The following is an overview of boundary lines and legal issues
involving them. These issues can become
very complex. You should always seek the
advice of an attorney and/or surveyor should you have to ever address any of
these issues. Also, this article is
based on laws and rulings in the State of Vermont
Probably one of the most neglected
items when buying or owning property is boundary lines. Yet, when there is a problem, it can become
very expensive and time-consuming endeavor to resolve. If you are planning on buying or already own
property, hopefully the following will make your life easier.
Boundary or property lines are established
by licensed surveyors or civil engineers.
These professionals will do a title and deed search to determine in
writing and on paper the “metes and bounds” or “distances and bearings” of your
property.
Next, your surveyor will do a
field survey to verify and identify your boundaries. While there are many methods for marking
boundaries, surveyors will usually drive iron pins or rebars with plastic id
caps on top of the pin particularly at corner intersections. Often flagging is placed along the line on old
fence lines or on posts or on trees that are directly on the boundary. On the corners, usually flagging is wrapped
three times around the closest trees to the corners.
Make sure you walk the property
lines before you commit in anyway toward a purchase. Ask the neighbors on the other side of the
property line to go with you to confirm their understanding of where the
property lines are. This is very
important to your having “peaceful” boundary lines in the future.
Finally, make sure after buying a property,
that you walk the boundary lines at least once a year. Usually in the fall or the end of the snow
melt in the spring is the best time to do these boundary walks since fence lines
and posts and partial stone walls are easier to locate. Take some flagging with you to replace worn
or missing flagging. Deer seem to love
flagging during a bad winter. An old
surveyor trick is to find a sapling about ten feet tall on the boundary line;
bend the top of the tree to you; tie the flagging at the top of the tree; and
then release. Be careful since you are
creating what loggers call a “spring pole” which will whip upward when you
release the sapling.
However, the larger your parcel,
the more neighbors you will have, and the probability of a boundary line dispute
will increase. Compounded with every
increasing land values, property owners are more protective of their
boundaries.
As mentioned above, licensed
surveyors or civil engineers mark boundary lines based on the evidence they
find. Property owners, real estate
agents and foresters can flag what they think are property boundaries. A blaze is a mark on a tree which is made by
removing the bark with a sharp instrument such as a hatchet. Only surveyors can blaze trees on or adjacent
to the property line. No one can blaze
over a previous blaze. However, blazes
can be painted or flagged by property owners, real estate agents, and
foresters. Only surveyors can place pins on the lines and at the corners. Moving
or removing pins, fence line, stone walls, or fence posts on a boundary by
anyone is a felony.
If two surveys disagree and the
surveyors or property owners cannot reach a compromise, then the matter must be
taken to Court for settlement. The Court
will make its decision based on the preponderance of evidence presented by both
parties and their surveyors. It is
important for you to realize that only the Court can “determine” the location of a boundary line.
Adverse possession is another
issue that arises from questionable boundary lines. If a neighbor mows the grass or uses part of
your land for access or places a campsite on part of your land and does so for
15 continuous years, the neighbor may be entitled to ownership of your land
through adverse possession. If the
neighbor has a survey by a licensed surveyor that shows that it is his property,
right or wrong, he may access the property until the matter is resolved
amicably or by the Court. If you are
not planning on selling your land, and wish to avoid the legal and Court costs,
you may file what is called a contested deed that essentially stops the clock
on any adverse possession. However, the
contested deed “dirties” your title and your neighbor’s title. Before either party can sell their land with
“clear title”, the contested deed must be removed through mutual agreement or by
a Court settlement as to the true location of the boundary line.
To show how complex boundary
issues can become, a boundary line decision was recently made by a Vermont
District Court. For over twenty eight years,
the defendant trespassed by using the plaintiff’s old road to access the
defendant’s property. A contested deed was filed by the plaintiff six years
after the trespassing commenced. To
access his property at different locations, the defendant would remove boundary
fence and trees, a felony in itself.
After cutting the trees, the defendant would destroy the evidence by
bulldozing and using a front end loader to remove the evidence. In 2010, the Vermont Supreme Court agreed
with the plaintiff as to the location of the boundary line. However, in the subsequent damage case, the District
Court did not recognize the continuous tort doctrine and said that the six year
statue of limitations applied and only damages within the last six years would
be awarded.
The message here is if you think
you are going to have to go to Court, make sure to document with photographs
and correspondence all damages. Also,
make sure your attorney files a claim no later than six years after the torts have
commenced. Your estimated legal costs
could easily approach $50,000 or more.
The above verdict may be appealed.
The question becomes how the District Court can say that the continuous
tort doctrine does not apply when the defendant used the plaintiff’s road and
property as his only access to his property since 1984. After the Supreme Court ruling in 2010, only
then did the defendant build a driveway over his property from the main road.
Probably the most frequent issue
in Vermont
In another recent Vermont case,
the forester testified to an extensive tree and stumpage inventory and showed
the maps proving that the logger had committed timber trespass and that it had
to be intentional with all the flagging, stone walls, fencing, and boundary maps. When the logger was on the witness stand and
was shown the survey map, he flipped the map upside down and claimed that was
the way he read and understood the map. As
a result, the Court accepted his excuse that he did not intentionally commit
timber trespass. Thus, the Court did not award treble damages to the plaintiff.
If you heed the information in
this article and follow the advice of your surveyor and lawyer, you should be
able to avoid many future conflicts. As
everyone knows, good fences make good neighbors. Likewise, good boundary lines make good
neighbors.