The Boundary Fence That Moved
Dana buys a 2.3-acre parcel in a rural county. The deed describes the lot as 'Lot 7, Block 2 of Cedar Ridge Subdivision, as recorded in Plat Book 14, Page 32.' A wire fence has enclosed the easternmost 0.4 acre for 23 years; the seller's family built it after a surveyor's error and treated that strip as their own, mowing it, grazing two horses on it, and paying the county's agricultural tax classification on it. The neighboring owner, who holds record title to the strip as part of Lot 8, never objected but also never gave permission. Dana's lender requires a new survey, which shows the fence encroaches 40 feet onto Lot 8. The neighbor now demands the fence be removed before closing.
1. Dana asks whether the plat reference alone protects her. Explain what the legal description controls and whether the fence line could have become the true boundary.
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The plat reference is a recorded plat description - it incorporates the subdivision map by book and page, and that map, not the fence, defines the record boundary of Lot 7. A metes-and-bounds or plat description controls over monuments only when the monument is called for in the description; a fence built by mistake is not a called-for monument.
However, the seller's family may have acquired the strip by adverse possession if the state's elements are met: actual, open and notorious, exclusive, hostile, and continuous for the statutory period. Mowing, grazing, and paying agricultural taxes are strong evidence of actual, open use; 23 years likely exceeds most statutory periods (commonly 10–20 years, sometimes longer). The 'hostile' element is usually satisfied by use without permission, even if the original mistake was innocent - but a few states require the claimant to have believed in good faith that the land was theirs, and some require payment of taxes. Because the neighbor never objected, there is no interrupted possession.
Practical answer: the plat controls title on paper, but a court could quiet title in the seller's favor based on adverse possession. Dana should not close until the neighbor signs a boundary line agreement or quitclaim, or the seller delivers a quiet title judgment or title insurance endorsement covering the discrepancy.
2. The title company offers a survey exception and an endorsement. What risk remains, and how should Dana allocate it?
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A standard survey exception excludes from coverage 'facts that an accurate survey would show' - exactly the 40-foot encroachment. An encroachment endorsement or a survey-based endorsement can restore coverage for the encroachment, but only for the specific structure described, and it typically does not insure marketability against an adverse possession claim.
Residual risks: (1) the neighbor could sue to eject and the seller's adverse possession claim might fail on a hostile/good-faith technicality; (2) the lender's survey exception could trigger a loan exception; (3) the encroachment could cloud future resale.
Allocation strategy: require the seller, as a closing condition, to obtain either a recorded boundary line agreement or quitclaim from the neighbor, or a quiet title action; alternatively, negotiate a price reduction equal to the disputed strip's value plus legal costs and have the seller escrow funds. Dana should insist the endorsement name both her and the lender and should confirm the endorsement covers the fence, not just the house.