Fence, Driveway, and a 20-Year Understanding
Buyer contracts to buy a 2.1-acre Connecticut property. The survey shows the neighbor's split-rail fence encloses an 18-inch strip of the subject parcel along the entire 300-foot side, and the neighbor's gravel driveway crosses 12 feet onto the property to reach a garage. The seller says the driveway has been used since 1998 and the fence was built in 2001; there is no written agreement. The title commitment shows a 1965 utility easement but no exception for the fence or driveway. The lender requires survey coverage and the buyer plans to add a pool.
1. What interests might the neighbor claim, and how would a Connecticut court evaluate them?
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The fence is an encroachment-not automatically a transfer of ownership. The neighbor could claim adverse possession, but in Connecticut the neighbor must prove actual, open, notorious, exclusive, continuous, and hostile possession for the statutory period, generally 15 years. A boundary fence alone may not satisfy exclusivity or hostility, especially if the parties treated the strip as a neighborly accommodation.
The driveway could support a prescriptive easement under similar open, continuous, and hostile use for 15 years. Use since 1998 may be long enough, but permissive use defeats the claim. Facts matter: who maintained the driveway, whether permission was given, and whether the use was shared.
2. How should the buyer, title company, and lender treat the survey findings?
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The survey creates a title and lending issue. The title commitment does not except the fence or driveway, but the lender will require survey coverage and may except or insure the encroachment only with an endorsement. A known encroachment may be excluded from owner's and lender's coverage unless resolved.
The buyer should not waive the survey exception without advice. The title company should be given the survey and asked what exceptions or endorsements apply; the lender should receive the same information. The buyer's attorney should evaluate marketability and any easement by prescription.
3. What practical closing solutions should the agent recommend?
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Practical solutions: require the seller to remove or relocate the fence and driveway before closing; negotiate a recorded boundary line agreement or quitclaim deed from the neighbor; obtain a written easement for the driveway with maintenance terms; or negotiate a price credit and escrow for a cure. Because the buyer plans a pool, the utility easement and any driveway easement must be located and reviewed.
The agent should not give legal advice, should disclose the survey findings to all parties, and should recommend that the buyer consult a Connecticut real estate attorney before closing.