Is the Fence the Boundary

[orthoslogos]

My question involves real estate located in the State of: Alabama

I purchased property from my Grandfather 3 years ago. When he purchased the property 28 years ago he built a boundary fence through an open field and it has always been accepted as the boundary line by the adjoining land owners. By "owners" I mean the adjoining property was passed from father to son around 15 years ago. The current owner recently had his property surveyed. He informed me that the survey showed that the fence was angled off of what should be the property line over on to his side about 60 feet over about a 1000 foot line creating an approx.. 1 acre wedge that he believes is his. Our county plat maps also show the difference when layered with aerial photos. Again the fence was established as a boundary fence 28 years ago and has always been accepted as the boundary until recently. what should be done in this situation?

[BenT]

Do you have an instrument survey of your land? I would get a copy of the recent survey that your neighbor had done too. If anything, best to be cordial, open and precise as in keeping some written records etc. 1 acre is a lot of property.

[Newtons_Apple]

The first thing I would do is call up your neighbor's surveyor and ask him to please explain why the fence does not wholly represent the line. While the surveyor was retained by your neighbor, you have every right to understand his professional opinion in this case, since it involves your line. If you do not agree with his professional opinion, then hire your own surveyor.

Your grandfather built a "boundary fence." What exactly does this mean? Are you indicating that he divided a portion of his property, intending to use the fence as the new bound? Or, did he build a fence along his new property, with or without a survey, and potentially got it wrong?

County Plat maps, or tax records, hold no bearing whatsoever in determining a boundary line. They are used merely as an assessment tool for appraisal value(s).

An Alabama real estate attorney would be able to advise you on the apparent acceptance of the fence as the boundary line (boundary by acquiescence comes to mind, or possibly adverse possession). Here is an article for you to read explaining these doctrines. I heavily recommend that you consult an attorney, and most likely get your own survey done if the attorney feels you have a case.

Good luck.

[orthoslogos]

I do not have an instrument survey. I am fairly certain now that my property following the fence line is wider on the ground than what is stated in my deed. I would be willing to make some form of compensation that is around the original price per acre that my grandfather paid but not anything near todays values. I have always had a good relationship with my neighbor and from my point of view i think this would be fair to both since it has been 28 years and I have actually been actively using the property for the past three years since I purchased it.

I have read a little about adverse possession. The fence was built as the boundary to his new property and he could have gotten it wrong but it has been accepted by the neighbors for 28 years now. My property to the fence is showing to be wider than what was in the deeds. Im not big on adverse possession in this case because I consider my neighbor to be a friend. If need be I would like to come to some agreement possibly involving some compensation for the "wedge" mainly so that I can show a free and clear undisputed ownership and maintain the friendship.
Thanks for the info.

[LandSurveyor]

I'm not sure what an "Instrument survey" is. I don't know of a survey done without an instrument or two.

As for the concept of placing a fence 28 or so years ago on the supposed boundary and having both parties (adjoiners) accept it, that would be a boundary by acquiescence rather than adverse possession. The concepts are very different.

[orthoslogos]

Thanks.. I will check into acquiescence...

[BenT]

I'm not sure what an "Instrument survey" is. I don't know of a survey done without an instrument or two.

As for the concept of placing a fence 28 or so years ago on the supposed boundary and having both parties (adjoiners) accept it, that would be a boundary by acquiescence rather than adverse possession. The concepts are very different.

My mistake. It should be complete survey vs. instrument survey. For some reason the word "instrument" got stuck in my head, and this may be from a reply from a title insurer regarding rejection of coverage??? I have to go back and find the notice.

Ben T

[LandSurveyor]

My mistake. It should be complete survey vs. instrument survey.

Not really a mistake. Don't feel bad about it at all. The confusion has been purposely created.

When most property buyers go to a closing which is financed in part by a loan, they look at the settlement agreement and look down the line items. There is a line item cost for "survey" and a line item cost for "title insurance" and since they are paying for them they expect that it's to protect their purchase. Not at all.

The "survey" is just an inspection the title company has ordered and it does not purport to be anything resembling a boundary survey. It will say that in fine print somewhere on the plat, if you even get a copy of it. It is not a boundary survey and it is without legal effect regarding boundaries. Some states will define it as a "mortgage survey" or a "mortgage inspection". The title company will disclaim responsibility for anything an adequate survey would reveal. Only a boundary survey to ALTA-ACSM standards will qualify and nobody wants to pay for that.

The title insurance is only to insure the lender and the purchaser is not covered, unless coverage is explicitly requested and paid for at additional cost beyond what it costs to insure the lender. If you don't specifically ask for it and get your own policy, you don't have title insurance.

Surveyors will typically call a proper boundary survey with all corners found/set with plat provided a "boundary survey". Anything else is not a real survey and will usually have "mortgage" in the title plus a lot more weasel words reducing the whole thing to a fraud on the purchaser who thought to have paid for a proper survey of what was purchased.

[BenT]

Cheers! When I get a chance I have to find more words used in these documents which enable the insurer to slip out of doing anything useful. I can easily say I did not find the acronym ALTA-ACSM anywhere in my insurance jacket. Grrrrh. Thanks!

Sincerely,

Ben T