The Facts: I am selling my house. A number of years ago I replaced the fence that enclosed my back yard. The person who is buying my house had my property surveyed and it appears that the fence is about 3 feet inside my property line. The title company is requiring me to obtain a boundary line agreement from my neighbor.

The Questions: Is a boundary line agreement necessary under these circumstances? And if so, why is it needed?

The Answer: The quick answer to your first question is, yes. A boundary line agreement is necessary because the title company will not insure the buyer’s ownership interest in the land between the property line and the fence without a writing in which the neighbor states that he has no claim to the land.

The problem you are having is actually very common, especially when old fences are replaced and when new fences are installed without reference to a survey. When a fence is installed inside a property line, the placement of the fence effectively makes the enclosed property appear smaller and allows neighbors to make use of the land between the actual property line and the fence. For example, by installing a fence 3 feet inside your property line, your neighbors may believe that the 3 feet of land outside the fence is actually theirs and may plant hedges or widen their driveway accordingly. Especially in the case of a driveway that encroaches upon your property, the continued use by your neighbor of that driveway may create an easement or develop into an adverse possession claim. If that happens, your use of your property will be negatively impacted and may result in litigation. In any event, when you sell your property, you will need to address the problems created by the misplaced fence.

Assuming your neighbor does not assert an adverse possession claim stating that the land between the fence and the property line is actually his, the title company will likely require that you and your neighbor enter into a boundary line agreement that describes the exact location of the property line. The agreement will be recorded with both your deed and your neighbor’s deed insuring that future owners can accurately locate the property line regardless of the placement of a fence or driveway. When a fence is only off the property line by a foot or so, the title company may accept an affidavit from the neighbor stating that he has no ownership interest in or claim to the land between the fence and the property line. Since the affidavit is not recorded with the land records, it provides a less costly and less formal resolution to the problem created by a misplaced fence. What type of documentation the title company requires is fact specific.

Boundary line disputes (or potential disputes) like the one you described can delay the closing on a real estate transaction and, if not resolved, may be the basis for a buyer terminating the contract of sale. Since so much is at stake, such disputes should not be taken lightly but should be handled by a real estate attorney with experience resolving boundary line disputes and working with title companies.

This article first appeared in the March 25, 2015 issue of the Times Beacon Newspapers.

Linda M. Toga of The Law Offices of Linda M. Toga, P.C. is an East Setauket,New York attorney with a general law practice focusing on estate planning, real estate, marital planning, small business services and litigation.