Title issues
Boundary and survey encroachment
A fence, a stoop or a wall over the line is a survey exception, not a paperwork error. How encroachments are found, cured, insured around, and paid for.
What happens when a survey shows an encroachment?
Quick Answer
Survey · Moves the closing date while it is worked
How is it found?
- The new survey shows a fence, garage, stoop, areaway, deck or wall crossing the record boundary line
- The survey reader compares the current survey against the recorded description and finds the dimensions do not close
- A neighbor’s structure encroaches onto the property being bought, which is the mirror image of the same problem
- Air rights, cornices, fire escapes or window projections extend over a lot line or over the street line
- The survey inspection notes long-standing use of a strip of land by someone other than the record owner
How is it cured?
- Order a new survey rather than relying on an old one, because encroachments are created by construction and an outdated survey shows an outdated property
- Measure the intrusion, since a small non-structural projection is treated very differently from a garage sitting on the neighbor’s lot
- Where the neighbor is cooperative, record a boundary line agreement or an easement that fixes the parties’ rights in writing
- Where the structure is the seller’s and the intrusion is meaningful, remove or relocate it before closing
- Where removal is impractical, ask the insurer for affirmative coverage over the specific encroachment rather than accepting a blanket exception
- Where use has been open and continuous for a long period, analyze the adverse possession question before assuming the record line controls
What does clearing it cost?
The survey itself is a fixed professional cost and the cheapest part. Beyond that, a negotiated boundary agreement is drafting and recording, affirmative coverage is an underwriting negotiation, and physical removal is construction. Litigating a boundary with an unwilling neighbor is the outcome everyone is trying to avoid, and it is the one that costs the most.
Who pays for it?
The buyer usually orders and pays for the survey, since it is part of the buyer’s due diligence. Curing what the survey finds is the seller’s, because the seller contracted to deliver marketable title. Where the parties choose to insure over an encroachment instead, the endorsement cost is negotiated.
Does a small encroachment make title unmarketable?
Not automatically. New York treats very small non-structural projections differently from real intrusions, and title practice reflects that: a cornice overhanging a few inches is an exception a purchaser can accept, while a neighbor’s addition sitting on the lot is a defect. The question is the size and the permanence.
Do co-op and condo buyers need a survey?
A co-op purchaser buys shares and a lease, so there is no survey in the ordinary case. A condominium unit purchaser buys real property, and the survey question turns on the building rather than the unit: the declaration and the floor plans describe the unit, and the survey speaks to the land the whole building sits on.
Which violation codes ride along with encroachments?
A fence built past the permitted height is charged directly. Where the encroaching structure was built without a permit, that is its own summons in whichever class the work falls under. Excavation or construction that fails to protect an adjoining structure is a separate and more serious charge, and it is the one that generates neighbor litigation.
What else should you read before closing?
In the glossary
- SurveyA surveyor's drawing of the parcel, its improvements and any encroachments. Lenders on houses and townhouses generally require a current one or a s...
- Survey readingReview of an existing survey to confirm it still matches the property and the record. It determines the wording of the survey exception on the policy.
- EasementA right to use part of another owner's property for a specific purpose. Easements appear as exceptions on a title report and generally survive a sa...
- Adverse possessionA doctrine under which long, open and exclusive use of another owner's land can ripen into legal title. It matters at closing when a survey shows a...
- AppurtenanceA right or improvement that passes with the property when title transfers, such as an easement benefiting the parcel, a parking right or a fixture ...
- EndorsementAn add-on that modifies a title policy's coverage for a defined risk. Endorsement charges come from the filed New York rate structure rather than f...
- Title exceptionA matter the title policy does not insure against, listed on Schedule B. Some exceptions are removed before closing and others are simply accepted ...
Questions this raises
- Which ALTA endorsements are common in New York?ALTA 9, 8.1, 22, 17, plus condominium and survey endorsements: the TIRSA endorsement set that shows up on most New York residential and co-op closi...
- What happens if the title search finds a problem before closing?Schedule B-I requirements are the punch list, not a dead deal. How New York closings clear old liens, missing satisfactions and name hits before th...
- What does title insurance cover?Old liens, recording errors, forged deeds, undisclosed heirs, easements: what a New York title policy covers, what Schedule B excludes, and how cla...
Title issues
- Easement or right of way not shown of recordA driveway, a utility line or a shared alley can burden a property without appearing in ACRIS. How the exception arises, what cures it, and who pays.
- Certificate of occupancy mismatchWhen the certificate of occupancy does not match how a NYC building is actually used, the lender reads it as a defect. How it is found, cured, and ...
- Open permitAn open DOB permit is work the City still shows as unfinished. It rarely kills a NYC deal outright, but it moves the date and it follows the buyer.
Building types
- Townhouse and 1-4 family condo declarationA small building divided into condominium units, where outdoor space, party walls, multiple-dwelling registration and the certificate of occupancy ...
- Standard condoA New York City condominium unit: real property conveyed by deed, recorded in ACRIS, with an undivided interest in the common elements.
The statute itself
- RPAPL 543, adverse possession across a boundary lineNY Real Property Actions and Proceedings Law, full text
- RPAPL 611, encroachments not exceeding six inchesNY Real Property Actions and Proceedings Law, full text
- RPAPL 501, adverse possession definedNY Real Property Actions and Proceedings Law, full text
The violation code
- DOB violation b307 fence exceeds permitted heightWhat the code section requires and how it is cured
- DOB violation b123 failure to protect adjoining structures during excWhat the code section requires and how it is cured
- DOB violation b101 work without a permitWhat the code section requires and how it is cured
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Legal Disclaimer: This page is general information about New York practice. It is not legal advice, it does not account for the terms of any particular contract, building or transaction, and reading it does not create an attorney-client relationship. This is attorney advertising. Prior results do not guarantee similar outcomes.