Fence Encroachment, Adverse Possession, and a Schedule B Survey Exception
The parcel is 80 feet wide; the recorded plat shows 82.5 feet. A six-foot cedar fence sits four feet inside the eastern boundary per a 2024 ALTA survey. The seller’s 2015 survey shows the same fence. The neighbor has mowed and planted a garden on the strip for 22 years. The jurisdiction requires 20 years’ adverse possession, payment of taxes, and continuous exclusive use; the strip’s taxes are paid by the record owner. The purchase agreement says “subject to survey; buyer accepts existing fences.” Title commitment Schedule B excepts “encroachments, overlaps, boundary-line disputes, and survey matters.” Buyer wants to build a garage requiring a setback variance. Buyer’s lender requires clean title, closing is in 10 days, and the neighbor says the fence was there when he bought in 2003 and refuses to sign a boundary agreement.
1. What property-rights issue does the fence create, and is the neighbor likely to have acquired title by adverse possession?
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The fence is an encroachment: a physical improvement crossing the recorded boundary. The neighbor’s 22 years of mowing and gardening may satisfy the duration and continuity elements, but the jurisdiction also requires payment of taxes on the disputed strip. The record owner pays those taxes, so the neighbor probably cannot perfect adverse possession on these facts. The neighbor’s use may also be permissive or shared, which defeats exclusivity. That does not make the issue disappear: the neighbor may claim a boundary by practical location, estoppel, or prescriptive easement, and the fence still clouds title. The buyer should not assume the seller’s “never complained” statement resolves it. A survey and a title lawyer’s opinion are needed, and the buyer should consider a boundary-line agreement or quitclaim rather than relying on adverse-possession analysis alone.
2. How should the buyer address the title exception and survey before closing?
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The Schedule B exception means the title insurer will not cover the encroachment or boundary dispute. The buyer’s lender may also require clean title. Before closing, the buyer should obtain the 2024 survey, a title commitment, and a written opinion on the fence. Options include: require the seller to remove or relocate the fence before closing; obtain a recorded boundary-line agreement and quitclaim from the neighbor; negotiate a title endorsement if available; or hold back funds in escrow for a cure. The “subject to survey; accepts existing fences” clause may allocate risk to the buyer, so the buyer should not waive the survey objection without a written amendment. Because the garage needs a setback variance, the buyer should confirm the buildable area with the zoning office before removing contingencies.
3. What are the risks if the buyer closes with the exception and later builds the garage?
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Closing with the exception leaves the buyer with a title defect and possible uninsured risk. The neighbor could sue to remove the fence or claim the strip; the buyer might be enjoined from building or forced to relocate the garage. The lender could declare a default if the encroachment impairs its security. If the garage violates the setback because the buyer relies on the disputed strip, the buyer may be denied a permit or required to seek a variance. The buyer’s best protection is a pre-closing cure, a written boundary agreement, or a specific title endorsement. If none is available, the buyer should price the risk, obtain a survey-based buildable-area plan, and document the decision in writing.