Now that the heat of summer is mostly behind us, and before the winter rains (hopefully) come, foresighted property owners are focusing on getting their property and landscaping ship-shape. One client who owns residential real estate called me with a question about fences and boundary lines. He complained loudly that the “cost of a survey was more than the fence!”
My client was concerned because the fence, which was in poor repair and needed to be replaced, did not seem to create a clear boundary. He didn’t want to inadvertently give away a portion of his property by agreeing to a new replacement fence on a possibly inaccurate property line, but was unhappy at the idea of engaging a surveyor to find the property line.
Property Owners
While my client was wise to be wary of the issue, I was able to reassure him that his worries were not warranted. Over the last twenty years or so, the California courts have curtailed the ability of property owners to assert claims of ownership or use over neighboring property, especially in more developed residential areas, by placing limits on the legal doctrines of “adverse possession” and “prescriptive easement.” For those of you who may be facing similar situations, it may be useful to go over some of the considerations involved in boundary issues.
Residential property
For residential property located in an urban/suburban area, the only reason a property owner would even consider performing a survey, in my view, would be if there were a visually-obvious issue (e.g., a lengthy fallen or decrepit fence), an unusual circumstance (e.g., flag lots or easement access to the property), or a plan to rebuild or redevelop the property (e.g., where zoning restrictions on new construction impose precise size limits to be accounted for). Otherwise, the title insurance policy you received when you purchased your property will likely suffice to protect your interests.
For residential property located in a more rural area, your title insurance policy will still probably be enough to deal with most potential issues you might face. However, because these types of properties tend to be larger and less accessible, it is possible that there may be more situations in which the boundaries of your property would be a concern that would require a survey to be done.
Bare land or commercial property
For bare land or commercial property, it is a good idea to purchase a title insurance policy together with a survey to protect your economic interests, because of the seriousness of the financial harm that could befall you if your property’s boundaries did not conform to your expectations or the requirements of your use. Of course, if you are acquiring commercial property or bare land with a commercial loan of any type, the lender will require a title insurance policy with a survey, for the same reasons as set forth above.
Certainly, there is a difference between actually establishing a boundary between two lots, and insuring yourself from economic harm because of confusion or disagreement about the boundary. A survey is the only way to determine the former; these days, at least for residential owners in urban/suburban developments, a title insurance policy will protect you from the latter.
Title insurance policy
In my client’s case, each owner’s title insurance policy should be sufficient to protect their respective property interests. Of course, a survey is always an option. In such cases, however, I recommend that only ONE survey be done, and that both owners “agree” to the findings, to avoid a dispute over the subjective elements of those findings.
If you find yourself facing a boundary issue, the following link provides a useful reference on tools and precedents in California, reflecting recent changes. http://www.clta.org/for-members/legal-disputewallfence.html
