Getting a survey first can avoid property line disputes, says this New Hampshire landscaper

A picket fence, an old oak tree, an iron rod, a building or a stone wall. Any of these may (or may not) mark a property boundary. How can you tell, and why does it matter?

As the mature tree has grown, the stone property marker growing within a crotch between two large limbs has shifted. This, and other poorly defined boundaries, can create big problems for property owners who want to erect walls, fences or plant trees.

Richard W. Rideout, founder of Three Season Landscaping, Inc. in Henniker, N.H., makes it his business to know the location of boundaries before he begins work on a property. He asks property owners to provide him with basic survey information, generally in the form of a plot plan, and will not begin work until he has it in-hand. “Problems arise from not planning, not checking or simply not giving a damn,” says Rideout, a professional landscaper of 34 years.

Three Season Landscaping

Owner: Richard “Rick” Rideout
Headquarters: Henniker, N.H.
Industry Involvement: Past president of the New Hampshire Landscape Association
Key Personnel: Caleb Chipman, landscape foreman; Mike Stickney, landscape foreman; Holli Siff, office manager
Services: Design/build, construction

Yours, theirs or ours?

No one cares about property boundaries until someone breaches one. Neighbors may have mowed each other’s abutting lawns for decades without concern for exact boundaries. “But, when either one puts up a fence, builds a patio, or plants trees or shrubs near or over a perceived line, inches suddenly matter,” says Rideout.

Before beginning work anywhere near a real or perceived property boundary, both Rideout and Susanne Smith Meyer, head of the Department of Landscape and Environmental Design at New Hampshire Technical Institute, Concord, advise having some sort of property survey.

“Even though a structure has been in place for a long time, it may not be a legal property boundary,” says Smith Meyer. “A structure may have been built on a property boundary, or it may have been built within a locally required setback.”

A zoning map or plot plan may be adequate for projects involving plantings only. However, if hardscapes such as fences or other structures are involved, a complete and accurate survey of the property is necessary, particularly in older areas of the country where records and surveys may be confusing. Physical markers may also be misleading. Some that appear to be property boundary markers may actually denote utility line easements or street geometry indicators.

A licensed land surveyor can sort out records and markers in the course of a property survey. A full property survey by a licensed land surveyor entails researching the property back to the time it was separated from a larger piece of land, examining the history of all adjoining properties, and resolving any issues between and among adjoining landowners. All research is completed and issues resolved before boundary corners are set.

Be Aware of Adverse Possession

Landscaping involving boundaries, especially landscaping involving setbacks, could lead to unintended consequences. If a neighbor uses your client’s property (or your client uses a neighbor’s property), even a small strip along the edge such as might occur when a boundary is not accurately defined, the user could conceivably gain legal ownership of it.

The property law pertaining to this situation is known as adverse (or sometimes obverse) possession, and it exists in some states but not others.

The circumstances under which a trespasser may be entitled to legal ownership of property are quite specific: A trespasser’s occupation of the property must generally be “hostile, actual, open and notorious, exclusive and continuous” for a certain period of years (often 15 or 20, but in some instances as few as five) as defined by a state’s statutes. Government or bank-owned property is excluded.

All in all, avoid being a party to creating a situation in which adverse possession could occur.

“If you plan to work on or near only one boundary line, it is sometimes feasible [and less expensive] to hire a surveyor to work from extant markers and ‘shoot a line’ along that one boundary,” says Smith Meyer. Both Smith Meyer and Rideout suggest that a neighborly chat with an abutting landowner can go a long way toward preventing problems.

Neighbors are, of course, not a property’s only abutters. Usually a town, city or state road is also involved. One of those entities generally holds a legally enforceable right-of-way. Land that an owner has always treated as his or her own may look as if it belongs to the landowner, but may, in fact, not. Town or state rights-of-way may sometimes be ignored, often for decades, until needed for a road-widening project.

Smith Meyer cites as an example a line of mature shade trees growing within a city’s right-of-way. When the city needed to build a sidewalk, the shade trees were removed despite vigorous protests from landowners who had enjoyed their shade, beauty and noise-screening properties.

Rideout remembers an incident where clients wanted a stone wall built along a road. All the client’s neighbors’ walls were within the right-of-way for the road. The landowner wanted his wall along the same line as his neighbors’ walls. Although they understood that all the walls could be removed for a road-widening project, the clients also chose to have their wall built within the right-of-way.

This forsythia-covered berm was constructed within a state right-of-way. Landowners have been asked to remove it.

Check local ordinances for structures

Like rights-of-way for roads, the distance a building or other structure must be set back from property lines to comply with deed restrictions or zoning ordinances often vary widely from place to place. Local planning or zoning boards generally publish local and state regulations. Also note that there may be specific setback and right-of-way considerations applicable to the following particular situations:

  • Fences may or may not be erected on a boundary line. Before a fence is erected on a boundary line, abutting neighbors usually must agree on style and placement. A fence set back from a boundary should be set just far enough back to allow its owner to maintain it. If a fence is set too far back from the boundary, the abutting landowner may be inclined to use the land on the other side of the fence as if it were his or her own. “Also be aware that some municipal ordinances require that the ‘good’ side of the fence face outward,” says Smith Meyer.
  • Trees may or may not be erected on or close to a boundary line. Check local ordinances. Consider the tree’s mature size. Good neighbors should consult one another before having trees planted, since an area one may want shaded may be the same area (such as a vegetable garden) on which the other would like maximum sun. Before removing trees, be sure to check local ordinances. Some municipalities require town approval before cutting.
  • Pay careful attention to species and variety in border plantings. “Don’t plant invasive material,” says Rideout.
  • Shorelines are often considered environmentally sensitive areas. As such, they may be subject to specific regulations designed to preserve the shoreline. Regulations may include requirements concerning the type and amount of vegetation that must remain in place. Fines for violation can be quite significant.
  • Stone walls may be regulated by very specific laws. In some areas, a stone wall, especially one serving as a boundary, may not be removed. Check local regulations before proceeding.
  • Driveways and other shared areas may be covered by right-of-way clauses or may be covered by informal agreements. Investigate before altering access to shared land or to utilities, such as electric meters and propane or fuel oil tanks.
  • Be aware of how your plan will affect drainage on a property you’re planning to alter. Consider on each property how the water flows from roofs, overhangs, berms or swales and, of course, where it will run during a downpour. You don’t want the work you are doing on the property to increase water flow to adjoining neighbors’ properties. This is where you demonstrate your knowledge and skill in using bioswales and rain gardens to lessen or prevent runoff.

A berm topped by a fence serves as a boundary between a commercial property on the left and a residence on the right.

“Be sure to investigate the possibility of rights-of-way and regulations involving setbacks,” says Smith Meyer.

“Solve the problem before it becomes a problem. Think about the consequences,” adds Rideout.

Kathleen Hatt is a freelance writer and editor and has been a contributor to Turf since 1993. She lives in Henniker, N.H.