The Survey Says the Fence Is in the Wrong Place

The survey came back and the fence is three feet inside the neighbour's land, or their shed is on yours, or the driveway you have used for twenty years turns out to cross a line nobody knew was there. Nothing has moved. Somebody has simply measured for the first time in decades, and now it is on paper in the middle of your sale.

This article covers what an encroachment actually is, why these surface at closing rather than before, the routes to resolving one, and which of them are worth the money.

What an encroachment is, and is not

An encroachment is something physical sitting across a boundary: a fence, a shed, a garage corner, a driveway, a retaining wall, eaves overhanging.

It is not the same as an easement, which is a recorded right for somebody to use part of your land for a purpose, usually a utility or access. An easement is meant to be there. An encroachment is not.

And it is not, by itself, a claim of ownership. Ownership is a separate and much longer argument, which is where adverse possession comes in.

Why nobody found it until now

Most Oklahoma residential sales do not involve a new survey. The abstract is examined and the chain of title is checked, but nobody physically measures the ground. Our article on the Oklahoma abstract of title covers what that examination does and does not do.

Fences get built where the last fence was, which is where somebody put one in 1974 without measuring anything.

So an encroachment can sit undisturbed through three or four ownerships and then appear the moment somebody orders a survey, usually because a lender asked or because a buyer wanted one. That is why these arrive at the worst possible moment.

Where long use starts to matter

Long, open use of somebody else's land can eventually become a claim to it. In Oklahoma the limitation framework sits at title 12, sections 93 and 94, and the period usually given is fifteen years of occupation that is actual, open, exclusive, hostile in the sense of being without permission, and continuous.

Published sources disagree about the period and about the shorter routes tied to colour of title or paying taxes, and we are not going to add a confident number to that argument. What matters is the shape of it: a fence that has been in the wrong place for thirty years is a different legal problem from one moved last spring, and only an attorney looking at your facts can tell you which you have.

There is also the softer doctrine of long acquiescence, where neighbours have treated a line as the boundary for many years. Whether that helps you or hurts you depends entirely on which side of the fence you are standing.

The four ways these get resolved

1. Agree it and record something. A boundary line agreement, or one neighbour conveying the strip to the other, signed and recorded. This is the cleanest outcome and it is permanent. It needs an attorney, because a document that fixes a boundary is not a document to draft from a template.

2. An encroachment agreement or licence. The neighbour acknowledges the structure is on your land and is permitted to remain, revocably. This is useful precisely because permission defeats the hostility element, so it stops a clock that might otherwise be running. It also does not solve the problem, it manages it.

3. Move the thing. Sometimes a fence is a day's work and the argument is not worth having. Do not do this without establishing where the line actually is first.

4. Litigate. A quiet title action asks a court to determine who owns what. It works, it is slow, and it costs money that frequently exceeds the value of the strip in dispute. Our article on partition when a co-owner will not sell covers a different dispute with the same lesson about the cost of forcing an outcome.

What a survey actually tells you, and what it does not

Since everything above depends on one, it is worth knowing what you are buying.

A boundary survey locates the corners of your parcel from the recorded legal description and marks them on the ground. That is the document that settles where the line is. A mortgage inspection or location report, which is cheaper and sometimes offered instead, is not the same thing and is generally not intended to be relied on to fix a boundary.

Ask for a survey that shows improvements, so the fence, the shed and the driveway appear on it relative to the line. A plat that shows only the parcel outline tells you where the boundary is and not what is sitting across it, which is the whole question.

What a survey does not do is decide ownership. It measures. If long use has changed the legal position, the survey will still show the record line and the argument continues around it. That is why the survey is the first step and not the last one.

Keep it. A recent survey in your file is worth real money to the next buyer, and it is the document that stops this happening again to somebody else.

What it does to a sale

An encroachment usually appears as an exception on the title commitment, meaning the title company will insure the property but not that particular issue. A buyer's lender may accept that, or may not.

What actually kills sales here is uncertainty rather than the encroachment itself. A buyer who is told there is an unresolved boundary question with no documents attached imagines something much worse than a fence in the wrong place.

So the practical response is documentation. A survey showing exactly what crosses where, a recorded agreement if you can get one, and a written explanation of what is and is not in dispute. Known boundary disputes belong on the disclosure form, which our article on Oklahoma seller disclosure requirements covers.

Our page on selling a house with title problems covers the wider set of things that appear on an abstract, and our page on Tulsa County property records covers searching your own parcel.

Where we come in

Most boundary problems are worth solving rather than selling around. A survey and a recorded agreement between reasonable neighbours costs a fraction of what the uncertainty takes off your price, and once it is recorded it is gone permanently. If your neighbour is reasonable and the strip is small, that is the answer.

Where a cash sale genuinely fits: the neighbour will not engage at all, the encroachment is substantial rather than a fence line, litigation is the only route left and you do not want to fund it, or you have a buyer's lender who has already refused and a deadline you cannot move.

We buy with the exception on the title, which means we take on the argument. That is worth less to you than a resolved boundary would have been, and we would rather you had the resolved boundary. Our page on title problems sets out how these are handled at closing.

The short version

• An encroachment is something physical across a line. It is not an easement and it is not by itself a claim of ownership
• Most Oklahoma residential sales involve no survey, which is why these surface late
• Long use can mature into a claim. The framework is at 12 O.S. 93 and 94 and is usually given as fifteen years, though published sources disagree
• Four routes: agree and record it, licence it, move it, or litigate. The first is almost always best
• Giving permission defeats hostility, which stops a clock that may be running
• It usually shows up as an exception on the title commitment, and uncertainty kills more sales than the encroachment does
• Do not sign anything with a neighbour about a boundary without advice. Some of those documents create permanent rights