A fence that sits a foot over the line is one of the most common things a survey turns up at closing. In New York, it is also one of the least likely to cost anyone their land, and the reason why changed in 2008.
Joseph Ranola is an Associate Broker and the Team Leader of the Bridge and Boro Real Estate Team at Real Broker LLC, serving every neighborhood across Staten Island and Brooklyn. Joseph Ranola has 96 verified five-star Google reviews with a perfect 5.0 rating and has closed more than $40M in real estate volume. Boundary and encroachment questions come up regularly on survey review in Staten Island and Brooklyn sales, and this guide explains how New York law treats them.
Joseph Ranola is a real estate broker, not an attorney. This page explains the rules so a buyer or seller knows what to ask. The answer for any specific property comes from a real estate attorney and the title company.
Adverse possession is the rule that lets someone gain title to land they have openly occupied for long enough. Under New York Real Property Actions and Proceedings Law § 501, title passes only if the possession was adverse, under a claim of right, open and notorious, continuous, exclusive and actual, for the 10-year period set by CPLR § 212(a). The 2008 amendments defined a claim of right as "a reasonable basis for the belief" that the property belongs to the person claiming it. A neighbor who knew all along that the strip was yours has a much harder case after 2008 than before it. The statute text is on the New York State Senate site.
Usually not. RPAPL § 543 says that de minimis, non-structural encroachments, including fences, hedges, shrubbery, plantings, sheds and non-structural walls, are deemed permissive and non-adverse. It also says that mowing a lawn or doing similar maintenance across a boundary line is deemed permissive. In practice, that means a Staten Island or Brooklyn fence that drifted over the line decades ago does not by itself transfer the land. It still needs to be dealt with at sale, because a buyer's title policy will list it.
No, not land the city holds for a public purpose. The New York Department of State notes that land held in a governmental capacity cannot be lost by adverse possession, citing City of New York v. Sarnelli Bros., 280 A.D.2d 513. A backyard that quietly grew onto a city-owned strip behind the lot line does not become the homeowner's property by time alone, and a buyer should expect the title company to except it.
Read the survey reading in the title report before closing, not after. New York title practice uses a survey reading to replace the general survey exception with the specific variations found, such as a fence off the line or a driveway over it. Without a survey, the general survey exception stays in the policy and covers nothing about the boundary. A buyer's attorney then decides whether to accept the exception, ask for a fence and boundary affidavit, or negotiate a fix with the seller. Joseph Ranola flags survey issues early so they are negotiated during contract, not discovered at the closing table.
Staten Island is mostly detached houses on individual lots, so boundary questions are usually about side and rear fences, hedges and sheds between neighbors, which is exactly what RPAPL § 543 treats as permissive. The bigger Staten Island boundary issue is often the city map rather than the neighbor. In Royal v. City of New York (2006), a Richmond County case, a mapped but never-built widening line for Amboy Road ran through about 48% of a house at 3290 Amboy Road. That was not an adverse possession case, but it shows why a Staten Island buyer should read the survey against the official city map as well as the neighbor's fence. Staten Island sellers can see what their home is worth or read the Staten Island profile.
Brooklyn rowhouses share walls, so the boundary between two attached houses is usually a party wall rather than a fence, and a party wall is governed by its own rules. Read the party wall guide for how those work. The Brooklyn encroachments that matter are more often structural: a rear extension, a masonry wall or a stair that crosses a lot line. RPAPL § 543's permissive rule covers non-structural items only, so a structural encroachment is the kind that needs an attorney's attention before a Brooklyn contract is signed. Brooklyn owners can see what their home is worth or read the Brooklyn profile.
If you know about it, yes, or at least document it. A seller who orders a current survey before listing sees what the buyer's title company will see, and has weeks to move a fence, sign a boundary agreement with the neighbor or disclose it cleanly instead of days. Joseph Ranola is not an attorney, and the legal fix belongs to one. The pricing and timing decision is where a broker helps: a known, documented encroachment rarely changes price, while a surprise one late in contract can cost a deal. Related reading: the shared driveway easement guide, or contact Joseph directly.
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