Property owners sometimes mistakenly assume that an existing fence is the same as the property line. They are shocked to discover that the fence in question may be many feet in error when a survey is performed.
Unless the subject deed specifically refers to following a fence a competent land surveyor will consider the fence to be low in the evidence chain in comparison to other more favorable evidence called for in the deed. If the subject deed contains such language as “thence with a fence”, “along a fence” or “following a fence” then it is a safe bet that the fence is the property line if the fence in question is the original fence called for in the conveyance. Otherwise, the surveyor must follow the explicit instructions contained in the deed while ignoring the fence, unless the fence is the only remaining evidence of the boundary.
This scenario is especially problematic when a purchaser has acquired a piece of property under the assumption that the fence is “obviously” the boundary therefore they believe no property survey is needed.
Warning: Never take the word of a real estate agent or an existing property owner about where the boundaries lie.
The former should never be giving advice relative to property boundaries in the first place. If a real estate agent describes the land boundaries to you, then it is time to find another agent. The only advice they are qualified to give is to instruct one to hire a competent professional surveyor to locate the property boundaries. I have encountered countless property owners who have exclaimed “But the real estate agent told me (fill in the blank)!” only to find out they were misled. This is very much a violation of state standards of practice issued by the Tennessee Real Estate Commission.
The existing property owner is rarely intentionally deceptive, but is often mistaken about where the boundaries lie unless they have had the property recently surveyed. Lines of occupation often differ from actual boundaries.
When purchasing real estate, a good survey should be considered essential. Unknown problems such as disputes, adverse claims or encroachments may arise months or years later. If they do, Title Insurance will not help. Title Insurance does not protect the buyer against defects that could have been found by obtaining an accurate survey.
Click here for an interesting court case where a land surveyor was found to be negligent because he surveyed to an existing fence line while ignoring the deed calls. A few pertinent quotes from the case:
“Although the fence was not mentioned in any description of record, and had a “bow” in it, it showed signs of such antiquity that [the surveyor] concluded that it had been accepted as a boundary…”
“The extension of the fence line on which [the surveyor] relied, being neither marked nor surveyed, and being unrelated to any monument described of record, fails to meet the criteria of ‘artificial monuments and established lines, marked or surveyed’…”
“The recorded distance should have prevailed.”
“We conclude that [the surveyor] was negligent as a matter of law…”
While it is certainly the surveyor’s duty to locate and describe fences near the boundary, the two do not necessarily coincide.
*Note: Adverse possession is a special case not addressed here. Even if adverse possession is relevant to a particular case, this is a determination that cannot be made by a surveyor. The surveyor shows the location of record boundaries and lines of occupation to the best of his ability. Only courts can decide the location of actual property rights in an adverse possession dispute.
This writing is the opinion of the author. Nothing herein constitutes legal advice. Anyone seeking legal advice is advised to seek out a competent attorney.