Property Disputes and New York Civil Engineering and Surveying Land Law
If you believe that your neighbor is making an alteration to their property that affects your property, you should first consult the survey you had prepared when you purchased your property. A survey is a defined as “The process of which a parcel of land is measured and its boundaries and contents ascertained; also a map, plat or statement of the result of such survey, with the courses and distances and the quantity of the land.” Black's Law Dictionary, 1445 (6th ed. 1990). Essentially, your survey is a map that shows the borders of your property as well as any structures existing on the property at the time the survey was made.
For example, if your neighbor is planning to construct a fence and you believe the location of the proposed fence would be on a portion of your property, you should refer to your survey to determine the boundary lines of your property. It may be difficult to read and interpret the exact boundary lines on the survey, so you may have to contact a licensed surveyor.
In today’s frenzied second home market, buyers are increasingly concerned about privacy, while banks are primarily concerned with what expenses the borrower might incur other than the cost of the mortgage and taxes. In one recent case, one neighbor sought to sell their home in Ulster County (Adirondack’s).
Access to both houses was made through a “common driveway” because the original owners had owned both lots before selling to different neighbors. Since it was a sleepy old-time town, when ownership split to new owners no one ever thought to get an easement or an agreement whose property the driveway was located upon, who was required to maintain the driveway, and setting forth what could (could not be) done as to the improvement of the driveway.
One neighbor went to sell the property and was asked if there was a “common driveway agreement,” setting forth who would pay for want expenses (snow plowing, pot holes, etc.). Rather than reach across the table (driveway) and ask about these issues with their long time but sporadic weekend neighbors, the sellers simply had their attorney write a “nasty” note telling them to “stay off the driveway.” They had no survey, no idea where the common driveway might run and whose property they fighting over.
Without the survey, the negotiation seemed frivolous and misguided because no one could argue with any authority where the driveways were located. Moral of the story is that one should not throw stones in a glass house because it turned out that one party owned the access point to the driveway, but could not utilize their own parking area without crossing the neighbor’s property. The survey allowed the parties to re-evaluate their respective tones and perspectives.
The following blog post by Peter Klose explains the importance of surveys:
A New York licensed land surveyor (LS) is a professional who uses mathematics and other technical and research skills to measure and plot the dimensions of the earth’s surface, the contour of the earth’s surface, natural or other structures on the earth’s surface, and the lengths and directions of boundary lines.
For more detailed information on land surveyors, you can click on this link
In our example, you could hire a licensed surveyor to resolve the dispute with your neighbor. The surveyor could compare your survey to your neighbor’s survey and determine whether the location of your neighbor’s proposed fence encroaches (or comes on to) your property. If the neighbor refuses to acknowledge that the proposed fence would be on your property, you may have to file a legal action to prevent the neighbor from constructing the fence.Should I hire a lawyer to protect my property in Court?
In this example, it is important to realize that this simple dispute could have a significant impact on the value of your property. If you allow the neighbor to construct the fence that encroaches on your property, there is a New York State law that states your neighbor may actually become the owner of that portion of your property after a period of time! The legal concept allowing for this transfer of land by the passage of time is known as adverse possession. Thus, it is recommended that you have a legal professional with knowledge of these issues to assist you in protecting your property.
To read a blog post written by Peter Klose where he reviews an actual New York legal case in Nassau County involving fences and adverse possession click here
The lawyers at Klose & Associates have been practicing law for decades. A significant portion of the practice is dedicated to real estate law and we have the requisite knowledge to protect your interests in court.
It is important to hire a New York lawyer that has experience in real estate matters. For an interesting read, check out the blog post by Peter Klose entitled “The new leader of Legal Malpractice Claims– Hire the Right Real Estate Lawyer.” The article describes the fact real estate claims are a significant portion of the total of legal malpractice claims filed by clients against their lawyers.