Is a land swap a good way to clear up boundary line issues? This reader wants help figuring out how to resolve boundary line issues from an old land survey.
Is a Land Swap a Good Way to Clear Up Boundary Line Issues from a Land Survey?
Q: We own a large lot in Massachusetts containing a seasonal cottage that was built about 100 years ago. The original owner decided to build a year-round cottage next to the seasonal one and eventually sold the seasonal cottage to a man who kept it for about eight years.
At the time of the sale, a haphazard boundary line may have been established. About 50 years ago my parents bought the seasonal cottage and decided to have the land surveyed. That’s when my folks learned that they owned the whole northern wall and exterior footpath of the year-round cottage next door along with the seasonal cottage.
When my parents died, I inherited the cottage. The boundary line between these properties is more like a lightning bolt shape. My thought is that if either of us ever decide to sell our respective cottages, this wall/boundary line may present a problem. To us, it would make sense to propose to our neighbor that we do a land swap whereby we’d fix the problem of where the boundary line is located and we would both end up owning the same amount of land.
Could our existing situation become problematic to prospective buyers? Or, is there some rule, unknown to us, whereby our neighbor is now automatically deemed owner of their cottage wall and footpath simply because so many decades have lapsed, sort of like “squatters rights?”
Our neighbors also inherited their year-round cottage and likely don’t know about this boundary issue. If the law deems that our neighbor is the legal owner of their wall and footpath due to all the time that has passed, then it probably makes no sense to propose a land swap as it wouldn’t be a deterrent to prospective buyers.
What Do You Think I Should Do?
A: Your question reminds Sam of some of his law school exam questions. When you buy a home, you usually want to have a current survey of the home and the land. That survey will show the location of the structures on the plot of land. From that survey, you can see where the property boundaries are located and can discern where the home is relative to those boundary lines.
When you live in a new subdivision or newer city, you may have fewer issues relating to boundary line disputes. But in rural areas or where home lots are measured not in feet but acres, you may not know where your land ends and your neighbors’ begins. But even when buying (or owning) these extremely large parcels, you should know whether a neighbor has built something onto the land you are buying or whether something you are buying is actually on the land you want to buy. A survey will help with all of this.
It sounds like many years ago someone drew up an agreement (setting aside whether that agreement was formalized or properly recorded) to divide the original parcel of land. You can clean up any land issues that may have been created by the original owners through a land swap. You can also have a document recorded against both of your properties to set forth the benefits, duties and obligations each owner has to the other given the unique circumstances of the parcels.
You should talk to a real estate attorney first to figure out what the issues are with your land and your neighbor’s land. You might be correct in your assumption that so much time has gone by that each owner has developed certain rights to use the neighbor’s land (like an easement).
How Can Neighbors Redefine Boundary Lines?
Better to have it in writing than to leave it to chance. You and your current neighbor might get along great, but if a different neighbor comes in with different ideas about what to do with the property, it could cause a real problem if that neighbor starts demolishing buildings and putting up new structures based on an impression (instead of fact) of what they own or might own.
As we said, there are a number of ways you can handle your situation. Yes, you might work things out with a land swap. In some places, you might need approval by various governmental authorities to change the configuration of your land, and the process could be costly. If you don’t need much in terms of governmental approvals for a land swap and you find that a land swap works for both of you, pursue that option first.
If a land swap won’t work, then a reciprocal easement and covenant agreement might. Future owners can have the certainty of knowing what they are getting into and understand the situation upfront.
We have to say that your situation is quite complicated and could result in a complicated document, given that part of the cottage does not appear to sit on land owned by that cottage owner. And, you’re right: If you do nothing, future owners on both properties could balk at buying the homes based on boundary issues and the likelihood of potential disputes.
We prefer to see you and your neighbor put something on paper to clean up what was done years ago and make sure future owners have some certainty in what they are buying when they close on the purchase of either home. But, please talk to a real estate attorney more about your situation.