Boundary dispute with neighbor - Upstate NYS

[DNisich]

What is the name of your state (only U.S. law)? New York State - Saratoga County

Short description:
My neighbor and I disagree on the exact location of the side line that separates our two lots.
I have a survey that was performed last year that confirmed that the line is where I believed it to be.
Additionally, the same survey revealed that there is a section of my neighbor's privacy fence that is encroaching.
My neighbor, after seeing the surveyors install the corner and side line rods, claimed that they do not believe my survey to be accurate.
I offered to wait for a reasonable period of time to allow the neighbor get their own survey.
Also, in the event that they might be able to produce a survey that calls my survey into dispute, I have not yet taken any action along the property line.
I.e. there are some plants growing out of the ground on my side of the line that I want to remove and large amount of over hanging limbs that I want to trim back to the property line. I have not yet touched any of these items.
The invitation for them to produce their survey was offered early last July.
It has been 8 months since and they have not performed.
They have also indicated (verbally) that they do not intend to get a survey nor to recognize mine.

I think that I would like to file some

 

[latigo]

What is the name of your state (only U.S. law)? New York State - Saratoga County

Short description:
My neighbor and I disagree on the exact location of the side line that separates our two lots.
I have a survey that was performed last year that confirmed that the line is where I believed it to be.
Additionally, the same survey revealed that there is a section of my neighbor's privacy fence that is encroaching.
My neighbor, after seeing the surveyors install the corner and side line rods, claimed that they do not believe my survey to be accurate.
I offered to wait for a reasonable period of time to allow the neighbor get their own survey.
Also, in the event that they might be able to produce a survey that calls my survey into dispute, I have not yet taken any action along the property line.
I.e. there are some plants growing out of the ground on my side of the line that I want to remove and large amount of over hanging limbs that I want to trim back to the property line. I have not yet touched any of these items.
The invitation for them to produce their survey was offered early last July.
It has been 8 months since and they have not performed.
They have also indicated (verbally) that they do not intend to get a survey nor to recognize mine.

I think that I would like to file some

It seems that your neighbor doesn't look upon your offer to give him a reasonable time to incur the cost of a survey as being as magnanimous as you envision it.

Might it be that you are less familiar with New York's laws regarding boundary by practical location and acquiescence than your neighbor?

And what is it you would like to file?

 

[DNisich]

Sorry about the clipped off post from earlier. The first time that I tried to post it, the interface kind of bonked out and cut me off.

What I meant to say about taking some sort of legal action is that perhaps filing a lawsuit or some sort of motion with the court would force my neighbor to either prove that they are not encroaching by way of an actual professional survey or remove their fence from my lot.

I'm bit confused about how my neighbor feels about the offer to give them time to produce a counter survey matters.
If a survey isn't enforceable then why would anyone ever get one? Also, if they can just ignore a survey then I should able to also right? Given that they don't even have a survey, what's to keep me from simply removing the vegetation that I don't want?

I had to Google practical location and acquiescence as I was/am not very familiar with it. Neither the neighbors or I are the original owners of these houses. It could be true that the families that previously owned these two houses and lots had by practical location and acquiescence just agreed that fence is the property line. Is pl&a something that is at the discretion of the court or automatic after 10 years?

However, my neighbor isn't saying the fence is the property line but rather that the true line is several feet past the fence in the direction of my house. If they did try to make the argument that pl&a makes the fence the true line then I would still get back just about all of the disputed area. The survey only showed that a small section of the fence was across the line by about 5 inches. My thinking with seeking relief in court about it was the hope that it would force them to get a survey or if they did not the court might recognize my survey as being true.

 

[latigo]

Sorry about the clipped off post from earlier. The first time that I tried to post it, the interface kind of bonked out and cut me off.

What I meant to say about taking some sort of legal action is that perhaps filing a lawsuit or some sort of motion with the court would force my neighbor to either prove that they are not encroaching by way of an actual professional survey or remove their fence from my lot.

I'm bit confused about how my neighbor feels about the offer to give them time to produce a counter survey matters.
If a survey isn't enforceable then why would anyone ever get one? Also, if they can just ignore a survey then I should able to also right? Given that they don't even have a survey, what's to keep me from simply removing the vegetation that I don't want?

I had to Google practical location and acquiescence as I was/am not very familiar with it. Neither the neighbors or I are the original owners of these houses. It could be true that the families that previously owned these two houses and lots had by practical location and acquiescence just agreed that fence is the property line. Is pl&a something that is at the discretion of the court or automatic after 10 years?

However, my neighbor isn't saying the fence is the property line but rather that the true line is several feet past the fence in the direction of my house. If they did try to make the argument that pl&a makes the fence the true line then I would still get back just about all of the disputed area. The survey only showed that a small section of the fence was across the line by about 5 inches. My thinking with seeking relief in court about it was the hope that it would force them to get a survey or if they did not the court might recognize my survey as being true.

Since you are not claiming ownership of any lands other than as described in your deed your only means of "seeking relief in court" and forcing your neighbor to put up or shut up is by way of a lawsuit asking for a declaratory judgment. And that is not a do-it-yourself-pro se project. It is going to cost you plenty wampum.

 

[154NH773]

I think there are two ways you could proceed.
The first is simply treat the property described in your deed and on the survey as yours and do whatever you like with it. If your neighbor disagrees, it will force him to initiate legal action to quiet title. You have a survey and if he doesn't get one as evidence in his case it is likely you would win.
The other way to proceed would be to file a suit to quiet title. I disagree that it would be prohibitively expensive or couldn't be done pro se.
In my opinion you should proceed in the former manner and make him initiate proceedings.

 

[154NH773]

If you do proceed to try and remove his fence, I would consult a lawyer, provide adaquate notice, and do not damage or dispose of the fence that was removed.

 

[NC Aggie]

If you do proceed to try and remove his fence, I would consult a lawyer, provide adaquate notice, and do not damage or dispose of the fence that was removed.

^^What he said. I don't know if it's even necessary to get a lawyer or court involved at this point. If your surveyor provided you with a legal boundary survey that's been stamped, then include a copy with a certified letter and provide it to your neighbor. You have every right to remove items off your property after given notice to the property owner.

 

[DNisich]

Thanks for the additional advice folks.

I hadn't checked back in few days here but had been continuing to think about the matter. I had landed about where you guys did. I've got all the proof I need to show any authority that questions me that I am just a home owner working in his own yard. If my neighbor wants to start any sort of court case as a result of that, let them.

 

[latigo]

I think there are two ways you could proceed.
The first is simply treat the property described in your deed and on the survey as yours and do whatever you like with it. If your neighbor disagrees, it will force him to initiate legal action to quiet title. You have a survey and if he doesn't get one as evidence in his case it is likely you would win.
The other way to proceed would be to file a suit to quiet title. I disagree that it would be prohibitively expensive or couldn't be done pro se.
In my opinion you should proceed in the former manner and make him initiate proceedings.

With all due respect, how can you suggest that without the neighbor obtaining a survey as "evidence" he will lose when you nor none of us have a clue as to the physical make up and appearance of the ground in question nor how long that condition it has existed?

And as far as suggesting a quiet title action as the OP's alternative course of action have you ever filed one and carried one through to a final decree? Because if you have you'd know that they are an expensive, paper eating, time consuming PAIN IN THE ASS!

Moreover totally unnecessary where the OP can produce record title to the ground he claims. If he were claiming title to something not described in his deed it would be different, but he isn't.

 

[DNisich]

Since we are still hashing this one out, I'd like to ask a couple of follow questions if you folks wouldn't mind...

Let's assume that before this is over my neighbor and I do end up in court.
As far as I can tell there are only three ways by which the neighbor could prevail:
1. They produce a survey that calls my survey into dispute and shows that their fence is not encroaching
2. They claim adverse possession as the reason that they own the land under the fence where it crosses the true property line
3. They claim that by way of practical location and acquiescence that the fence has become the true line over the years.


With regard to 1, I'm skeptical that this could really happen. Both of our deeds say that we own our respective properties and if you want to know exactly what is owned that you should consult a particular map that was filed in the county records when this land was subdivided. This would be county map AA-112. AA-112 is a fairly modern map (done in 1968 I believe) so there are specific locations called out for corners and lines. I.e. nothing like "along the old creek" or "by the large elm tree". As far as I can tell, just map coordinates and compass directions are used. So I think there is very little ambiguity about what exactly each of us owns. My survey that was done last July matches the historical records exactly. Also, my surveyor assures me that his measurements are exact to within +/- 1/10 of a foot (+/- 1.2 inches). Even if they prove some sort of mistake on AA-112 with regard to their lot, my records all match so I don't think even that would be something that they could use against me. Maybe they could sue their title insurance company or something I suppose. My surveyor also told me that the only way that my survey could move in the direction that my neighbor claims would be if all the other surveys on this block moved in the same direction in order to accommodate the shift. Basically, he is pretty certain that this simply can't happen.

With regard to 2, as I understand the NY RPAPL, the basis of an adverse possession claim cannot be something that is "de minimus". This is from article 5. Section 543 goes on to list some items that by their nature are permissive and therefore cannot be the basis of a adverse possession claim. The first item on the list is fences. So I think this one is a non-starter. Plus, if they claim adverse possession then aren't they also implicitly acknowledging that line marked by my surveyor is the true line? After all, they can't really adversely possess that which they actually own right?

With regard to 3, this might be a question mark. As I think I understand the law, in order to claim that the owner acquiesced to the fence becoming the actual line as opposed the line that is called out in AA-112, there would have to be no protest from this side for 10 years. Neither of us has lived in these locations for 10 years yet. Their deed was filed in October of 2009 I think. Mine was in October 2012. I think the fence probably predates their purchase though. My questions then are these:
If the fence predates when they bought the property does the time that the former owners of both properties didn't contest the matter count towards the 10 years?
If so, will the neighbors have to present some sort of real proof that the fence is older than 10 years? Unless there is some permitting record or something, I think most likely they won't be able to. If that turns out to be the case, then wouldn't I still win the practical location argument because acquiescence won't be proved right? Also, by even attempting to argue PL, they would have to implicitly recognize the dividing line as marked by my surveyor is correct because otherwise, the fence would be entirely on their property already.

 

[154NH773]

I think you have a good enough grasp on the facts and laws to represent yourself in court. I once again disagree with latigo saying it would be costly. I successfully brought a quiet title case using only a survey and filed deeds from the Registry. The only cost was filing fee and survey.
Remember, if you simply act as if the land is yours, your neighbor would have to take the legal action. What are the chances that he will?
That said; COURT IS A CRAPSHOOT! No matter what the facts and law are, the court can make any decision it wants. Appeal of a decision can be more costly than the original case, and there is always the chance you could lose property in the decision.

 

[154NH773]

With due respect to latigo, although I don't believe the quiet title would be overly expensive, I do agree that it would be a "paper eating, time consuming PAIN IN THE ASS!"

 

[DNisich]

Many thanks for guidance folks. From here I think am resolved to simply assert possession of my lot.

Can any of you offer a suggestion about how long I should offer the neighbor as a notice that I intend to remove his fence from my lot? Also what if any risks or potential consequences might I face for doing so?

 

[latigo]

With due respect to latigo, although I don't believe the quiet title would be overly expensive, I do agree that it would be a "paper eating, time consuming PAIN IN THE ASS!"

It escapes me as to why anyone would consider the drudgeries and costs of quieting title to land when their ownership of same is a matter of record!

Such an action lies where the proponent wishes to gain ownership by judicial decree. And to do that he must in essence sue the entire friggin' world, order and pay for a lot and book report naming the necessary party defendants, prepare and file a motion and order for publication of summon, publish summons naming all unknown devisees, heirs and claimants, etc., etc.

In sum, since the purpose of a quiet title action is to seek a decree establishing ownership in the claimant, why would this OP need to ask a court to grant him title to the same land described in his deed and verified by survey?

Makes no sense to me.