Is a Survey Title? What Every Buyer’s Agent Should Know About Property Boundaries

That fence, tree line, or retaining wall may not mark the actual property boundary. And discovering that fact after closing can become an expensive problem.

Imagine helping your clients purchase a beautiful home with a spacious backyard, mature landscaping, and a privacy fence. The backyard is one of the primary reasons they fell in love with the property.

Six months after closing, the neighbor commissions a boundary survey. To everyone’s surprise, the survey reveals that the fence extends 12 feet onto the neighbor’s property.

Suddenly, your clients discover that a substantial portion of the backyard they believed they purchased may not actually belong to them.

Can they recover damages from the seller? Does their title insurance protect them? Wasn’t someone supposed to catch this before closing? The answers aren’t necessarily straightforward.

That is precisely why buyer agents should understand the relationship between property surveys, marketable title, and the protections afforded under the GCAAR Sales Contract.

What Does the GCAAR Contract Say About Surveys?

Surprisingly little. Paragraph 15 of the GCAAR Sales Contract (Form 1301, February 2026), entitled “TITLE,” provides that the title report and survey, if required, will be ordered pursuant to the contract. It also requires title to be good of record, marketable, and insurable by a licensed title insurance company without an additional risk premium.

Importantly, the same paragraph expressly states that brokers and settlement agents are not advising the parties concerning matters that include lot size and exact location.

What the contract does not provide is a standalone survey contingency allowing a buyer to terminate simply because a survey reveals an unexpected boundary discrepancy. While the contract requires marketable title, it does not necessarily guarantee that the legal boundaries correspond to fences, tree lines, retaining walls, landscaping, or other visible indicators.

A Survey Is Not the Same Thing as Title

Although closely related, title and surveys address different questions. Title establishes the legal ownership interest being conveyed. A survey helps determine where the property is physically located.

A title examination generally involves reviewing public land records to identify ownership, liens, easements, restrictions, and other matters affecting the property. A survey examines the physical location of the property and improvements in relation to the legal description.

Consider these common situations:

• A backyard fence extends several feet onto a neighboring property.

• A neighbor’s driveway or retaining wall encroaches onto the property being purchased.

• A wooded area or tree line creates the appearance of a substantially larger lot.

• A detached garage, shed, or swimming pool sits partially outside the legal boundaries.

• A boundary wall has been in place for decades but does not follow the actual property line.

None of these conditions is necessarily revealed by a routine title examination. A title company may be able to insure ownership of the legally described property without guaranteeing that every visible boundary indicator accurately reflects its limits.

Can a Boundary Discrepancy Make Title Unmarketable?

Yes. Under certain circumstances, a material boundary discrepancy or encroachment can render title unmarketable. This is where Paragraph 15 of the GCAAR contract becomes particularly important.

Generally speaking, marketable title is title reasonably free from substantial doubt or defects that expose a purchaser to a significant risk of litigation. Maryland courts have recognized that material encroachments may impair marketability. In Zulver Realty Co. v. Snyder, 191 Md. 374 (1948), the Maryland Court of Appeals addressed principles governing marketable title and encroachments. In Klavens v. Siegel, 256 Md. 476 (1970), the court considered a driveway encroachment affecting practical use of the property.

These decisions illustrate that an encroachment can be more than a minor physical irregularity. But not every boundary discrepancy renders title unmarketable.

Scenario 1: The Seller’s Fence Extends Onto the Neighbor’s Property

Suppose the seller owns Lot 12, consisting of approximately 10,000 square feet. The backyard fence, however, extends 10 feet beyond the legal boundary onto Lot 13. The buyer assumed the entire fenced yard belonged to the seller.

Nevertheless, the seller owns all of Lot 12 and can convey good, marketable title to that lot. The buyer’s mistaken assumption about the location of the fence does not necessarily render title unmarketable. Other facts, including representations about the property or competing ownership claims, could change the analysis.

Scenario 2: The Neighbor’s Fence Encroaches Onto the Property Being Purchased

Now reverse the situation. Suppose the neighbor’s fence, driveway, or retaining wall extends substantially onto Lot 12. The buyer is purchasing property that another person is physically occupying or potentially claiming.

Depending on the circumstances, this could raise questions involving adverse possession, prescriptive rights, boundary agreements, or other competing interests. A substantial, unresolved adverse claim could create reasonable doubt about the seller’s title and support an argument that title is unmarketable.

In the first scenario, the buyer may have misunderstood what land was included in the purchase. In the second, the seller’s ability to convey the property free from competing claims may genuinely be in question. Not every encroachment creates an adverse ownership claim, and not every adverse claim renders title unmarketable.

Does Paragraph 15 Give the Buyer a Way Out?

Potentially. Under Paragraph 15, if the settlement agent determines that title is not in the required condition by the settlement date, that date is automatically extended by 30 days to allow the seller to cure. If title remains deficient by the extended settlement date, the buyer may deliver notice declaring the contract void.

Thus, a buyer who discovers a material boundary problem before closing may have contractual protection even without a separate survey contingency. But that protection is neither automatic nor unlimited. The issue must implicate the contractual title requirements; the contract permits certain recorded easements, covenants, conditions, and restrictions; and the settlement agent makes the initial determination regarding the required condition of title. Whether a particular encroachment makes title unmarketable can become a disputed legal question.

A buyer who refuses to settle without a valid contractual basis may risk losing the deposit or incurring additional liability. Relying solely on marketability is therefore not the ideal way to protect a buyer against unexpected survey findings.

The $350–$550 Decision That Could Become a Costly Mistake

In many residential transactions, buyers have the option of obtaining a location drawing, commonly referred to as a location survey, typically costing approximately $350–$550. Because most residential mortgage lenders do not routinely require a new survey, some buyers decline this relatively modest expense.

But a location drawing is not the same thing as a boundary survey. A location drawing generally depicts the approximate location of the home and visible improvements in relation to apparent property boundaries. It may reveal possible encroachments or other issues warranting investigation.

A full boundary survey involves a more comprehensive professional examination to establish the property’s actual boundary lines and corners. Boundary surveys are considerably more expensive than location drawings, often costing several thousand dollars depending on size, complexity, location, and available records. They may also take substantially longer to complete.

For many routine residential transactions, a location drawing is a practical and relatively inexpensive first step. Where exact boundaries are particularly important—or a location drawing identifies a possible discrepancy—a full boundary survey may be warranted. In Maryland, surveying regulations distinguish location drawings from boundary surveys; a location drawing should not be relied upon to establish boundary lines.

Even an inexpensive location drawing may flag a problem before closing, when the buyer may still have contractual options. But ordering either type of survey does not, by itself, create a right to terminate.

Doesn’t Owner’s Title Insurance Protect the Buyer?

Sometimes, but buyers should not assume that it does. Standard owner’s title policies commonly contain exceptions for certain survey-related matters, including boundary disputes, encroachments, and conditions that an accurate survey would disclose. Enhanced homeowner’s policies may provide broader protection for certain risks, subject to policy terms, exclusions, exceptions, and underwriting requirements.

Neither type of policy guarantees that the property’s physical appearance accurately reflects its legal boundaries. And the fact that a lender does not require a survey does not mean a boundary problem cannot exist. Lender approval, marketable title, title insurance coverage, and physical boundary verification are different considerations.

What Happens If the Problem Is Discovered After Closing?

The buyer’s options may become considerably more complicated. There might be a claim under an owner’s title policy, depending on the defect and coverage purchased. Other possible claims could involve misrepresentation, fraud, breach of contract, or related theories, depending on the facts. None is guaranteed.

Contractual title objections that could have been addressed before settlement may be more difficult to pursue after delivery of the deed, although Paragraph 32 of the GCAAR contract preserves provisions not satisfied at settlement. A boundary dispute may require a surveyor, legal counsel, negotiations with neighbors, or litigation. Sometimes the disputed land was simply never part of the property conveyed.

How Buyer Agents Can Better Protect Their Clients

1. Discuss boundaries before writing the offer

Explain that fences, landscaping, and other physical indicators may not reflect the legal boundaries—especially when yard size or configuration is important to the buyer.

2. Recommend an appropriate survey

For many routine transactions, a location drawing offers an economical starting point. Consider a full boundary survey when exact boundaries, improvements, or potential encroachments justify the additional expense.

3. Consider negotiating a survey contingency

A properly drafted contingency can give the buyer time to obtain and review a survey and terminate if it reveals unacceptable boundary discrepancies, encroachments, or other survey matters. Unlike the marketability provision, this protection need not depend on proving a legal defect in title.

Importantly, Paragraph 25 of the February 2026 GCAAR Sales Contract expressly states that its disclosures do not create contingencies and that any desired contingency must be specified through appropriate additional contract terms.

4. Order the survey early

Ordering a survey days before settlement may leave too little time to resolve an issue. A negotiated review period should realistically accommodate the type of survey being obtained.

5. Review the owner’s title insurance coverage

Ask the settlement agent to explain survey exceptions, the availability of enhanced coverage, and any underwriting requirements.

6. Document the buyer’s decision

If the buyer declines a survey or elects not to request a survey contingency, document the decision and instructions clearly.

The Bottom Line

A fence is not necessarily a boundary line. A tree line is not a legal description. And a title insurance policy is not a substitute for determining where the property actually begins and ends.

The GCAAR Sales Contract provides meaningful protection through its requirement of marketable title. In some circumstances, a material encroachment or boundary dispute may trigger that protection. But there is a meaningful difference between receiving unmarketable title and discovering that the property is not as large—or configured—as expected.

The better practice is to address survey concerns before ratification, recommend the appropriate level of surveying, and consider a negotiated survey contingency when physical boundaries matter to the buyer. Because the best time to discover that the fence is in the wrong place is before your client buys the house.

Federal Title & Escrow Company

Serving buyers, sellers, and real estate professionals throughout Washington, D.C., Maryland, and Virginia.

This article is provided for educational purposes and does not constitute legal advice. Contract rights, survey requirements, marketability standards, and title insurance coverage vary by jurisdiction and transaction.