  Glad to help.  Ken Guttenplan

 

From: nyclar...@googlegroups.com [mailto:nyclar...@googlegroups.com] On Behalf Of Eric Salant, Esq.
Sent: Monday, January 15, 2018 10:28 PM
To: nyclar...@googlegroups.com
Subject: [nyclarealprop] Boundary Line Agreement/Affidavit

 

 

Happy New Year All.

--

[Peter Sullivan]

On the road this morning, but in the office this afternoon and have thoughts for you. Peter Sullivan

Sent from my iPhone

On Jan 16, 2018, at 6:49 AM, Eric Salant, Esq. <esa...@Capital1031.com> wrote:

--

[Jaret Weber]

Eric,

There are many issues that go into a boundary line agreement. These include issues of proper surveys, property lines, indemnification issue and hold harmless agreements. They are not as simple as it is being made out to be by the other side. Feel free to call me to discuss these issues in my office or your client can contact me.

The firm is Weber Law Group LLP and the number is 631-549-2000

Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network.

From: Eric Salant, Esq. Sent: Tuesday, January 16, 2018 6:47 AM To: nyclar...@googlegroups.com Reply To: nyclar...@googlegroups.com

Subject: [nyclarealprop] Boundary Line Agreement/Affidavit

--

[Ephraim A. Bulow]

The advice that your client should ignore or refuse this request, which several of our colleagues have given, saddens me.  It is our duty to protect our clients’ interests, certainly, but in a case where a fence line may or may not be the property line, and a neighbor needs cooperation to close on a sale, why would we not assist is cooperating.

 

Asking the neighbor pay for legal and survey fees is reasonable and appropriate, but simply rejecting the request, seems to me both unprofessional and un-neighborly.  It’s enough that we have political leaders that act as though every transaction is a zero-sum game.  Must we stoop to that level.

 

Finally, while it may serve a litigator to have a reputation as a ‘bull-dog’ it is almost never, in my experience, the first choice for people looking for a transactional lawyer.  

 

 

Ephraim A. Bulow

Attorney-at-Law

7400 E. Crestline Circle, Suite 250
Greenwood Village, CO 80111
P: 720.554.9516 | M: 720.933.2059 | F: 303.220.3312

ebu...@bulowlaw.com

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[Paul Neumiller]

Perhaps west coast title companies are different from east coast title companies but is the title company really willing to turn away the business if they don't get the neighbor's agreement? Isn't the fall back for the title company to issue the policy and make an exception for the possibility of an encroachment? What if the neighboring property was owned by an absentee owner or out of the country, or tied up in probate for years, etc. There must be a fall back for the title company, and if not, switch title companies. -Paul Neumiller

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[Adam Mikolay]

I concur with Mr. Brofman.

 

Furthermore, If an agreement is not signed litigation will possibly ensue and your friend will be a defendant.  Of course, if he’s been occupying the 1.3 foot strip of land for more than the statutory period and wants to annex that land to his own, don’t sign it.

 

Adam E. Mikolay

ADAM E. MIKOLAY, PC

90 Merrick Avenue

Suite 501

East Meadow, NY  11554

PH 516-222-2050

Fax 516-222-0450

Ad...@Mikolaylaw.com

 

From: nyclar...@googlegroups.com [mailto:nyclar...@googlegroups.com] On Behalf Of Michael Brofman
Sent: Tuesday, January 16, 2018 8:34 AM
To: nyclar...@googlegroups.com
Subject: RE: [nyclarealprop] Boundary Line Agreement/Affidavit

 

Eric:  It is very usual for title companies to request boundary line agreements where the fence line is more than a foot off the survey line, in order to insure title against an adverse possession claim.  One of the keys is to see your friend’s deed and survey when he took title and see if it comports to what the adjoining property holder shows.  If it is the same, then there should be no problem signing a properly drawn agreement.

[Rory O'Bryan]

Why doesn’t the title company simply include a special exception in the policy of the buyer that it is not insuring and will not indemnify or defend against any claim adverse to title to the area of the insured property that lies outside the fence line?

One reason to sign a waiver or release of claim to the strip, preferably conditioned on accuracy of the survey (if the client does not have a contrary survey) is that the seller could go ahead and pay the cost to move the fence to the property line, which would eliminate the potential claim.  At least by signing, the claim is preserved if the new survey is wrong.  And to save the cost of moving the fence, the seller should be willing to pay something for the signed waiver.   

 

Rory O’Bryan

Harrison & Moberly, LLP

10 West Market Street, Suite 700

Indianapolis, IN 46204

317-639-4511

[Albert D'Agostino]

Title companies will generally assume the "business risk" where the encroachment is less than 1 foot.

While survey errors are relatively rare, they do occur.

Your friend may ask to have a second survey of the line done by another surveyor of your friend's choice to reduce the chance of a surveyor's error.

Was the fence constructed by your friend?  If so, when?  

You are probably aware of the 2008 amendment regarding adverse possession claims.

Regards,

Albert A. D'Agostino

Minerva  & D'Agostino P.C.

107 South Central Avenue

Valley Stream, NY 11580

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[Michael A Katz]

All of the arguments made by each responder are solid but lose sight of the fact that this is your new neighbor. Under the circumstances described, it makes a lot more sense to start a peaceful relationship if there is no real downside.

 

Michael A. Katz, Esquire

630 Third Avenue - 23^rd Floor

New York, NY 10017

 

212-682-6260

Virus-free. www.avast.com

[Rinaldi, Max]

How much land is in dispute? 

 

If your friend does not sign such a document (or a variation after review) and if the buyer refuses to close subject to this issue, the only remaining option for the neighbor would be to commence a quiet title action.  This will result in your friend incurring legal fees and costs.   Instead, your friend can either look at the survey on his purchase, or obtain his own survey (at the neighbor’s cost) and verify the property line.  In these types of affidavits,  your friend will be giving up claims for adverse possession since he is acknowledging that it is not his land.  The affidavit usually says that the fence can remain as long as it stands, but once it is replaced it must be placed on the property line.  If your friend has an adverse possession claim, he may be ultimately succeed in a quiet title action.  If not, then he is wasting money.  Your friend must perform a cost benefit analysis to determine if fighting is worth it. 

 

Max Rinaldi   
Kilpatrick Townsend & Stockton LLP   
The Grace Building | 1114 Avenue of the Americas | New York, NY  10036-7703  
office 212 775 8765 | cell 347 802 6118 | fax 212 775 8801 
mrin...@kilpatricktownsend.com | My Profile | vCard

From: nyclar...@googlegroups.com [mailto:nyclar...@googlegroups.com] On Behalf Of Jacques Debrot
Sent: Tuesday, January 16, 2018 9:55 AM
To: nyclar...@googlegroups.com
Subject: RE: [nyclarealprop] Boundary Line Agreement/Affidavit

 

Why is your friend even thinking about signing such a document? Your friend is not a party to the deal and has no interest in it.

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[Peter Walther]

If there is a lender involved in the purchase I suspect it would not accept a policy with an exception.  If there was sufficient equity I might be willing to authorize the issuance of a lender’s policy with affirmation coverage though an institutional lender probably would not want any exception in the policy.  If I were the Buyer I would not want to take title to property with a ownership question.

 

It’s possible there is an easement that burdens the Seller’s property between the fence and the common line so the fence was setback so as not to encroach on the easement.

 

If I were Mr. Salant’s friend and I agreed with the location of the common line and did not want to claim an easement right or fee interest in the land I would probably sign the affidavit.  But I would want to be sure of the common line location before I did so.  Refusing to do so will raise a red flag concerning a claim of ownership and might cause the Seller or his/her title insurer to file a declaratory judgment action to confirm the ownership of the land in question.  Would I really want to bring a lawsuit on myself over land I really don’t think I own?

 

Peter Walther| Claims Administrator| Westcor Land Title Insurance Company

875 Concourse Pkwy South | Ste. 200 | Maitland, FL 32751

P: 407.629.5842 | M: 407.389.9476 | E: pwal...@wltic.com

[Chris Minor]

I am guessing that's the buyer has asked for an extended coverage policy. Otherwise, the encroachmentsm should not be a problem. I assume that the same ALTA standard policy is issued in the East as is issued in the West, and there is an exception for encroachments. The standard policy does not require a survey and does not insure against exceptions. An extended coverage policy does require a survey and would insure against encroachments. The survey discloses the fence, which suggests the possibility of adverse claims. If the client declines to waive any claims to the strip can question, the title company can and probably will simply included an exception. However the buyer might decline to close the sale with such an exception.

 If the client cares about his relationship with the owner of the adjacent property, it might make sense to evaluate whether there is an adverse possession claim, whether the strip matters, and assist them in getting the sale closed.

Someone mentioned that it might be wise to include some language protecting against an erroneous survey. I think the wording could indicate that a claim based on adverse possession is waived but nothing is waived or released as falls within the description in the client's own deed.

Sent from my Verizon, Samsung Galaxy smartphone

Chris Minor

Minor, Bandonis & Haggerty PC

236 West Olive St.

Newport OR 97365

541 265 8888

Web: newportlaw.com

-------- Original message --------

From: Paul Neumiller <pneum...@hotmail.com>

Date: 1/16/18 10:00 AM (GMT-08:00)

To: nyclar...@googlegroups.com

Subject: RE: [nyclarealprop] Boundary Line Agreement/Affidavit

For more options, visit https://groups.google.com/d/optout.

[Gail Marcus]

Please share what the new amendment for adverse possession is in NY. Curious in Philadelphia.

 

Gail

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From: nyclar...@googlegroups.com [mailto:nyclar...@googlegroups.com] On Behalf Of Albert D'Agostino
Sent: Tuesday, January 16, 2018 5:58 PM
To: nyclar...@googlegroups.com
Subject: Re: [nyclarealprop] Boundary Line Agreement/Affidavit

 

Title companies will generally assume the "business risk" where the encroachment is less than 1 foot.

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[douglassegal]

Based on the facts presented, I am not convinced that Mr. Salant’s friend will be challenged if he stands his ground.  His neighbor’s (the seller) likely sole concern is that the sale goes through – if the seller collects his/her purchase price, he/she does not care who owns or uses the strip of land.  As such, the real person to be concerned about is the purchaser.  However, the purchaser presumably agreed to buy the house based upon the current actual use of the property, not upon the record ownership of the subject strip of land (the purchaser likely never even knew that the seller owned the strip of land beyond the fence).  As the purchaser wanted the property even with the fence in the wrong location, the purchaser won’t kill the deal on account of the fact that he may not have ownership of a strip of land which he never thought was part of the property anyway. 

[LEM Marshall]

I may have missed it in this chain, but I don’t think I’ve seen any mention of how long the fence has been present.  If this entire question arises from a fence that was placed there within the statutory period for AV, the seller need not worry so much about boundary lines, surveys and the like, but may defeat any claim to adverse possession – without adversely affecting any legitimate ownership interest of the neighbor – by simply granting permission to the neighbor to use whatever portion of the seller’s land lies outside the fence, until further notice.  (You’d want to describe the affected property carefully.) That permission could be renewed annually.

 

When I was in-house with a large REIT, we had a similar situation.  Along one boundary of a large suburban office park in which my client was the largest owner, land owned by the REIT was fenced from a neighboring residential neighborhood.  The problem was that the fence ran well on the REIT’s property and about 10 feet outside the back-yard boundaries of about 15 homes in the neighborhood.  All the owners were using the 10 feet as part of their “fenced-in” yards, with everything from swing sets to dog kennels to rose gardens.  The statutory period had not run, and we made sure it would not by sending each owner a certified letter (and other notices) asserting our ownership interest in the 10 feet and granting them permission to use it until further notice.  Each year, on the first business day of the new year, a similar letter still goes out to each owner.

 

In Virginia at least, granting explicit permission to the use of property will defeat adverse possession.  You might want to confirm that is true in your jurisdiction. 

 

If the statutory period has run, however, well, see all the interesting comments preceding.

 

Lawrence E. Marshall, II

Lawrence E. Marshall, II, PLC

5101 Cox Road, Suite 175

Glen Allen, VA 23060

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[Michael Brofman]

NY adverse possession amendment in 2008 said it is not adverse if the encroachment is de minimus, and lawn mowing , planting trees, fences, sheds, hedges etc. on the property does not change that.  The question still remains as to what is de minimus, but most view up to 2-3 feet as such.  We have a case now where the fence line encroachment of 3 feet occurred in the 1970s and possession was clearly adverse.  Our client (the encroacher) is looking to resolve it, but does not want his shade tree (which would be in the middle of the property line) taken down. 

 

Michael D Brofman, Esq.

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From: nyclar...@googlegroups.com [mailto:nyclar...@googlegroups.com] On Behalf Of Gail Marcus
Sent: Wednesday, January 17, 2018 12:34 PM
To: nyclar...@googlegroups.com
Subject: RE: [nyclarealprop] Boundary Line Agreement/Affidavit

 

Please share what the new amendment for adverse possession is in NY. Curious in Philadelphia.

[Paul Hogan]

In my area (Silicon Valley) surveys by buyers of developed residential lots are not common. But uncertainty over boundaries occur, usually in hilly areas where expediency of placement of driveways or fences was more important at the time than was adherence to following a line on a piece of paper that took no account of slopes, rocks or whatever was making life more difficult for the contractor.

I have found that often owners are perfectly happy to agree that the fence may or may not be the property line, and that if ever in the future the fence is to be rebuilt, some consideration would be given to moving the fence. In the meantime, any use of the other's property was permissive. No harm, no foul.

Paul Hogan

Sunnyvale, CA

[Tricia Kules]

I haven’t seen any discussion on who would maintain the strip.  The area between the fence and the property line could grow up to burdocks or worse.  It seems that an agreement for maintenance would be in order.

 

Patricia Kules

 

Patricia Kules, L.S.

Little River Survey Company, LLC

PO Box 1208

Stowe, VT  05672

802-253-8214

802-793-9673 cell

tri...@littleriversurveyvt.com

[Richards, Jonathan]

In New York there is a myth that an affidavit by an adverse possessor renouncing its claim of adverse possession is sufficient to cure the problem.  As I first said this is a myth.  There is unambiguous case law in NY holding that an affidavit cannot cure a the adverse possession of an adjoining owner because an affidavit is not a deed because, as it does not have language of conveyance.  If there has been adverse possession for the requisite time, the title is vested in the adverse possessor without the need for the entry of judgment (another myth) and an affidavit does not reverse the vesting of title, (see Ahl v. Jackson, 272 A.D.2d 965, 708 N.Y.S.2d 778 (2000) copy attached). 

 

Synopsis

Adverse possessor brought action to resolve dispute concerning certain parcel of property. The Supreme Court, Monroe County, Siracuse, J., granted summary judgment in favor of adverse possessor. Defendant appealed. The Supreme Court, Appellate Division, held that: (1) trial court properly determined that adverse possessor obtained title to disputed parcel by adverse possession, and (2) statement of adverse possessor in “fence affidavit” after statutory period had run was insufficient to divest him of title.

 

An acceptable alternative to a deed is a boundary line agreement provided it contains the requisite language of quitclaim grant and conveyance.

 

Jon Richards

---------------------------------------

Jonathan A. Richards, Sr. VP & Special Counsel

Fidelity National Title Group:

Chicago Title Insurance Company

Commonwealth Land Title Insurance Company

Fidelity National Title Insurance Company

 

Contact:

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Email jric...@fnf.com

 

 

 

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From: nyclar...@googlegroups.com [mailto:nyclar...@googlegroups.com] On Behalf Of Adam Mikolay
Sent: Tuesday, January 16, 2018 11:05 AM
To: nyclar...@googlegroups.com
Subject: RE: [nyclarealprop] Boundary Line Agreement/Affidavit

 

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[Thomas G. Sherwood]

Hi Jon, hope all is well. 

 

When I prepare a fence affidavit, I make sure that the party whose fence encroaches states that he or she has never claimed an interest in the neighbor’s property by adverse possession.   A claim of right is a necessary element of adverse possession in New York.   So long as that party has been in title to the adjacent property since the fence was erected, shouldn’t that solve the problem addressed in Ahl v. Jackson, by precluding any possibility that title by adverse possession ever vested in the first place?  Hard to imagine that Mr. Awl could have persuaded the court of his adverse possession claim after executing a better fence affidavit.

 

Regards,

 

Tom Sherwood

 

 

Thomas G. Sherwood, Esq.

Thomas G. Sherwood, LLC

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(516) 408-7032 Fax

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[Albert D'Agostino]

I still refer to RPAPL 543(1) as a "new" statute, though it has been in effect for almost ten years.

.

Boundary line agreements are not uncommon in this area 

Of course, your friend should satisfy himself as to the accuracy of the neighbor's survey...perhaps requiring a second survey from a surveyor chosen by your friend at the neighbor's cost.

Pursuant to RPAPL 543(1), a de minimus encroachment of a fence is deemed to be permissive and not adverse.

If, however, your friend's fence was in existence for at least 10 years prior to the 7/8/08 effective date of the statute, and all of the pre-7/8/08 elements of adverse possession were present, the fence would not be "deemed" permissive, and may very well give rise to an adverse claim by your friend vs. the neighbor.

Albert A. D'Agostino

Minerva & D'Agostino PC

107 South Central Avenue

Valley Stream, NY 11580

516-872-7400

On Mon, Jan 15, 2018 at 10:27 PM, Eric Salant, Esq. <esa...@capital1031.com> wrote:

Happy New Year All.

I have a friend who owns a house on Long Island.  Their neighbor is selling their house and the Buyer's title company is asking my friend to sign an Affidavit saying they have no claim for the property between the neighbor's fence and my friend's property, as depicted on the new survey done by the Buyer.  Survey shows neighbor's fence being 1.3 feet short of the property line.  The friend asked my for my thoughts. 

I have a couple of concerns:

What if the new survey is incorrect.  Could my friend be giving up rights to property that is actually theirs? 

What if the friend actually has a claim to a portion of the property through adverse possession?  Why would they give up that claim? 

I did not see this when I practiced in NY (did not do much outside of NYC),  so I wanted to know if this is now standard for title companies to request this.   Can't see any benefit to signing.   Would just assume to have title company omit any claims by adjacent property owners. 

Any help or guidance is appreciated. 

Regards,
Eric Salant

Eric Salant, Esq.
esa...@Capital1031.com
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[Eric Salant, Esq.]

Thank you all very much for your advice.  This was an incredible response and it highlights the usefulness of this listserv.   Your collective wisdom was helpful beyond my expectations. 

In case it was not clear, the neighbor's fence is on the neighbor's property and is 1 1/4 feet away from my friend's property line.  Apparently the fence was put where it is to comply with a 1 foot setback requirement(???).  My friend has not utilized the strip except as part of the lawn.  I do not believe it would be subject to a claim for adverse possession under the revised statute.  My friend has no interest in going that route anyway. 

If the property line looks correct on the new survey, as compared to the very old survey of my friend, they will sign the affidavit, but mark up that we are only acknowledging neighbor's ownership of their property to the actual property line, whatever that might be.  Will strike reference to new survey or limit it to the extent it shows the true and correct boundary line between the two properties.

Again, all of the advice has been fantastic.  I learned a great deal about NY property line issues and the somewhat recent changes to adverse possession law under these circumstances. 

If anyone ever needs advice or assistance on NJ property tax appeals (certiorari), or on 1031 Exchanges, please do not hesitate to contact me.  As a thank you, and as a shameless plug for our company, I am including a 1031 Exchange Guide we have developed for your review.  We are able to initiate tax deferred exchanges in 43 states including NY, NJ, CT, and PA.   We also have a division that handles self directed IRA's for use in real estate investing. 

Regards,
Eric Salant

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On 1/16/2018 6:57 AM, 'Cliff Lewisohn' via nyclarealprop wrote:

First thing your friend should do is compare the new survey being presented by the buyer of the other property against his own survey and see if they match. If they match my advice would be to have him sign the affidavit and attach a copy of the new survey confirming that those are the proper boundary lines. The reality of a successful adverse possession claim including the legal fees to be extended to possibly, and only possibly acquire a 1.3 foot strip might not be worth The money he would have to spend in legal fees and court costs. 

Sent from my iPhone

On Jan 15, 2018, at 10:27 PM, Eric Salant, Esq. <esa...@Capital1031.com> wrote:

Happy New Year All.

I have a friend who owns a house on Long Island.  Their neighbor is selling their house and the Buyer's title company is asking my friend to sign an Affidavit saying they have no claim for the property between the neighbor's fence and my friend's property, as depicted on the new survey done by the Buyer.  Survey shows neighbor's fence being 1.3 feet short of the property line.  The friend asked my for my thoughts. 

I have a couple of concerns:

What if the new survey is incorrect.  Could my friend be giving up rights to property that is actually theirs? 

What if the friend actually has a claim to a portion of the property through adverse possession?  Why would they give up that claim? 

I did not see this when I practiced in NY (did not do much outside of NYC),  so I wanted to know if this is now standard for title companies to request this.   Can't see any benefit to signing.   Would just assume to have title company omit any claims by adjacent property owners. 

Any help or guidance is appreciated. 

Regards,
Eric Salant

Eric Salant, Esq.
esa...@Capital1031.com
(800) 976-1031
(888) 976-1031 fax
 
Capital 1031 Exchange Company, LLC
Capital Self Directed IRA, LLC
998 Holmdel Road
Holmdel, New Jersey 07733

Capital 1031 Exchange Company, LLC
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Philadelphia, PA 19123

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