We recently obtained the survey of our property because we are having a new fence installed. Upon reviewing the survey we notic

05/17/07 - Category: Real Property - Encroachment - State:New York #5103

Full Question:

We recently obtained the survey of our property because we are having a new fence installed. Upon reviewing the survey we noticed a difference of one foot to our advantage between the survey and what the fence company measured with the existing fence. We would like to take advantage of that extra foot but now it seems that our neighbor has his outdoor shed resting up against the old fence that has to be removed and replaced with a new one which would make it resting on our property. Is there any law about how far from the neighboring property one can construct an outdoor shed? What legal recourse do we have? Do we have the right to ask the neighbor to remove this shed?

Answer

Survey equipment is much more accurate now than when many original government surveys were made. Where an original government survey is found to be erroneous or the original corners and lines have been wholly lost, any deficiency or surplus should be apportioned equally among the areas affected by the survey. If after a tract of land has been subdivided into parts or lots, and title thereto has become vested in different persons, it is discovered that the original tract contained either more or less than the area assigned to it in a plan or prior deed, the general rule is that the excess should be divided among, or the deficiency borne by, all of the subdivided tracts or lots in proportion to their areas. The causes contributing to the error or mistake are presumed to have operated equally on all parts of the original plat or survey, and for this reason every lot or parcel must bear its proportionate part of the burden or receive its share of the benefit of a corrected resurvey.

Where the apportionment is to be made among lots comprising several blocks, each block must, if possible, be considered an entity for the purpose of the apportionment absorbing its own deficiency or excess, and only as a last resort should the rule embrace the plat as a whole.

You also need to consider the possibility of adverse possession. The laws of adverse possession allow a person to obtain title to land by simply using the land for a period of time specified by state law. For example, a neighboring property owner may have built a fence, placing it several feet inward on his property. If a person knows that a fence is on his land, but do not dispute its placement, title to that portion of the property could be lost. The intruder's use of the land must be in the open for everyone to see. Title to land is acquired by adverse possession as a result of the lapse of the statute of limitations for ejectment, which bars the commencement of a lawsuit by the true owner to recover possession of the land. Adverse possession depends upon the intent of the occupant to claim and hold real property in opposition to all the world and the demonstration of this intention by visible and hostile possession of the land so that the owner is or should be aware that adverse claims are being made.

In order that adverse possession ripen into legal title, non-permissive use by the adverse claimant that is actual, open and notorious, exclusive, hostile, and continuous for the statutory period must be established. All of these elements must coexist if title is to be acquired by adverse possession. Adverse possession must be continuous for the full statutory period if title is to vest. This period is at least ten years in New York. Continuity means regular, uninterrupted occupancy of the land. Mere occasional or sporadic use is not enough.

While continuous possession is required for the acquisition of title by adverse possession, it is not necessary that only one person hold the land continuously for the statutory period. The time periods that successive adverse occupants have possessed the land may be added together to meet the continuity requirement if privity exists between the parties. The addition of these different periods is called tacking. Privity refers to the giving of possession of the land from one owner to the next so that it is continuously occupied by a possessor. Privity exists between different persons whose interests are related to each other by a sale or inheritance of the land or by operation of law, as possession by a trustee in bankruptcy.

You may want to consider entering into a boundary line agreement with your neighbor. See USLF Numbers NY-CC-030, NY-T-0029, and NY-T-0114.