PITFALLS OF PURCHASING A PROPERTY BURDENED WITH AN EASEMENT

After a real estate contract is signed, the purchaser’s attorney will usually order a title search. The purpose of the search is to confirm that the seller owns the property and can transfer clear and marketable title at closing. Even when a transaction appears straightforward, the title report may reveal issues that must be addressed before the closing can take place. One common issue is an open mortgage or lien. A prior mortgage may have been paid in full but never formally discharged of record. The title search may also reveal judgment liens, tax liens, unpaid property taxes, or other claims against the seller or the property. These items generally must be paid, released, or otherwise resolved at or before closing. The search may also uncover ownership or deed problems. A prior deed may contain an incorrect legal description, a misspelled name, a missing signature, or an improper acknowledgment. There may also be questions involving a deceased owner, an estate, a trust, a former spouse, or another person who may still have an ownership interest in the property. Survey and boundary issues can also delay a closing. Improvements such as fences, sheds, driveways, garages, decks, or swimming pools may encroach onto neighboring property or violate setback requirements. A neighbor’s structure may also encroach onto the property being purchased. Another frequent concern involves open building permits, certificates of occupancy, and municipal violations. An addition, finished basement, converted garage, deck, or other improvement may have been constructed without required permits or approvals. Depending upon the contract and the nature of the issue, the seller may be required to obtain approvals, cure violations, or provide an acceptable closing credit or escrow. The title report may also disclose easements, restrictions, and rights of way affecting the property. Some are routine, such as utility easements, while others may limit how the property can be used or developed. Purchasers should carefully review any restrictions that could interfere with their intended use of the property. Bankruptcy filings, pending lawsuits, unpaid homeowner association charges, and errors in public records may also create title concerns. In some cases, the issue can be resolved quickly through additional documentation. In others, the closing may need to be delayed while corrective documents, releases, court orders, or municipal approvals are obtained. Most title issues are curable, but identifying them early is important. Prompt review of the title report allows the attorneys, title company, lender, seller, and purchaser to address potential problems before the scheduled closing date and reduce the risk of an unexpected delay.

Few neighbor disputes become heated faster than a fence that is not exactly on the property line. In New York, a misplaced fence can raise concerns about adverse possession—the legal doctrine that, in limited circumstances, allows someone to acquire title to land they do not technically own. Under New York law, adverse possession generally requires possession that is actual, open and notorious, exclusive, continuous, adverse, and under a claim of right for the statutory period. New York’s statute defines “claim of right” as a reasonable basis for believing the property belongs to the possessor. Fences matter because they can be evidence that someone is treating land as their own. New York’s RPAPL § 522 provides that land may be considered possessed where there are acts sufficiently open to put a reasonably diligent owner on notice, or where the land has been protected by a “substantial enclosure.” In plain English, a real fence enclosing a disputed strip may be more legally significant than casual use. But not every fence creates an adverse possession claim. Since New York’s 2008 amendments, RPAPL § 543 states that de minimis, non-structural encroachments, including fences, hedges, plantings, sheds, and non-structural walls, are deemed permissive and non-adverse. The same statute says lawn mowing or similar maintenance across a boundary line is also permissive and non-adverse. That means a small fence mistake, routine yard maintenance, or minor landscaping over the line will not automatically give a neighbor ownership rights. The facts still matter: the size and permanence of the encroachment, whether the disputed area was truly enclosed, how long the condition existed, whether use was exclusive, and whether the possessor had a reasonable basis for believing the land was theirs. For homeowners, the lesson is simple: do not rely on assumptions. Before installing or replacing a fence, get a current survey. If an existing fence appears off-line, address it promptly and in writing. Boundary problems are usually easier to solve early—before years of use, investment, and neighbor expectations turn a small fence issue into a title dispute. This post is for general information only and is not legal advice. For details about your particular situation, feel free to call Chiariello & Chiariello - 516-801-8100

As Independence Day approaches, we find ourselves reflecting with gratitude on the remarkable inheritance we share as Americans. The liberty we enjoy today was not inevitable. It was secured by the courage of those who pledged their lives, fortunes, and sacred honor to the idea that people are endowed with unalienable rights - and it has been preserved across generations by countless men and women who believed those freedoms were worth defending. The framework of law and ordered liberty they built is the same foundation that allows our work, our community, and our families to flourish. We are deeply thankful for that legacy, and for the privilege of practicing law within a system devoted to justice and the rule of law. We are grateful, too, for the trust you place in our firm to help safeguard your own corner of it. This Independence Day, we hope you'll take a moment to honor those who came before us and to celebrate the freedom they passed into our keeping, perhaps even take a moment to read the Declaration (Declaration of Independence: A Transcription | National Archives). From our family to yours, we wish you a safe, joyful, and meaningful Fourth.