The Facts: I am selling my house. A number of years ago I replaced the fence that enclosed my back yard. The person who is buying my house had my property surveyed and it appears that the fence is about 3 feet inside my property line. The title company is requiring me to obtain a boundary line agreement from my neighbor.

The Questions: Is a boundary line agreement necessary under these circumstances? And if so, why is it needed?

The Answer: The quick answer to your first question is, yes. A boundary line agreement is necessary because the title company will not insure the buyer’s ownership interest in the land between the property line and the fence without a writing in which the neighbor states that he has no claim to the land.

The problem you are having is actually very common, especially when old fences are replaced and when new fences are installed without reference to a survey. When a fence is installed inside a property line, the placement of the fence effectively makes the enclosed property appear smaller and allows neighbors to make use of the land between the actual property line and the fence. For example, by installing a fence 3 feet inside your property line, your neighbors may believe that the 3 feet of land outside the fence is actually theirs and may plant hedges or widen their driveway accordingly. Especially in the case of a driveway that encroaches upon your property, the continued use by your neighbor of that driveway may create an easement or develop into an adverse possession claim. If that happens, your use of your property will be negatively impacted and may result in litigation. In any event, when you sell your property, you will need to address the problems created by the misplaced fence.

Assuming your neighbor does not assert an adverse possession claim stating that the land between the fence and the property line is actually his, the title company will likely require that you and your neighbor enter into a boundary line agreement that describes the exact location of the property line. The agreement will be recorded with both your deed and your neighbor’s deed insuring that future owners can accurately locate the property line regardless of the placement of a fence or driveway. When a fence is only off the property line by a foot or so, the title company may accept an affidavit from the neighbor stating that he has no ownership interest in or claim to the land between the fence and the property line. Since the affidavit is not recorded with the land records, it provides a less costly and less formal resolution to the problem created by a misplaced fence. What type of documentation the title company requires is fact specific.

Boundary line disputes (or potential disputes) like the one you described can delay the closing on a real estate transaction and, if not resolved, may be the basis for a buyer terminating the contract of sale. Since so much is at stake, such disputes should not be taken lightly but should be handled by a real estate attorney with experience resolving boundary line disputes and working with title companies.

By Linda M. Toga, Esq.

The Facts: My mother’s Will contains provisions that are inconsistent with other documents she has signed and with what she told my sister about the distribution of her estate.

The Question: Are the Will provisions void or are the other documents unenforceable?

The Answer: Unfortunately, the situation you’ve described is quite common and often creates a great deal of tension between family members. While it is too late to avoid the problems caused by the inconsistent documents if your mother has already passed, if she is still alive, an experienced estate planning attorney can work with your mother to eliminate the inconsistencies and avoid the resulting problems. As for which of your mother’s documents and agreements now in existence will control the distribution of her estate, that will depend on the types of documents at issue and the provisions of those documents.

A Will only controls the distribution of assets that are owned by the decedent at the time of her death. For example, if your mother left her car to you in her Will but, signed the title to the car over to your sister before she died, you are out of luck. As long as transfer of the title took place during your mother’s lifetime, the provision in the Will is unenforceable because the car was not owned by your mother at the time of her death.

On the other hand, if your mother signed an agreement with your sister stating that her house was to be sold upon your mother’s death and that the proceeds would be divided between you and your sister but, her Will gives you the right to live in the house until you are forty, the Will controls. Unless your sister can demonstrate that your mother lacked capacity to execute her Will or that you unduly influenced your mother and caused her to sign the Will containing the provision that was contrary to her agreement with your sister, your sister will likely have to wait until you turn forty before the house can be sold and the proceeds divided. The reason for this is that agreements generally die with the parties to the agreement. Unless an agreement specifically states that it is binding upon the heirs, successors, assigns and executors of the parties signing the agreement, the agreement is not enforceable after one of the parties dies.

If the inconsistent documents you are concerned about are a Will and a beneficiary designation form signed by your mother, the terms of the beneficiary designations will control. For example, if your mother signed a form stating that her IRA was to pass to your sister but, her Will stated that her entire estate was to be divided equally between you and your sister, the funds in the IRA will pass to your sister. The balance of her estate will pass in equal shares to you and your sister. The same is true with jointly held property and bank accounts that provide for the right of survivorship. In that case, upon the death of one of the joint owners, the property or the funds in the account automatically belong to the surviving joint owner, regardless of any provisions in the deceased joint owner’s Will.

Because of the complexities surrounding the distribution of a decedent’s assets and the issues that arise when there are inconsistencies between various documents relating to estate planning, it is important to review with an experienced estate planning attorney all of the documents and agreements, oral and otherwise, that you may have in place relating to asset distribution. Engaging in estate planning gives you the opportunity not only to learn about the consequences of signing various types of documents and agreements, but also to look at your assets, consider your ultimate goals and take the steps to insure that those goals are met. Only by understanding the relationship between different estate planning strategies and the documents designed to implement those strategies can you be sure that the documents you sign and the agreements you make are consistent and will result in your wishes being honored.

Linda M. Toga, Esq. provides legal services in the areas of litigation, estate planning and real estate from her East Setauket office.

By Linda M. Toga, Esq.

I generally do not revisit a topic if I have discussed it in a prior article. However, based on the number of phone calls I’ve received from clients in response to alarming solicitations they’ve received in the mail, I am making an exception this month.

It has been almost three years since I first warned readers about a scam involving unscrupulous companies that scared property owners into purchasing unnecessary certified copies of their deeds at inflated prices ranging from $59 to $129. Unfortunately, the companies behind the scam are still at it. In fact, the problem has apparently become so widespread that the Suffolk County Clerk recently sent a letter to property owners advising them that there was no immediate need to purchase certified copies of their deeds.

My original article which includes information on how to obtain a certified copy of the deed to your property in the unlikely event you need one, follows. While this article deals exclusively with deeds, there is a lesson to be learned here that applies to all types of legal documents. If you are asked to send money or to take some other type of action in connection with a contract, power of attorney, deed, lease or license, to name a few, it is best to consult an experienced attorney before you act. Scams like the one discussed here are only successful when people make uninformed choices. So please, get expert advice before you act in such matters.

The Facts: I recently received a letter from a company suggesting that I should have a certified copy of my deed. The company offered to get the deed for me for about $85.

The Question: Is this a scan?

The Answer: Yes, it is a scam and one that is quite lucrative for the company making the offer. The reason it is a scam is that most people will never need a certified copy of their deed. In the unlikely event a property owner needs to produce a certified copy of a deed, they can easily obtain one either in person or by mail for a fraction of what the company is charging. Although companies like the one that sent you the letter often refer to an article published by the Federal Citizen Information Center (“FCIC”) to convince property owners that they must have a certified copies of their deeds, it is noteworthy that the FCIC website contains a warning about the deceptive practices of companies that send mass mailings like the one you received to unsuspecting property owners.

How It Works: When you purchased your property, the original deed signed by the seller should have been forwarded to the county clerk for recording. Once the deed was recorded in the county land records, the original deed would have been returned to you, as the new property owner, or to your attorney. If, for some reason, the original deed was not returned to you or your attorney, or if it has been lost, you can obtain a copy of the deed from the county clerk in the county where your property is located. For property in Suffolk County, you can call the Suffolk County Clerk’s Office at 631-852-2000 for information on how to obtain a copy of your deed. If, in fact, you do need a certified copy of your deed, the county clerk can also provide you with a certified copy of your deed. Rather than paying the $85 charged by some private companies, you will only have to pay the county clerk about $5.00, including postage and handling, to get a certified copy of a deed up to 4 pages long.

Linda M. Toga, Esq. provides legal services in the areas of litigation, estate planning and real estate from her East Setauket office.

By Linda M. Toga, Esq,

At least once a week a new client who owns real property with someone else comes to my office with a question about his rights and obligations with respect to his joint ownership of the property. Oftentimes the questions arise because the owners do not see eye to eye as to who is responsible for paying the carrying costs on the property (real estate taxes, insurance, maintenance and repairs) or how the proceeds will be divided in the event the property is sold. Since joint ownership of property can take a number of forms, each conferring different rights and obligations upon the owners, the answers to these questions require an understanding of the different ways in which people can jointly own property.

Individuals who are not married to each other can own real property as tenants-in-common or as joint tenants with right of survivorship. In addition, spouses can own real property as tenants-in-the-entirety.

Owners who are tenants-in-common each own a share of the real property. They have the right to sell or transfer their own share to whoever they want without the consent of the other owners, either during their lifetime or by Will. Tenants-in-common need not own equal interests in the property. For example, if three people own a piece of property as tenants-in-common, each may have a one-third interest in the property but, one may have a one-half interest while the others each have a one-quarter interest. Since the ownership interests may not be the same for each tenant-in-common, it is important that the percentage of the property owned by each tenant-in-common is set forth on the deed. It is also important that tenants-in-common set forth in writing what their obligations are with respect to the carrying costs associated with the property. Generally each owner’s share of the carrying costs is the same as his ownership interest in the property. For example, if four people each own 25% of a property, they are each responsible for paying 25% of the carrying costs. However, the owners may agree to a different arrangements, especially if not all of the owners reside or make use of the property. To avoid confusion and disputes, a detailed agreement setting forth the rights and obligations for each tenant-in-common should be signed by all of the owners. In addition, detailed records should be kept of contributions made by each owner toward the cost of owning the property.

Unlike tenants-in-common, when more than one person owns property as joint tenants with right of survivorship, it is assumed that each owner has an equal ownership interest in the property. Joint tenants are not free to sell or otherwise transfer their interest in the property to a third party without consent of the other joint tenant owners. In addition, a joint tenant with right of survivorship cannot leave her share of the property to someone in a Will. That is because the right of survivorship essentially guarantees that the “last person standing” is the sole owner of the entire property. For example, if there are three joint tenants and one dies, the two remaining joint tenants automatically become the sole owners of the entire property. Upon the death of one of the remaining joint tenants, the survivor becomes the sole owner of the entire property. This is true even if the other joint tenants died with Wills explicitly leaving their interests in the property to a third party. Like tenants-in-common, joint tenants should set forth in writing what their obligations are with respect to the carrying costs of the property and how the proceeds from the sale of the property will be divided if not equally.

Although anyone can own property as tenants-in-common or joint tenants, only spouses, both traditional and same sex, can own property as tenants-by-the-entirety. In fact, in New York, even if the deed does not specifically indicate that ownership is by tenants-in-the-entirety, real property is assumed to be held by spouses as tenants-in-the-entirety absent language in the deed to the contrary. Even if a deed simply provides that the owners are “John Doe and Jane Doe, his wife,” it is presumed that John and Jane are tenants-in-the-entirety. If they wish to hold the property as tenants-in-common, the deed must specify that they are tenants-in-common and must indicate the size of each owner’s interest in the property. The rights and responsibilities associated with tenants-in-the-entirety are identical to those associated the joint tenancy with the right of survivorship. Like joint tenants with right of survivorship, tenants-by-the-entirety cannot dispose of their share as they please. Rather, upon the death of the first spouse, the surviving spouse automatically owns the entire property. A divorce will sever a tenancy by the entirety, resulting in the owners being tenants-in-common.

Because of complexities associated with jointly held property and the potential for unintended consequences, it is good idea to consult an attorney when purchasing property with others to insure that you understand your rights and obligations and have taken the steps necessary to protect your interests.

Linda M. Toga, Esq. provides legal services in the areas of litigation, estate planning and real estate from her East Setauket office.