My Neighbor's Fence Is on My Property. Now What?
A survey shows the fence, the shed, or the driveway is over the line. Here is how New York law treats boundary encroachments, and when a neighbor can claim the land.
It usually comes to light when someone orders a survey for a sale, a refinance, or a new fence. The surveyor's stakes are not where everyone assumed the line was, and a neighbor's fence, shed, or driveway is partly on your land.
Start with the survey and the deeds
A boundary is fixed by the deeds and by a licensed surveyor's reading of them, not by where a fence or hedge has always been. The first step is an accurate, current survey. If the neighbor disputes it, the neighbor can commission one too, and differences between surveyors are sometimes the whole dispute.
Can the neighbor claim the land?
This is the fear behind most boundary disputes. Under the doctrine of adverse possession, a person who occupies someone else's land for long enough can become its owner.
In New York the requirements are demanding. The possession must be:
- hostile and under a claim of right,
- actual,
- open and notorious,
- exclusive, and
- continuous for at least ten years (CPLR 212(a); RPAPL § 501).
In 2008 the Legislature made these claims harder to win:
- A claim of right now means a reasonable basis for believing the property belongs to the person claiming it (RPAPL § 501(3)).
- Minor, non-structural encroachments, a category the statute describes as including fences, hedges, shrubbery, plantings, sheds, and non-structural walls, may be treated as permissive, depending on their size and extent, and so do not support a claim (RPAPL § 543).
- Mowing or similar maintenance across the boundary line is likewise treated as permissive.
One important qualification: the 2008 changes do not undo ownership that had already ripened before they took effect. Where the ten years were complete before July 2008, the older and more forgiving rules may still apply. Long-standing situations need careful analysis.
What you can do about an encroachment
Talk first. Many of these are honest mistakes made by a previous owner. A conversation and a copy of the survey resolve a good number of them.
Put an agreement in writing. Neighbors can sign a boundary line agreement, or the owner can give written permission, a license, for the structure to stay. Written permission also protects you, because possession that is by permission is not adverse. An agreement meant to bind future owners should be properly drafted and recorded.
Send a letter. A lawyer's letter that sets out the survey and asks for removal by a certain date is often enough.
Go to court. An owner can bring an action to have an encroaching structure removed (RPAPL § 871), or an action to have the court determine who owns the disputed strip (RPAPL article 15). Courts weigh the fairness of the situation. Where an encroachment is slight and removing it would cost far more than the harm it causes, a court may award money instead of ordering removal.
What not to do
Do not tear down the fence or the shed yourself. Self-help can turn you from the injured party into a defendant, and it rarely ends the dispute.
Do not ignore it, either. Time is the one thing that can help an encroaching neighbor's legal position.
When you are buying or selling
An encroachment will usually appear on the survey and may be raised by the title company. It is far easier to resolve with a signed agreement before a closing than to litigate afterward.
If a survey has turned up a boundary problem, call the office. For more, see Real Estate.
Attorney Advertising. These posts are general information about New York law, not legal advice about your situation, and reading them does not create an attorney–client relationship. Laws and deadlines change and depend on the facts; each post speaks as of its date. See the full Disclaimer & Disclosure Statement.