When to get an attorney involved...
You think that your neighbor may have planted his new trees on your property. What do you do? We recommend that you act immediately… there is no benefit to waiting, and if you let it go on long enough, the neighbor may try to claim the area through adverse possession.
First, ask yourself a few questions:
- Did the previous owner tell you where the corners were?
- Have you ever been provided with an old survey map?
If your answer is No; see Option A.
If you answer Yes; the first step is to see if you can find any existing property corners. A property corner is a metal pipe or rebar that is driven flush with the ground and topped with a plastic cap (or metal disc on older surveys). There is usually a wooden stake placed close to the corner, called a witness post. The witness post is usually the first item to disappear or mysteriously move. The actual metal corner stands up to nature, although that does not mean it has not been tampered with. The metal corner is usually buried by debris, so a metal detector can help you locate it faster, if you know where to look.
If you are unsuccessful finding the corners, see Option A.
If you find the existing corners and it is obvious the neighbor’s new trees are on your property, see Option B.
OPTION A: Call a surveyor. As part of preparing a free estimate for you, a surveyor will perform research to look for surveys on your property and in the surrounding area. They will then provide you with a price to set property corners, or to recover/reset existing corners if there is evidence of a prior survey. Not all surveyors are created equal, so make sure you hire a firm you can trust to stand by you through the boundary dispute process. That being said, a surveyor will not take sides in a boundary dispute. Their job is to mark the property boundaries, document any encroachments, and assist with resolving the dispute.
Once the survey is complete, the surveyor will provide you with a copy of a *Record of Survey map; if the trees are not on your property and there are no other encroachments, then the problem is resolved.
However, if it is found that your neighbor has planted his new trees on your property, they will now be aware of it; because they will see the clearly marked property boundaries. Continue to Option B.
OPTION B: Since you now know there is an obvious encroachment, we recommend that you have a discussion with your neighbor at this point. But if a peaceful resolution is not possible, we recommend that you contact a land use attorney. The Record of Survey map will serve as evidence of the encroachment and your attorney will want to see this map before proceeding.
* There are State regulations that need to be followed regarding surveys and boundary encroachments. When setting a property corner that has not previously been set, a surveyor must document their work on a map called a Record of Survey. This map will be recorded with the County Auditor’s office. If the surveyor is performing a reset from a prior survey and finds no encroachments, there is no requirement to record a map. However, if in fact there are encroachments, even if there is a prior survey on record, the encroachments must be documented with a new Record of Survey map.