In residential real estate transactions, the term “out of possession” refers to a situation where a property owner does not have physical control or use of a portion of their land, even though they hold legal title to it. This concept becomes particularly relevant when discussing fences, retaining walls, sheds, driveways, or other structures that are built near or across lot lines—the legal boundaries between parcels of land.
Common Scenarios
A typical example involves a fence that is not aligned with the actual surveyed property line. Suppose a homeowner installs a fence several feet inside their lot, either intentionally or due to a mistaken understanding of the boundary. The strip of land between the fence and the true lot line is technically still part of the homeowner’s property, but they are “out of possession” of it because they are not using or controlling it. In some cases, the neighboring property owner may begin to use that strip—mowing it, planting on it, or even building on it—under the assumption that it is theirs.
Legal Implications
Being out of possession can have legal consequences, especially if the condition persists over time. One major concern is the possibility of a claim of adverse possession. In New York, if a neighbor openly and continuously uses a portion of your land for 20 years, they may be able to claim legal ownership of that portion. Even if adverse possession is not pursued, disputes over boundaries can lead to costly litigation or forced removal of structures.
In real estate transactions, buyers and sellers must be aware of these issues. A buyer may inherit an out-of-possession situation unknowingly, only to face legal or practical challenges later. Sellers are often required to disclose known encroachments or boundary disputes, and buyers are advised to obtain a survey to verify the actual lot lines and the placement of any structures.
Fences and “De Facto” Boundaries
Fences are particularly problematic because they often create a “de facto” boundary—a line that people treat as the property line, even if it’s not legally accurate. Over time, this can lead to confusion and conflict. If a fence is placed well inside the true boundary, the owner may lose practical use of part of their land.
Best Practice
To avoid becoming out of possession, always obtain a professional survey before installing fences or permanent structures. Moreover, if you’re purchasing property, obtaining a survey will identify any possible out of possession issues which a seller is usually obligated to remedy prior to closing.
For more information, call or email The Donaldson Law Firm, PLLC.